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From Products Liability Law Daily, August 25, 2015

Treestand product defect, inadequate warning claims must be reexamined in light of reversal on expert testimony ruling

By Pamela C. Maloney, J.D.

An engineer’s training and experience qualified him to testify as an expert on behalf of a hunter who was injured when the ratchet straps on a hunting treestand broke, the U.S. Court of Appeals for the Sixth Circuit ruled, reversing the federal district court’s decision to exclude the witness’s testimony. Because the witness’s testimony had been erroneously excluded, the district court’s grant of summary judgment on the hunter’s product defect claims, which had been based on the lack of expert testimony, also was reversed and remanded with instructions to allow the hunter to proceed under the consumer expectation test. Finally, the hunter’s failure-to-warn claim, which was summarily dismissed on the ground that the hunter failed to prove that the manufacturer’s warnings were inadequate to apprise him of the danger of deterioration, also was reversed (Bradley v. Ameristep, Inc., August 24, 2015, Siler, E.).

Background. The hunter, King Bradley, Jr., used two ratchet straps to secure a treestand for one month in the fall of 2009, after which he stored the straps in his garage. He used the same straps to secure the treestand in the spring of 2011, returning in the fall of that year to use the treestand to bow hunt. After climbing the tree and sitting down on the stand, the ratchet straps broke, causing the hunter and the treestand to fall more than 25 feet to the ground. The hunter brought strict products liability, strict liability failure to warn, negligent failure to warn, and negligent design claims against Prima Vantage, the designer and manufacturer of the straps, and against Ameristep, Inc., the distributor. The defendants moved for summary judgment and to preclude or limit the trial testimony of the hunter’s experts.

Litigation history. In its initial ruling [see Products Liability Law Daily’s June 9, 2014 analysis], the federal district court determined that the hunter had failed to prove that the manufacturer’s warnings were inadequate to apprise him of the danger of deterioration. The court also found that the hunter’s two experts were not qualified to testify in this matter. A few months later [see Products Liability Law Daily’s August 14, 2015 analysis], the district court refused to reconsider its exclusion of the product defect testimony proffered by the hunter’s experts and its subsequent grant of summary judgment to the manufacturer and distributor of the ratchet straps for a treestand.

On appeal, the hunter challenged the district court’s refusal to qualify his registered, professional engineer as an expert witness for the product defect claims, the district court’s refusal to apply Tennessee’s consumer expectation test to the product defect claims, and the dismissal of the failure-to-warn claims and the loss-of-consortium claim.

Expert testimony. One of the proffered witnesses, a registered professional engineer, intended to testify that the manufacturer of the straps had failed to include in the ratchet straps an ultraviolet (UV) inhibitor that would have prevented the degradation of the polymers when exposed to sunlight during the time the hunter claimed he left the straps on the treestand. He also was expected to testify that the manufacturer and the distributor failed to instruct consumers on how to recognize when the straps were no longer safe for use with a treestand. Although the witness’s qualifications contained numerous general attestations of expertise in materials analysis, the district court had focused on his more specific references to metallurgical expertise as the foundation for a negative inference that the engineer did not possess the necessary qualifications for other types of material analysis, including polypropylene polymers.

According to the Sixth Circuit, the witness’s credentials clearly marked him as an expert in materials failure analysis—not merely an “engineer,” as the district court had described him. The witness had more than 35 years of experience analyzing the forces and conditions that led to product failures and had served as an instructor in materials analysis and microscopic analysis for university students, professional organizations, and state agencies. During the course of his career, he had conducted materials failure analysis on “all types of polymer materials,” and on five or six occasions he had specifically analyzed failures of polymer straps or webbing in “load-bearing applications.” In light of this experience, the Sixth Circuit ruled that it was an abuse of discretion for the district court to conclude that the engineer’s expertise was solely in the area of metallurgy and then to rely on that conclusion to rule that Powell was unqualified to provide expert testimony about the ratchet straps.

Consumer expectation test. Having excluded both of the hunter’s experts from testifying about the alleged defects in the ratchet straps, the district court went on to conclude that there was no evidence to support the hunter’s product defect claim. The Sixth Circuit held that this conclusion must be reversed because it misconstrued controlling Tennessee law on the necessity of expert testimony to prove the existence of a product defect. Under the consumer expectation test, “a plaintiff is required to produce evidence of the objective conditions of the product as to which the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.” Although the Sixth Circuit agreed with the manufacturer that the ordinary consumer might not understand the precise properties of the chemicals involved in making the straps or the precise rate of deterioration that might occur over time, the court explained that it was reasonable to believe that the ordinary consumer had enough experience with polypropylene straps, tie-downs, or webbing to have some expectation of the lifespan of those products when exposed to the elements. A ratchet strap is a simple device and there was no question in this case that the catastrophic failure of the ratchet straps was the proximate cause of the hunter’s injuries. Thus, the hunter should have been allowed to proceed under the consumer expectation test and to rely on lay testimony with regard to the facts and circumstances surrounding the straps’ failure.

Inadequate warnings. The Sixth Circuit further concluded that there were genuine issues of material fact surrounding the adequacy of the warnings included with the ratchet straps. The appellate court recognized that the hunter repeatedly acknowledged that it was better to avoid exposing the ratchet straps to the elements for “long periods of time” in order to avoid their deterioration, and his established routine of physically examining various aspects of the straps at regular intervals clearly indicated his awareness and understanding of the risks associated with a potential failure of the straps and the need to avoid such failures. However, the hunter’s awareness and understanding of the risks did not extend to knowledge of how to effectively avoid or minimize those risks. He had received no guidance on how quickly the straps could deteriorate or how signs of deterioration might manifest themselves. In addition, even the simple directive contained in the warnings to avoid exposure to the elements contained a latent ambiguity.

Having ruled that the consumer expectation test could be applied to the treestand ratchet straps in this case, the hunter was entitled to have a jury employ its own sense of whether the relevant warnings provided an ordinary consumer with knowledge of how to effectively avoid or minimize the risks associated with the treestand ratchet straps. Thus, the district court’s summary judgment ruling on the hunter’s failure-to-warn claims also was reversed.

The case is No. 14-6087.

Attorneys: Timothy W. Monsees (Monsees & Mayer, PC) for King Bradley, Jr. Milton S. Karfis (Clark Hill PLC) for Ameristep, Inc., and Primal Vantage Company, Inc.

Companies: Ameristep, Inc.; Primal Vantage Company, Inc.

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