Unanimous Fourth Circuit victory for Yamaha in products liability action

Rick Mueller

Heather Counts

Jeaniene Jackson

In a published, unanimous opinion, handed down February 20, 2018, the United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of a products liability action against Yamaha Motor Corporation, U.S.A. & Yamaha Motor Co., Ltd.

In August 2016, a Federal court excluded the inadequate warnings opinion (but not the design defect opinion) of a plaintiff’s expert witness, Dr. Anand Kasbekar, finding his testimony regarding Yamaha's warnings unreliable in a personal watercraft (PWC) case brought by Plaintiff, Deborah Hickerson. Subsequently, based upon the fact that the Court found the warning to be “adequate as a matter of law” and based upon Comment J to the Restatement (Second) of Torts § 402A (1965), the district court granted Yamaha's motion for summary judgment, on both claims.

An appeal was taken asserting that (a) Plaintiff did not need a warnings expert to submit the warnings claim to the jury, and (b) if the design defect opinion was not excluded, summary judgment should not have been granted. Plaintiff retained Professor David G. Owen, an esteemed law professor to handle the appeal. Professor Owen is the author of Owen & Davis on Products Liability, as well as the hornbook/treatise Products Liability Law, and was the American Law Institute’s Editorial Advisor for the Restatement on Product Liability. He had been favorably cited by the Fourth Circuit in over 30 different opinions. The professor’s primary argument was that Comment J was bad policy and bad law and that the Third Restatement has rejected that position.

The Fourth Circuit affirmed. On the warnings claim, the Court stated that "Hickerson relied to her detriment on Dr. Kasbekar's expert testimony as the exclusive support for her warnings claims." On the Professor’s policy arguments, the Court noted that "her counsel [the Professor] also speculates that Dean Prosser . . . simply erred in drafting Comment J." This point was rejected. The Fourth Circuit also noted that "Hickerson urges us to rewrite the text of Comment J despite its lack of facial ambiguity. She would have us ignore . . . decisions of South Carolina . . . based upon [the Professor’s] academic theories and policy arguments. She has presented no 'persuasive data' that South Carolina . . . would apply Comment J differently . . . AFFIRMED."

TC (Rick Mueller, Heather Counts, and Jeaniene Jackson) handled the entire appeal