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From Products Liability Law Daily, May 10, 2016

Puerto Rico’s high court asked to resolve contribution among joint tortfeasors when municipality at fault

By Pamela C. Maloney, J.D.

After determining that expert testimony on alternative designs proffered on behalf of a motorist who died in an accident involving a truck with an allegedly defective underride guard was admitted properly, the U.S. Court of Appeals for the First Circuit certified to the Puerto Rico Supreme Court the question of whether the truck’s manufacturer should be joint and severally liable for the entire amount of the damage award or whether its liability was limited to the amount of fault allocated to it by the jury (Quilez-Velar v. Ox Bodies, Inc., May 9, 2016, Lynch, S.).

A motorist was killed when the hood of her 2004 Jeep Liberty under-rode a dump truck that was stopped in the left lane of an expressway while municipal employees did maintenance work in the area. The motorist apparently realized at the last minute that the truck ahead of her was not moving, and she swerved to avoid a collision. However, the driver’s side of her Jeep impacted the truck, and the truck’s bumper penetrated the driver’s side roof and windshield of the Jeep, striking the motorist in the face and head. Relatives of the motorist filed a product liability action against Ox Bodies, Inc., and Truck Bodies & Equipment International, Inc.—the companies that designed and manufactured the dump body of the truck—claiming that they had failed to design or manufacture the dump truck’s rear guard properly. Having determined that Section 16 of the Restatement (Third) of Torts: Products Liability, commonly known as the Fox-Mitchell rule, applied to the action, the district court determined that the jury would be instructed to apportion liability among the defendants, the decedent, and other culpable parties [see Products Liability Law Daily’s February 4, 2015 analysis].

Following a 12-week trial, the jury found the manufacturer strictly liable for the defective design of the underride guard and awarded the motorist’s family members damages totaling $6,000,000, assigning 20 percent of the fault to the manufacturer and 80 percent of the fault to the Municipality of San Juan. The presiding magistrate then ruled that under Puerto Rican law, the manufacturer should be held responsible only for 20 percent of the damages award, which equaled $1,200,000. The motorist’s family appealed the order limiting their recovery while the manufacturer challenged the admissibility of the estate’s expert’s alternative design testimony.

Expert testimony. The manufacturer argued that for an expert’s testimony regarding the availability of an alternative design to be admissible under Daubert, the expert must have tested the alternative design either physically or using computer modeling, which the expert in this case failed to do. However, the First Circuit has never adopted a rule that an expert himself must have tested an alternative design, much less build one, and the court declined to adopt either requirement as a bright-line rule or to apply it to the case at bar.

The First Circuit went on to find that in this case, the record permitted a factfinder to conclude that the estate’s expert had done some testing, which supported the lower court’s ruling that there were alternate methods of testing from which the jury could evaluate the reliability of the expert’s opinions. The methods relied on by the expert included crash test information from several industry studies and crash test data done under contract with the National Highway Traffic Safety Administration. In addition, the expert had tested his design using stress calculations and photogrammetry analysis, both acceptable test methodologies. The manufacturer’s argument that the estate’s expert failed to conduct certain calculations went to the weight of the expert’s testimony and in this case, the manufacturer had been given ample opportunity to cross examine the estate’s expert and to use its own expert in rebuttal, which the manufacturer did. Thus, the court concluded that the magistrate judge committed no error in admitting testimony on alternative designs proffered by the estate’s expert.

Joint and several liability. Based on prudential decisions of the Puerto Rico Supreme Court, the magistrate judge held that when a defendant’s right to contribution in a tort action is lost as a result of a joint tortfeasor’s statutory immunity, the defendant should be held liable for that portion of the damages that reflect its own fault. While the manufacturer urged the First Circuit to affirm this holding, the motorist’s family challenged the magistrate’s ruling, arguing that the cap on municipal damages applicable in this case was not analogous to the statutory immunity afforded under the state’s worker’s compensation statute, which was at play in the cited cases. Because the municipal damages cap permits lawsuits up to a certain amount of damages, the family contended that the manufacturer would be able to seek at least partial contribution from the City of San Juan, up to the limits of its insurance policy. The family also contended that Puerto Rico case law almost always prioritized a plaintiff’s recovery through joint and several liability and argued that the risk of non-payment by one debtor historically has been placed on the defendants pursuant to the general rule of joint and several liability, and not on the plaintiff. Under the family’s theory, even if the manufacturer lacked a right of contribution in fact or in law, the general rule of joint and several liability should apply, thus making the manufacturer liable for the totality of the judgment and bearing any risk of loss caused by the inability to obtain contribution from other joint tortfeasors.

Noting that the allocation of risk is an important question of Puerto Rican tort law and was determinative of the appeal at issue, the First Circuit explained that it lacked sufficient guidance to allow the court to reasonably predict which argument the Puerto Rico high court would choose. Thus, the better course was to certify to the high court the question of: whether the magistrate judge was correct in limiting the damages against the manufacturer to$1,200,000 and denying the motorist’s family a joint and several damages award of $6,000,000 against the manufacturer.

The case numbers are 15-1466 and 15-1533.

Attorneys: Jose L. Ubarri (Ubarri & Roman Law Office) for Berardo A. Quilez-Velar. John M. Roche (Colon & Colón PSC) for Ox Bodies, Inc.

Companies: Ox Bodies, Inc.

MainStory: TopStory ExpertEvidenceNews DamagesNews DesignManufacturingNews MotorVehiclesNews MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews

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