MEMORANDUM OPINION
DONALD C. NUGENT, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss the Bilateral Class Action Complaint pursuant to Fed.R.Civ.P. 12(b)(6). (ECF #11). For the reasons that follow, Defendant's Motion is granted.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs Stephen Patterson and Hyatt Rhine bring this "bilateral class action complaint" against Defendant Rite Aid Hdgqtrs. Corp. ("Rite Aid") on behalf of themselves and all others similarly situated. (Complaint at 1.) Both Mr. Patterson and Mr. Rhine filed claims with the Ohio Bureau of Workers' Compensation ("BWC") for work related injuries. Mr. Patterson filed his claim on March 20, 1987 and Mr. Rhine filed his claim on November 8, 2002. (Id. at ¶¶ 20, 30). Between April, 2007 and February, 2009, Mr. Patterson purchased prescription drugs from Rite Aid in connection with his BWC claim. (Id. at ¶ 21). Mr. Rhine purchased prescription drugs from Rite Aid in connection with his BWC claim between April and August, 2006. (Id. at ¶ 31) The BWC through its pharmacy benefit manager ("PBM") initially failed to approve Plaintiffs' purchase of prescription drugs through the on-line point of sale adjudication system. (Id. at ¶¶ 21-22, 31-32). As a result of the initial denial, Plaintiffs purchased the prescription drugs from Rite Aid as point of sale cash customers, paying amounts in excess of the BWC approved charges. (Id. at ¶¶ 23, 33)
Plaintiffs bring their claims against Defendant Rite Aid individually and as a representative of a class of similarly situated defendants defined as all pharmacy service providers authorized by the Bureau of Workers Compensation ("BWC") to sell medication to Ohio workers' compensation claimants, who during the period extending as far back as the applicable statute of limitations permits, sold pharmacy products to the Plaintiff Class members at the point of sale as cash customers, and later failed or refused to refund to the Plaintiff Class members the difference between the full amount paid and the amount reimbursed under the BWC fee schedule. (Complaint, ¶ 51) This Opinion addresses only the claims against named defendant Rite Aid.
Defendant removed this action from the Court of Common Pleas for Cuyahoga County, Ohio asserting that this Court has jurisdiction under the Class Action Fairness Act of 2005 ("CAFA", 28 U.S.C. § 1332(d)(1)(B) and 28 U.S.C. § 1453. Defendant asserts that this class action could have been originally filed in this Court pursuant to 28 U.S.C. § 1332(d) because diversity of citizenship exists between Defendant, a Delaware Corporation with its principle place of business in Pennsylvania, and one or more members of the putative class who are citizens of Ohio. Further, the amount in controversy, in aggregate, exceeds $5,000,000.
Under BWC's outpatient pharmacy benefit program, pharmacists submit drug bills directly to BWC at the point of service through BWC's pharmacy benefit manager ("PBM"). (Complaint, ¶ 12) In some circumstances the PBM may deny reimbursement in which case the worker must either pay the retail price charged a regular point of sale cash customer or decline to buy the prescription drug.
In August, 2009, the BWC/PBM reimbursed Mr. Patterson for some of the prescription drugs he had purchased from Rite Aid between April, 2007 and March, 2009 in the amount allowed under BWC's fee schedule, which was less than the amount Mr. Patterson paid Rite Aid for the drugs. The difference between the amount reimbursed by the BWC and the amount charged by Rite Aid was $659.16. (Id. at ¶¶ 34-36).
In November, 2007, the BWC/PBM reimbursed Mr. Rhine for some of the prescription drugs he purchased from Rite Aid between April and August, 2006 in the amount allowed under BWC's fee schedule which was less than the amount Mr. Rhine paid Rite Aid for the drugs. The difference between the amount reimbursed by the BWC and the amount charged by Rite Aid was $595.73. (Id. at ¶¶ 34-36).
Both Plaintiffs requested that Defendant refund the difference between the cash price they paid to Defendant and the BWC scheduled price. In both cases, Defendant refused the refund requests. (Id. at ¶¶ 27-28, 37-38).
The Complaint sets forth six causes of action: violation of Ohio Rev. Code § 4121.44(K) (Count One); breach of contract (Count Two); unjust enrichment (Count Three); violation of Ohio's Consumer Sales Practices Act, Ohio Rev. Code § 1345.014 et seq. (Count Four); money had and received (Count Five); and declaratory and injunctive relief (Count Six).
Defendant has moved to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Plaintiffs have filed a brief in opposition and Defendant has filed a reply brief in support. The motion is now fully briefed and ready for decision.
STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a defendant to test the legal sufficiency of a complaint without being subject to discovery. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). In evaluating a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, accept its factual allegations as true, and draw reasonable inferences in favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitations of a cause of action's elements, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009). See also Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000) (court will not accept conclusions of law or unwarranted inferences cast in the form of factual allegations.)
In order to survive a motion to dismiss, a complaint must provide the grounds of the entitlement to relief, which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is,"[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted); see Association of Cleveland Fire Fighters v. City of Cleveland, No. 06-3823, 2007 WL 2768285, at *2 (6th Cir. Sept. 25, 2007) (recognizing that the Supreme Court "disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957)"). Accordingly, the claims set forth in a complaint must be plausible, rather than conceivable. See Twombly, 550 U.S. at 570.
On a motion brought under Rule 12(b)(6), the court's inquiry is limited to the content of the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. See Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).
DISCUSSION
Defendant asserts that each of Plaintiffs' purported claims fails to state a claim upon which relief may be granted. The Court will address each claim in turn.
1. Violation of Ohio Rev. Code § 4121.44(K)
Plaintiffs allege that Defendant is a health care provider under O.A.C. § 4123-6-01(G) and is prohibited under Ohio Rev. Code § 4121.44(K) and O.A.C. § 4123-6-07 from collecting or assessing from Ohio workers' compensation claimants any amount for covered services in excess of the amount allowed and paid by the BWC. Further, Plaintiffs allege that Rite Aid is not permitted to retain funds for prescription drugs that are in excess of the allowed amount paid by the BWC. (Complaint, ¶¶ 65-66) Rite Aid's acts allegedly constitute "unlawful balance billing" in violation of § 4121.44(K). (Id. at ¶ 67).
Rite Aid argues that Plaintiffs' claim under § 4121.44(K) must be dismissed because § 4121.44(K) does not require a health care provider, such as Rite Aid, to make reimbursements and because § 4121.44(K) does not provide a private cause of action. § 4121.44(K) states:
No health care provider, whether certified or not, shall charge, assess, or otherwise attempt to collect from an employee, employer, a managed care organization, or the bureau any amount for covered services or supplies that is in excess of the allowed amount paid by a managed care organization, the bureau or a qualified health plan.
Rite Aid contends that § 4121.44(K) only applies to "covered services". In this case, Rite Aid sold the prescription drugs to both Plaintiffs as cash customers after the PBM refused to approve the purchases. Thus, at the time of purchase, the prescription drugs were not "covered services" within the meaning of § 4121.44(K). Because Plaintiffs' prescription drugs were not covered, Rite Aid and Plaintiffs were free to enter into an express contract for the sale of outpatient medications at the retail price that all other non-covered customers pay. As such, Rite Aid argues, the sale of these prescription drugs did not fall under § 4121.44(K). Rite Aid notes that Plaintiffs do not dispute that Rite Aid did not violate § 4121.44(K) when the Plaintiffs initially purchased the prescriptions at issue at retail price. It was only when Rite Aid refused to refund the difference between the price paid and the BWC schedule amount after the coverage determination was changed that Plaintiffs allege that § 4121.44(K) was violated. However, Defendant stresses that § 4121.44(K) does not mandate any such reimbursement, as the terms "reimburse" or "refund" do not appear in the provision. Moreover, to find a reimbursement mandate in the provision the Court would have to read words and an entire statutory program into the statute that does not exist. Defendants point out that under Plaintiffs' proposed statutory scheme, there are numerous unanswered questions and issues such as whether it would be a provider's obligation to track all denied claims and initiate reimbursement if the coverage decision changes or whether it would be a claimant's responsibility to request a refund and under what time frame?
Plaintiffs argue that Rite Aid cannot rely on the initial point of service decision that a particular prescription is not covered because the final decision on a claim lies with the Industrial Commission. Thus, Plaintiffs contend that § 4121.44(K) would require a provider to reimburse a plaintiff if the plaintiff's coverage determination is changed. Plaintiffs further note that the statute does not require that a "covered services" determination be made at point of sale. Plaintiffs argue that Rite Aid's interpretation of § 4121.44(K) would lead to undesirable results in that providers would be free to "balance bill" injured workers where the worker is adjudicating a disallowed workers' compensation claim. Since the Workers' Compensation Act expressly
declares that the worker compensation laws be must liberally construed in favor of employees and the dependents of deceased employees any ambiguities in § 4121.44(K) should be resolved in favor of Plaintiffs. See § 4123.95. Finally, Plaintiffs argue that Rite Aid's interpretation of § 4121.44(K) would render § 4121.44(K) unconstitutional because injured workers would be treated differently based on when BWC determines coverage for a particular medical service. There is no rational basis to treat the same covered services differently solely based on when the determination of that coverage occurred.
On its face § 4121.44(K) applies only to "covered services". At the time the Plaintiffs purchased their prescriptions from Rite Aid, coverage had been denied by the PBM, thus § 4121.44(K) was inapplicable and Rite Aid did not violate the statute. From Rite Aid's point of view the transactions are finished and need not be re-visited. After careful review of the statute, Plaintiffs point to no law or history which overrides the clear fact that § 4121.44(K) contains no requirement for providers to go back and re-open transactions that were completed for retail customers who were not subject to § 4121.44(K) at the time of their transactions. Plaintiffs' position would require this Court to add requirements and terms to § 4121.44(K) that are beyond the purview of a court. Moreover, this interpretation of § 4121.44(K) does not violate the Equal Protection Clause of the United States Constitution as § 4121.44(K) merely requires all injured workers to get approval for coverage before they purchase prescription drugs as covered claimants.
Moreover, even if Defendant was somehow in violation of § 4121.44(K), Defendant argues that Plaintiffs' claim under § 4121.44(K) must be dismissed because § 4121.44 does not expressly authorize a private right of action. Nor has any court recognized an implied private cause of action for § 4121.44. Plaintiffs contend that this Court should find an implied private cause of action under § 4121.44(K). To determine whether a private cause of action arises by implication under a statute, a court should consider the following: (1) whether the plaintiff is a member of the class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent either to create or deny such a remedy; and (3) whether inferring a remedy is consistent with the underlying purposes of the legislative scheme. Strack v. Westfield Companies, 33 Ohio App.3d 336, 337 (Ohio App. 1986). While the Plaintiffs, as workers compensation claimants, are members of a class for whose especial benefit the statute was enacted, there is no indication of an any legislative intent to create a private remedy under § 4121.44(K), however there is indication of intent to deny such a remedy in that the statute provides for state governmental enforcement. See § 4121.444 generally providing penalties for obtaining or attempting to obtain payment by deception; termination of agreement or reimbursement; and § 4121.444(D) empowering the attorney general to bring an action on behalf of the state. See also, McClain v. Northwest Cmty. Corr. Ctr., 440 F.3d 320, 328 (6th Cir. 2006) ("[t]he Supreme Court of Ohio has stated that it will not infer the existence of a private cause of action unless the Ohio General Assembly manifests a `clear implication' for private causes of action.") There is no indication that a private remedy is necessary to enforce the statute. Based upon this analysis, this Court will not be the first to imply a private right of action under § 4121.44(K). Accordingly, Plaintiffs' claim under § 4121.44(K) is dismissed.
2. Breach of Contract
Plaintiffs allege that Rite Aid and BWC/PBM entered into a contract whereby Rite Aid agreed to provide prescription drugs to BWC claimants, including Plaintiffs, and BWC/PBM agreed to pay Rite Aid a pre-negotiated rate for all covered prescription drugs. (Complaint, ¶ 71) Plaintiffs allege that Rite Aid breached the contract by "balance billing" claimants for amounts in excess of the contractually agreed amount owed for prescription drugs. (Id. at ¶ 73) Plaintiffs further allege that they are intended third party beneficiaries of the contract and are entitled to bring suit for its violation. (Id. at ¶ 72).
Defendant asserts that Plaintiffs are not third party beneficiaries under the contract, however, even if they were, there is no provision in the applicable contract, called the Member Pharmacy Agreement, that requires Rite Aid to reimburse workers who are initially denied coverage by the PBM. Defendant has attached a copy of the Member Pharmacy Agreement at issue to its motion to dismiss. As the Member Pharmacy Agreement is the contract at issue in Plaintiffs' breach of contract claim in Count Two of the Complaint, the Court may properly consider all the terms of the contract even though Plaintiffs did not attach it to the Complaint. See Weiner v. Klais Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997); Wolper v. Hotel Europe, 552 F.Supp.2d 687, 690-91 (N.D. Ohio 2008).
Rite Aid states that under the Member Pharmacy Agreement, Rite Aid is only responsible for providing an "eligible Injured Worker those Covered Services in accordance with the benefit plan descriptions provided by BWC to ACS. . . ." (ECF #11, Ex. 1 at 002) When the Plaintiffs purchased the prescriptions at issue, they were not eligible under the Agreement as the PBM had denied coverage. Exhibit B of the Member Pharmacy Agreement states: "Denied claims: For claims in a denied status . . . ACS notifies the pharmacist prior to the dispensing of the prescribed medication that the payment for the drug will not be made by BWC . . ." (ECF #11, Ex.1 at 011) Thus, as in this case, Rite Aid was notified that the Plaintiffs' claims were denied and that BWC would not pay for the prescription drugs. Rite Aid therefore charged the Plaintiffs the retail price.
Exhibit B of the Member Pharmacy Agreement then addresses reimbursement liability:
All bills for outpatient medications are paid per BWC schedule (ORC 4123-6-21), so in cases where the injured worker has paid for a drug at a pharmacy and then seeks reimbursement from BWC/ACS,
the injured worker is liable for any difference in the amount paid by the injured worker and the amount reimbursed.
(ECF #11, Ex. 1 at 021) (emphasis added). Thus, it appears from the face of the Member Pharmacy Agreement that Rite Aid did not breach the Agreement by failing to reimburse Plaintiffs and Plaintiffs breach of contract claim fails. In their Opposition to Defendant's Motion to Dismiss, Plaintiffs state that "Plaintiffs' claim for breach of contract can be dismissed." Accordingly, Plaintiffs' Breach of Contract Claim (Count 2) is dismissed.
3. Plaintiffs' Unjust Enrichment and Money Had and Received Claims
Defendant moves to dismiss Plaintiffs' unjust enrichment and money had and received claims on the ground that such claims cannot exist where there is a valid and enforceable express contract. See Kincaid v. Erie Ins. Co., 183 Ohio App.3d 748 (Ohio App. 2009) (Under Ohio law, "unjust enrichment cannot exist where there is a valid and enforceable written contract"); City of Elyria, Ohio v. York Int'l Corp., No. 1-03-cv-2079, 2005 WL 1353871, at *4 (N.D. Ohio June 7, 2005) ("As a rule, an unjust enrichment claim is not recognized if plaintiffs also seek recovery under a valid contract"); Quadtek, Inc. v. Foister, No. 04-09-112, 2005 WL 1939769 at *4 (Ohio App. Aug. 15, 2005) ("[A] party to an express agreement may not bring a claim for unjust enrichment . . . when the express agreement contains a provision governing the allegedly inequitable conduct of the other party.") See also, U.S.A. Parking System, Inc. v. Piney Bowes Global Fin. Services, No. 1-09-cv-2274, 2010 WL 918093, at *4 (N.D. Ohio March 10, 2010) ("An action for money had and received is a claim in quasi-contract which, in turn, is based upon the equitable doctrine of unjust enrichment. . . . It is well settled that a party may not recover in quasi-contract in the face of an express contract governing the same subject matter.")
While the Member Pharmacy Agreement covers reimbursement, the Plaintiffs are not a party, or at least in Defendant's view, third party beneficiaries to that contract, thus that express contract would not act to bar Plaintiffs' equitable claims. However, Plaintiffs in this case purchased prescription drugs from Rite Aid while they were not eligible injured workers under the Agreement. At that point, Rite Aid was not required by the Agreement or § 4121.44(K) to sell the prescription drugs to Plaintiffs at the amounts listed in the BWC fee schedule. Rather, Rite Aid and Plaintiffs were free to enter into separate, express contracts between Rite Aid and Plaintiffs as cash customers for the sale of the medications at the retail price and that is what they did. Thus, Plaintiffs' unjust enrichment and money had and received claims are dismissed because express contracts govern the subject matter.
4. Consumer Sales Practices Act Claim
In Count 4 of the Complaint Plaintiffs purport to assert a claim for violation of Ohio's Consumer Sales Practices Act, Ohio Rev. Code § 1345.014, et seq. Plaintiffs assert that Defendant has engaged in unfair and deceptive acts in connection with the sale of prescription drugs to workers' compensation claimants by improperly collecting and retaining monies paid for the prescription drugs that they are not contractually or legally entitled to retain and for balance billing. (Complaint, ¶ 86) Further, Plaintiffs allege that Defendant engaged in unconscionable consumer sales acts and practices by improperly charging and retaining monies for prescription drugs in excess of what Defendants are contractually and/or legally entitled to charge. (Id. at ¶ 87).
Defendants argue that Plaintiffs' claim that Rite Aid violated the Ohio Consumer Sales Practices Act must be dismissed because the complaint fails to allege any facts demonstrating that Rite Aid engaged in a deceptive act or misrepresentation, knowingly or otherwise or committed an unconscionable act. See § 1345.02, 1345.03. Rite Aid notes that since Plaintiffs do not allege that Rite Aid made a misrepresentation to Plaintiffs or that they were deceived by Rite Aid or by any act of Rite Aid they do not allege a claim under § 1345.02.
Plaintiffs' opposition to Defendant's Motion to Dismiss does not address Defendant's contention that this claim should be dismissed. Rite Aid thus contends that Plaintiffs concede that Rite Aid neither engaged in a deceptive act or misrepresentation nor committed an unconscionable act. In any event, the Court finds that Plaintiffs failed to state a claim that Defendant violated the Ohio Consumer Sales Practices Act. Accordingly, Count 4 of the Complaint is dismissed.
5. Claim for Declaratory and Injunctive Relief
Finally, Plaintiffs seek declaratory and injunctive relief finding that Defendant's alleged balance billing is unlawful and enjoining Defendant from continuing to engage in such billing. However, as the Court has determined that Rite Aid's billing of Plaintiffs with respect to the prescription drugs at issue did not violate the Member Pharmacy Agreement or Ohio law and has dismissed those claims, Plaintiffs' claims for declaratory and injunctive relief based upon the same conduct must be dismissed.
CONCLUSION
For the reasons set forth above, Defendant's Motion to Dismiss the Bilateral Class Action Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF #11) is GRANTED.
IT IS SO ORDERED.
done in response to a given warning.
Plaintiff, in effect, is asking the court to find that a presumption exists that, as a matter of law, Stringer would have heeded a warning, not practiced on July 31, and thus not suffered a heat stroke. Some jurisdictions do recognize a rebuttable presumption that a product user will read and heed a warning, and when no warning is given the practical effect of this presumption is to relieve a plaintiff of the burden of proof on the issue of causation. See Boerner v. Brown Williamson Tobacco Corp., 260 F.3d 837, 842-45 (8th Cir. 2001) (collecting cases). Minnesota, however, has not adopted this presumption, see Tuttle, 377 F.3d at 925; Kallio v. Ford Motor Co., 407 N.W.2d 92, 99-100 (Minn. 1987), and there is no reason to believe that Minnesota courts would adopt such a broad presumption in this case when the evidence presented indicates that Stringer would not have heeded any warning. The court thus declines to apply this presumption in this case. Plaintiff's arguments are entirely speculative, and there is no affirmative evidence that Stringer himself would have refrained from practicing on July 31 or otherwise altered his conduct and avoided the injury in response to a warning issued by Defendants. There is thus no genuine issue of material fact as to whether a warning would have changed Stringer's behavior.
b. Whether a Warning Would Have Changed the Vikings' Trainers' and Coaches' Conduct
As to Defendants' second argument, however, the court agrees with Plaintiff that there is a genuine issue of material fact that precludes summary judgment. Defendants argue that the Vikings trainers and coaches already understood the risks surrounding heat-related illnesses, and that warnings on their products would not have added to the trainers' or coaches' knowledge or caused them to make different decisions about how the July 31 practice would have been conducted or whether Stringer would have been allowed to participate in it. (Def. Mot. Summ. J. pp. 33-34, doc. # 53.)
Plaintiff responds to Defendants' arguments by introducing the testimony and opinions of Dr. Michael Wogalter, a professor of psychology who specializes in warnings. Dr. Wogalter opines that an effective warning would be targeted at, among other groups, the Vikings trainers because they supervise and monitor the players (Dep. of Michael Wogalter p. 84, doc. # 75), and further states that an effective warning would communicate, among other things, "predictive information such as symptoms and signs, whether a person has had heat stroke or heat exhaustion in the past or the past day . . . [because] having heat exhaustion the day prior is predictive of future heat stroke" (id. at p. 136). Medical evidence in the record does tend to establish that suffering an episode of heat exhaustion may predispose an individual to suffer another more serious heat related illness soon afterwards (see ex. 2C to Dep. of E.R. Eichner, doc. # 82), and Charles Barta, the Vikings head trainer who is primarily responsible for determining when players are able to practice or return to practice after injury or illness, testified that he did not know this fact (Barta Dep. pp. 260, 330, doc. # 55). Barta testified that he never considered holding Stringer out of the July 31 practice or otherwise modifying his practice routine, and never warned Stringer about the increased risks associated with practicing a day after suffering a heat related illness. (Id. at pp. 256, 287.) Given that Dr. Wogalter's proposed warning would have alerted the Vikings trainers to this risk, it is reasonable to infer that the trainers would have taken steps to address it by monitoring Stringer more closely, by warning Stringer of the risk, by recommending modifying Stringer's practice routine,
or by recommending that Stringer be held out of practice altogether. Given that the Vikings coaches nearly always followed Barta's recommendations about player health and when to allow players to practice (id. at p. 327), this would support a reasonable inference that alerting the trainers to the risk would have prevented or at least reduced the risk of Stringer suffering a heat stroke. A reasonable jury could thus find that the lack of an appropriate warning was the proximate cause of Stringer's injury.
Defendants have asked the court not to consider Dr. Wogalter's opinions, but the court is not persuaded by Defendants' arguments. Defendants simply argue that Dr. Wogalter's failure to draft a specific, word for word proposed warning and failure to test the efficacy of that warning means that his opinions should be excluded, and cite to Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076 (8th Cir. 1999) and Bourelle v. Crown Equip. Corp., 220 F.3d 532 (7th Cir. 2000).
In Jaurequi the plaintiff was injured by a mobile combine and sued the manufacturer for, among other causes of action, failure to warn. The plaintiff attempted to introduce expert testimony that the existing warnings on the combine were inadequate, but the district court excluded that testimony and granted summary judgment to the manufacturer. 173 F.3d at 1080-81. On appeal, the Eighth Circuit affirmed the exclusion of the expert testimony because both of the plaintiff's proffered experts admitted that they did not know what the original warnings had said, could not identify other manufacturers who used different warnings, and had not "created or even designed a warning device which would have been more appropriate, much less tested its effectiveness[,]" which made the reliability of their opinions questionable. Id. at 1084. More importantly, however, the Eighth Circuit held that the proffered expert testimony was irrelevant because the previous warnings had twice been painted over, and there was no basis for concluding that different warnings "would have escaped either painter's brush," which cut off all proximate causation. The Eighth Circuit held that "[t]hese breaks in the causal chain render any insufficiencies in the painted-over . . . warning signs irrelevant" and affirmed the exclusion of the expert testimony. Id. at 1085.
A combine is a piece of farm machinery that harvests and processes various types of crops. Jaurequi, 173 F.3d at 1078.
Bourelle involved two plaintiffs injured in a warehouse when they were operating a stockpicker. The plaintiffs brought a products liability failure to warn claim and attempted to introduce expert testimony opining that the existing warnings on the stockpicker were inadequate, but the district court excluded the testimony and granted summary judgment to the manufacturer. 220 F.3d at 533-34. The Seventh Circuit affirmed because the proposed expert could not even give a general idea of the language his alternate warning would incorporate, and his failure to draft an alternate warning made his opinion unreliable. Id. at 539.
Questions as to the admissibility of expert testimony are governed by Federal Rule of Evidence 702 and the Supreme Court's interpretation of that rule in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and later cases. Rule 702 encourages courts to admit expert testimony by relaxing the traditional barriers to its admissibility, although the trial judge must still perform his or her "gatekeeper" function and screen proffered expert testimony. See id. at 588; see also Pride v. Bic Corp., 218 F.3d 566, 577 (6th Cir. 2000). The Daubert Court, which addressed scientific expert testimony, set forth four factors relevant to the admissibility determination: whether the theory or technique can or has been tested, whether the theory or technique has been published and subjected to peer review, whether the technique has a high known or potential rate of error, and whether the theory or technique is generally accepted in the relevant community.Daubert, 509 U.S. at 593-94.
Federal Rule of Evidence 702 reads: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."
The Supreme Court, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), has held that the Daubert gatekeeping function applies to all expert testimony, not just scientific testimony,see id. at 147, but stressed that the inquiry is a flexible one. While the enumerated Daubert factors will often be helpful in resolving the key question of the reliability of the expert's testimony, id. at 152, they are not a "definitive checklist or test" and "the gatekeeping inquiry must be tied to the facts of a particular case." Id. at 150 (internal citations and quotations omitted). Not every factor will be applicable in every case, and "whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. at 153. The court's central task is to make sure that the proffered expert testimony is reliable and relevant.
With this in mind, the court declines to exclude Dr. Wogalter's testimony. Defendants focus on the first Daubert factor — testing — but in this case that factor is not a reasonable measure of reliability. How, exactly, would Dr. Wogalter go about testing the efficacy of an alternative warning? Defendants offer no suggestions, and it is difficult for the court to conceive of a proper testing method. Nor is Defendants' complaint about Dr. Wogalter's failure to draft a word-for-word proposed warning persuasive: unlike the expert in Bourelle who could not even give the gist of a proposed warning, Dr. Wogalter has been reasonably specific in articulating what language and information would be in his proposed warning. (Wogalter Dep. pp. 135-36, doc. # 75 (warning should include 1) a sign word to attract attention; 2) either "heat exhaustion," "heat stroke," or "emergency medical condition" to describe the hazard; 3) consequences such as "serious injury," "death," or "brain injury;" and 4) instructions on how to avoid the hazard, such as removing the helmet when not in use and predictive information such as symptoms, signs, and the increased risk of suffering a heat stroke after suffering heat exhaustion or heat stroke within the past day or two).) Furthermore, unlike the proposed expert testimony inJaurequi Dr. Wogalter's testimony is relevant to the issue of causation, as in this case there is no intervening act cutting off proximate causation. Defendants' arguments and reliance on Jaurequi and Bourelle are not well taken.
Dr. Wogalter testified that he reviewed and relied upon various depositions and numerous scholarly articles when forming his opinion in this case (id. at p. 10; Wogalter Expert Report pp. 1-2, doc. # 98), a technique for forming an expert opinion that is generally accepted. He also stated that he relied on his background, training, and experience, which includes extensive education in psychology, work experience developing warnings, numerous published articles, and giving prior expert testimony in state and federal courts. Forming an opinion and proposed warning based on such experience and training would be recognized as acceptable in the psychological community. The court concludes that the methods Dr. Wogalter employed to reach his opinion in this case are sufficiently reliable to permit admission of his testimony. Defendants' arguments about the lack of testing and specificity in language would more appropriately be raised on cross-examination. See Finke v. Hunter's View. Ltd., 596 F.Supp.2d 1254, 1268-69 (D. Minn. 2009) (where defendants objected to plaintiff's proposed expert on the grounds that she failed to prepare alternative warnings, court admitted testimony and stated that "[a]ny weaknesses in her opinions based on her . . . lack of detail in describing a more adequate warning can be addressed during cross-examination").
3. Conclusion
Defendants had a duty to warn of the specific risk of developing heat stroke because it was not an obvious risk, and because the connection between Stringer's heat stroke and Defendants' failure to warn was not remote enough to preclude liability as a matter of law. Furthermore, genuine issues of material fact exist as to Defendants' sophisticated intermediary defense, and as to the issue of causation, i.e., whether a warning could have prompted the Vikings trainers to have changed their behavior and prevented Stringer's injury. Summary judgment is not appropriate on this claim.
B. Design Defect
To establish a design defect products liability claim under Minnesota law, a plaintiff must show "(1) that the defendant's product was in a defective condition unreasonably dangerous for its intended use, (2) that the defect existed when the product left the defendant's control; and (3) that the defect was the proximate cause of the injury sustained." Bilotta v. Kelley Co, Inc., 346 N.W.2d 616, 623 n. 3 (Minn. 1984). Although the parties dispute the first and third elements, the court finds that it need only consider the first.
Minnesota courts have adopted a "reasonable care balancing test" that governs the first element. See Holm v. Sponco, 324 N.W.2d 207, 212 (Minn. 1982). Under this test,
a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.
What constitutes "reasonable care" will, of course, vary with the surrounding
circumstances and will involve "a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm."
Id. (
quoting Micallef v. Miehle Co.,
39 N.Y.2d 376, 385-86 (1976)). It is not enough to merely show that the product is capable of causing an injury because "the test is not whether a product is capable of producing injury, but whether a reasonable manufacturer would have designed the product in a different way to avoid a foreseeable risk of injury."
Holowaty v. McDonald's Corp.,
10 F.Supp.2d 1078, 1083 n. 1 (D. Minn. 1998). This is an objective standard that "focuses on the conduct of the manufacturer in evaluating whether its choice of design struck an acceptable balance" between factors such as the likelihood and gravity of harm and the precautions necessary to prevent that harm.
Bilotta,
346 N.W.2d at 621-22.
Defendants argue that Plaintiff's design defect claim fails because she has not introduced expert testimony (or any other testimony) establishing that a feasible, alternative safer design existed for Defendants' helmet and shoulder pads. Defendants argue that such testimony is essential to satisfying the first element of Plaintiff's claim, and that without it Plaintiff's claim fails as a matter of law. (Def. Mot. Summ. J. p. 29, doc. # 53.) Plaintiff argues that such evidence is not required under Minnesota law to establish the first element of her design defect claim, and urges the court to reject Defendants' argument and allow the jury "to determine, using the balancing test quoted above, whether these products were unreasonably dangerous for their intended or reasonably anticipated uses[.]" (Pl. Resp. p. 49, doc. # 80.)
In Kallio v. Ford Motor Co., 407 N.W.2d 92 (Minn. 1987), the Minnesota Supreme Court addressed the question of whether proof of an alternative, feasible safer design is required in design defect cases. The plaintiff was injured when his truck, which he had previously shifted into park, began rolling backwards and ran over his legs and one arm while he was attempting to cover the truck bed. The plaintiff argued that the truck's automatic transmission shifting mechanism was defectively designed because it had a propensity to fail to fully engage the park position, resulting in an "illusory park" where it appeared to the driver that the truck was in park when in reality the truck was not. The defendant requested a jury instruction stating that the plaintiff was required to introduce evidence of an alternative, feasible safer design for the shifting mechanism to prevail on his design defect claim, and also moved for a directed verdict on the ground that the plaintiff had not introduced such evidence. However, the trial court denied the motion for a directed verdict and declined to give the instruction, and the jury subsequently found in favor of the plaintiff. Id. at 94.
After the court of appeals rejected the defendant's arguments the Minnesota Supreme Court affirmed the trial court and upheld the jury's verdict, but with important qualifications. The Minnesota Supreme Court noted its adoption of the reasonable care balancing test in Holm but then reiterated that, unlike in other jurisdictions, in Minnesota one aspect of that test is the plaintiff's burden to establish unreasonable dangerousness, not just that the product was capable of producing injury. Id. at 95-96. The Kallio court then stated:
Obviously, a factor bearing upon the [unreasonable dangerousness] requirement will be the existence or nonexistence of a feasible alternative design. . . . [P]laintiffs asserting a strict liability tort claim based upon alleged
defective design of a product ultimately have the burden to prove the elements of the asserted claim. Generally in a case based upon alleged improper design, one of those elements requires production of evidence that the design employed was unreasonably dangerous. To establish a prima facie case that it was unreasonably dangerous normally requires production of evidence of the existence of a feasible, alternative safer design.
Id. at 96. Although the Minnesota Supreme Court stated that proof of an alternative, feasible safer design was not strictly an element of a design defect claim and was not necessarily required in all cases,
id. at 96-97, it also pointed out that "[e]xamination of our cases in which plaintiffs have asserted liability of a manufacturer based upon alleged defective design demonstrates that, as a practical matter, successful plaintiffs, almost without fail, introduce evidence of an alternative safer
design[,]"
id. at 96 n. 6. Only in the rare case in which a product is judged so dangerous that it should be removed from the market altogether, rather than redesigned, would a plaintiff not need to establish the existence of an alternative design.
Id. at 97.
Importantly, the Minnesota Supreme Court pointed out that the plaintiff had in fact presented some evidence, "albeit weak," of the existence of an alternative, feasible safer design, which the defendant countered with evidence that no safer practical design existed. The Kallio court agreed with the trial court that the defendant's proposed instruction should not have been given and that the motion for a directed verdict was properly denied, but relied on the fact that the plaintiff in fact had offered some evidence of an alternative, feasible safer design, deferred to the jury's weighing of the plaintiff's and defendant's competing evidence and resolution of this disputed factual issue, and affirmed the trial court. Id.
Unreasonable dangerousness, not the existence of an alternative, feasible safer design, is the required element of a design defect claim, but Kallio makes it clear that presenting such evidence is effectively the only successful way to establish that a product is unreasonably dangerous. Plaintiff has presented no evidence that an alternative feasible design exists that would make Defendants' helmets and shoulder pads safer with respect to heat-related illnesses. Plaintiff offers no evidence whatsoever, not even the "weak evidence" presented in Kallio, related to an alternative design for Defendants' shoulder pads. While there is some evidence in the record that other helmets incorporate air vents in the crown of the helmet to increase ventilation and, in theory, promote cooling (see Dep. of Thad Id. p. 74-5, 90-1, doc. # 87), Defendants have presented evidence that helmets with air vents are no cooler than helmets without such vents (Simbex Study p. 18-19, Dep. of Pope Moseley ex. 22, doc. # 94-3). Plaintiff has not rebutted this evidence, and thus, unlikeKallio, there is no evidence that an alternate, feasible design exists that would make Defendants' helmets safer.
There is no evidence or argument that Defendants' helmets and shoulder pads are so dangerous that they should be removed from the market altogether instead of being redesigned, and this is not one of the "rare cases" in which the Kallio court recognized that unreasonable dangerousness could be established without evidence of an alternative, safer design.
Plaintiff cites this study for its conclusion that the helmets' insulation inhibits natural cooling and that alternative methods of cooling should be considered (Pl. Resp. p. 20 n. 6, doc. # 80), but merely showing that the helmets are potentially dangerous because they inhibit cooling is not sufficient. Plaintiff must show that the helmets pose an unreasonable danger because they could be designed differently to reduce or eliminate that danger. Holowaty, 10 F.Supp.2d at 1083 n. 1.
Plaintiff's argument that the jury should be allowed to resolve the issue of unreasonable dangerousness by using the reasonable care balancing test articulated in Holm only helps to illustrate why evidence of an alternative, feasible safer design is so important to a plaintiff's claim in design defect cases. The reasonable care balancing test tasks the jury with "balancing the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm." Holm, 324 N.W.2d at 212. While Plaintiff has produced some evidence pertaining to the first part of the balancing test, there is nothing for the jury to weigh that evidence against because there is no evidence as to what type and degree of burden developing effective precautions would impose on Defendants. Evidence of an existing alternative, feasible safer design would allow a jury to weigh the burden of adopting that alternative design against the likelihood and gravity of harm to determine if the manufacturer's design decision to not adopt the alternative design was reasonable. Without evidence of how Defendants could have designed the helmet and shoulder pads differently, how can the jury determine whether Defendants' design decisions were reasonable, i.e. whether Defendants should have designed the products differently?
Plaintiff would have the jury presume that the likelihood and gravity of harm posed by Defendants' helmet and shoulder pads would automatically outweigh any burden that might be imposed on Defendants by adopting different designs as precautions to avoid that harm. Plaintiff, however, cannot avoid her burden of proof in this way. Plaintiff has the burden of proof to present evidence sufficient to establish that the dangers posed by Defendants' products outweigh the burden of taking precautions against such dangers. This would establish that a reasonable manufacturer would have designed the products differently and that Defendants' products were unreasonably dangerous, which is the first element of Plaintiff's claim. In this case there is no evidence tending to show that Plaintiff could satisfy that burden at trial. Plaintiff cannot establish a genuine issue of material fact as to one of the required elements of her design defect claim, and summary judgment is appropriate for Defendants on Plaintiff's design defect claim.
C. Implied Warranty
Plaintiff alleges that Defendants breached the implied warranty of merchantability because its helmet and shoulder pads were not fit for the ordinary purposes for which they were intended (Compl. ¶ 63, doc. # 1), but the court agrees with Defendants that "[s]trict products liability has effectively preempted implied warranty claims where personal injury is involved."Masepohl v. American Tobacco Co. Inc., 974 F.Supp. 1245, 1253 (D. Minn. 1997) (quoting Nimeth v. Prest Equip. Co., No. C1-93-685, 1993 WL 328767 (Minn. Ct. App. Aug. 31, 1993)). The one case Plaintiff cites in response to Defendants' argument, Bach v. Gehl, No. A05-1843, 2006 WL 2865166 (Minn. Ct. App. Oct. 10, 2006), deals entirely with evidentiary objections and does not address the issue, and the court does not find it persuasive. Plaintiff's implied warranty claim is preempted by her products liability claims, and summary judgment for Defendants is appropriate on this claim.
D. Express Warranty
Plaintiff's Complaint alleges that Defendants expressly warranted that the helmet and shoulder pads were safe for their intended use. (Compl. ¶ 60, doc. # 1.) Defendants argue that creation of an express warranty requires an express affirmation of fact that becomes part of the bargain, and that there is no evidence that Defendants ever made an express affirmation of fact to Stringer or the Vikings about the safety of the helmet and shoulder pads. (Def. Mot. Summ. J. p. 40-41, doc. # 53.) Plaintiff has not responded to Defendants' arguments, and although the court cannot grant summary judgment simply because the opposing party has not responded, see Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991), in this case the court finds that Defendants have satisfied their burden to show the absence of a genuine issue of material fact. Summary judgment is therefore appropriate for Defendants on Plaintiff's express warranty claim.
IV. Conclusion
For the reasons stated above, the court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's design defect, implied warranty, and express warranty claims, but DENIES the Motion as to Plaintiff's failure to warn claim.
IT IS SO ORDERED.
MEMORANDUM OPINION AND ORDER
On July 10, 2009, this court granted in part and denied in part Riddell's motion for summary judgment. It granted summary judgment in favor of Riddell on Plaintiff's claims of design defect and breach of warranty, leaving only Plaintiff's failure-to-warn claim for trial. This matter is currently before the court on Riddell's motion for partial reconsideration (Doc. 135) and Plaintiff's subsequent motion for leave to respond to Riddell's reply memorandum (Doc. 143). The relevant facts are set forth in this court's July 10, 2009 Memorandum Opinion and Order (Doc. 100) and will not be repeated here.
I. Plaintiff's Motion for Leave to Respond
Plaintiff Kelci Stringer seeks leave to respond to Riddell's reply brief. She maintains that Riddell argued for the first time in its reply brief that because the Vikings' trainers and coaches were not physically injured, it is irrelevant whether an appropriate warning would have changed their behavior. But as Riddell accurately point out, this argument was not raised for the first time in its reply brief. In its motion for partial reconsideration, Riddell argued that the court erred in assuming that a manufacturer's duty to warn extends to non-injured non-users of its products. Moreover, Plaintiff has already responded to this argument. The court therefore DENIES Plaintiff's motion for leave to respond to Riddell's reply brief.
II. Riddell's Motion for Partial Reconsideration
A. Standard of Review
"District courts have authority both under common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment." Rodriguez v. Tennessee Laborers Health Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). Federal Rule of Civil Procedure 54(b) states, in pertinent part, "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b).
The court has "significant discretion" in considering a motion to reconsider an interlocutory order. See Rodriguez, 89 F. App'x at 959 n. 7. However, motions for reconsideration are not intended to be utilized to re-litigate arguments previously rejected by the court. See Reed v. Islamic Republic of Iran, 242 F.R.D. 125, 126 (D.D.C. 2007). "Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice." Rodriguez, 89 F. App'x at 959 (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998)).
B. Discussion
Riddell maintains that this court committed clear error in holding that Riddell, as a matter of law, had a duty to warn of the risk of heat exhaustion and heat stroke, and in extending the duty to warn to non-injured, non-users of the products, i.e., the Vikings' trainers and coaches. "Clear error" is defined as a "definite and firm conviction that a mistake has been committed."United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Because the court finds nothing in its previous opinion that rises to that level, the court denies Riddell's motion for partial reconsideration.
1. Duty to Warn of Risk of Heat Exhaustion and Heat Stroke
a. The Relevant Risk
In its July 10, 2009 Memorandum Opinion and Order, the court held that, in determining whether Riddell had a duty to warn of the risks associated with using its equipment, the relevant risk was not the general risk of simply becoming hotter while wearing its equipment, but the more specific risk of developing heat exhaustion and heat stroke when wearing this equipment during extremely hot and humid conditions and while engaged in strenuous exercise. (Mem. Op. Order at 11-12). The court concluded that because the danger of developing heat exhaustion and heat stroke under these circumstances was not obvious, and because it was reasonably foreseeable that a football player could suffer heat exhaustion and heat stroke while wearing the helmet and shoulder pads during extremely hot and humid conditions and while engaged in strenuous exercise, Riddell had a duty to warn as a matter of law. See Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986) (holding that the question of whether a manufacturer has a duty to warn is a question of law to be decided by the court).
In its motion for reconsideration, Riddell rehashes the same arguments the court previously rejected — that the only relevant risk is merely the risk of the football player getting hotter while wearing Riddell's equipment, and that because this risk is obvious, Riddell had no duty to warn. Riddell again relies onHolowaty v. McDonald's Corporation, 10 F. Supp.2d 1078 (D. Minn. 1998), in which the plaintiff argued that McDonald's had a duty to warn of the dangers of spilling hot coffee because, although the risk of suffering minor burns was obvious, the risk of more serious burns was not. The district court rejected this argument, holding that "[a]n alleged difference in the anticipated degree of danger does not make the risk associated with the use of the product any less obvious." Id. at 1085. Riddell maintains that, like Holowaty, this case involves nothing more than a "difference in the anticipated degree of danger," and that the risk of developing heat exhaustion and heat stroke is simply an extension of the obvious risk of getting hotter.
The court rejects this reasoning for the same reasons previously discussed. As was the case in Independent School District No. 14 v. AMPRO Corporation, 361 N.W.2d 138, 143 (Minn. Ct. App. 1985), the risk of developing heat exhaustion and heat stroke is "a different, more serious, and more unexpected danger" than merely the normal risk of getting hotter while wearing the equipment. A mere increase in body temperature while wearing this equipment in normal weather conditions, typically poses no significant risk of permanent physical damage because with rest and hydration, the body's temperature returns to normal. In contrast, wearing this equipment during extremely hot and humid conditions and while engaged in strenuous exercise poses a significant risk of heat exhaustion and heat stroke, serious illnesses that can cause major organ failure and even death, as it did in Stringer's case. This risk is clearly "different, more serious, and more unexpected" than the mere risk of getting hotter under normal weather conditions.
As the court previously explained, this case is more akin toGamradt v. Federal Laboratories, Inc., 380 F.3d 416 (8th Cir. 2004) (applying Minnesota law), in which the court held that even though it may have been obvious that detonation of a black smoke grenade would cause minor breathing discomfort, it was not obvious that a person exposed to the smoke in an enclosed space could lose 60% of his aerobic lung capacity. The court therefore concluded that knowledge of the mere danger associated with minor smoke inhalation did not relieve the manufacturer of the duty to warn about foreseeable dangers associated with the use of the grenade indoors. Id. at 420-21. Although Holowaty is legitimately argumentative, the facts of that case — including the product in question, the circumstances under which it was used, and the resulting damage — are radically different from those involved in the present case. Riddell, in short, has failed to demonstrate that the court committed clear error in relying on Independent School District No. 14 and Gamradt in concluding that the relevant risk is the specific risk of developing heat exhaustion and heat stroke.
Riddell also argues that by defining the relevant risk as the risk of developing heat exhaustion and heat stroke, this court, in essence, held "that Minnesota law . . . requires manufacturers to warn about all possible circumstances in which a common product may be used, and all conceivable consequences of that use." (Mot. for Reconsideration at 4) (emphasis added). This, of course, is not what the court held. As the court has explained, a duty to warn exists only if the injury was reasonably foreseeable. See Balder v. Haley, 399 N.W.2d 77, 81 (Minn. 1987) (citing Germann, 395 N.W.2d at 924)); Westerberg v. School Dist. No. 792, 148 N.W.2d 312, 317 (Minn. 1967) ("The duty to warn rests on foreseeability."). For the reasons previously stated, the court has concluded that, based on the evidence presented, the specific risk of developing heat exhaustion and heat stroke was reasonably foreseeable and was not obvious. Riddell therefore had a duty to warn of that risk.
b. Proper Analysis of the Duty Element
As noted above, the question of whether a manufacturer has a duty to warn is a question of law to be decided by the court.Germann, 395 N.W.2d at 924. This is what both parties previously argued and, accordingly, the court held that, because the risk of developing heat stroke was reasonably foreseeable and was not obvious, Riddell had a duty to warn as a matter of law. Riddell now argues, however, that the court committed clear error by making this determination prematurely. It maintains now that duty cannot be determined as a matter of law unless fault and causation have already been established or are undisputed. With respect to these issues, the court has found genuine issues of material fact which preclude granting Riddell's motion for summary judgment.
In support of its argument, Riddell cites to the following language from Germann:
[i]n determining whether the duty exists, the court goes to the event causing the damage and looks back to the alleged negligent act. If the connection is too remote to impose liability as a matter of public policy, the courts then hold there is no duty, and consequently no liability. On the other hand, if the consequence is direct and is the type of occurrence that was or should have been reasonably foreseeable, the courts then hold as a matter of law a duty exists.
Id. In the court's view, this language simply means that if the injury suffered by the plaintiff was reasonably foreseeable, then the manufacturer has a duty to warn as a matter of law. If the injury was too remote to be reasonably foreseeable, then, as a matter of public policy, no duty should be imposed on the manufacturer.
See Foss v. Kincade,
746 N.W.2d 912, 916 (Minn. Ct. App. 2008).
Riddell, however, interprets this language in Germann to mean that, under Minnesota law, the test for the existence of a duty is actually the same as a test for proximate cause. Riddell now argues, for the first time, that, in the present case, until "but for" and "direct" causation have been established, the court cannot determine whether Riddell had any duty to warn of the dangers resulting from the use of its products.
Riddell's interpretation of Germann cannot be reconciled with fundamental, long-established, uniformly recognized legal doctrine. The inquiries concerning duty and proximate cause are completely separate. With respect to a duty to warn, the relevant question is whether the injury suffered by the plaintiff was reasonably foreseeable. In contrast, with respect to causation, the relevant question is whether the failure to warn was a substantial factor in bringing about the plaintiff's injury.George v. Estate of Baker, 724 N.W.2d 1, 10-11 (Minn. 2006). As the Minnesota Supreme Court held in Germann, duty is a question of law to be determined by the court. In contrast, the issues of "adequacy of the warning, breach of duty and causation" are questions of fact that " remain for jury resolution." See 395 N.W.2d at 924-25 (emphasis added). Unless the court finds that a duty exists, there is no need for a jury to reach the question of causation.
To the extent that Riddell's citations to W. Prosser, Law of Torts (4th ed. 1971), § 42, are at odds with the established law as set forth in later cases by the Minnesota Supreme Court, e.g., in Germann, they are not persuasive authority.
In a similar vein, Riddell also argues that because the connection between the alleged failure to warn and Stringer's death is so remote, the court should find an absence of duty as a matter of law. Riddell maintains that Stringer's heat stroke was the result of a culmination of numerous factors, the vast majority of which were beyond Riddell's control. This argument clearly goes to the question of a causation, not duty. As the court previously held, the duty to warn stems from the conclusion that it was reasonably foreseeable that a football player wearing Riddell's equipment in extremely hot, humid weather could develop heat exhaustion and heat stroke. In contrast, whether the failure to warn played a substantial part in bringing about Korey Stringer's death or whether his
death was solely the result of other factors unrelated to Riddell's equipment, is a question of fact that must be determined by a jury. It is simply not relevant to the legal question of whether Riddell had a duty to warn.
The fact that the Vikings had a duty to maintain a safe workplace and may have been negligent in not taking more precautions to prevent Stringer's death does not absolve Riddell of its own duty to warn of the risk of heat exhaustion and heat stroke while using its equipment in extremely hot and humid conditions.
Because the court finds no clear error in its previous ruling, the court denies Riddell's motion for reconsideration with respect to the issue of duty.
2. Causation
In its July 10, 2009 Memorandum Opinion and Order, with respect to the issue of causation, the court held that there was no evidence that Korey Stringer would have changed his own conduct had Riddell included an appropriate warning. The court found, however, that genuine issues of material fact precluded summary judgment on the question of whether a warning would have altered the conduct of the Vikings' trainers and coaches and prevented Korey Stringer's death.
In its motion for reconsideration, Riddell argues that, under Minnesota law, the duty to warn extends only to "reasonably foreseeable users" of the product. See Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984); Whiteford v. Yamaha Motor Corp., USA, 582 N.W.2d 916, 919 (Minn. 1998). Riddell maintains that since Korey Stringer was the end user of the equipment, and since the court has already found that a warning would not have changed Stringer's behavior, Plaintiff is unable to establish the requisite causation as a matter of law. Riddell argues that, in finding genuine issues of material fact concerning whether a warning would have prompted the Vikings' trainers and coaches to change their behavior and would have prevented Stringer's death, the court implicitly and erroneously extended the duty to warn to non-injured non-users of the product.
The court rejects this line of reasoning. It is true that the duty to warn extends only to reasonably foreseeable users of the product. Moreover, an individual who suffers no injury has no standing to pursue a products liability claim. However, it does not follow that "non-injured non-users" can play no part in the causation analysis. If the manufacturer's failure to warn influenced the conduct of a third party, and that third party's acts or omissions were the proximate cause of the plaintiff's injury, then the manufacturer may be held liable. In fact, Riddell itself previously argued that causation could be established if a warning would have changed the behavior of either Korey Stringer or the Vikings' trainers and coaches. (Defs.' Mot. for Summ. J. 23-25; Defs.' Reply at 9).
Under Minnesota law, a third party's conduct is properly considered in determining causation where that party could have exercised control over the situation or acted to prevent injury. For example, in Erickson v. American Honda Motor Co., 455 N.W.2d 74 (Minn. Ct. App. 1990), the court upheld a jury verdict in favor of a 12-year old child who was injured when the ATV he was driving rolled over, causing severe head injuries. His aunt and uncle, who owned the vehicle, testified that if they had been warned of the dangers of operating the ATV, they would not have permitted their nephew to operate it. The court found sufficient evidence that the failure to warn was the proximate cause of the boy's injury. Id. at 78.
Likewise, where an employee is injured while using a product at work, Minnesota courts have held that a third party's conduct is both relevant and sufficient to establish causation on a failure-to-warn claim. In Germann v. F.L. Smithe Machine Co., 381 N.W.2d 503 (Minn. Ct. App. 1986),aff'd, 395 N.W.2d 922 (Minn. 1986), the plaintiff was an employee injured when his leg got
caught in the hydraulic press. The press was designed to have a guard bar which would prevent this injury, but the bar was not properly attached at the time of the accident. The court of appeals, in upholding the jury's verdict for the plaintiff on the failure to warn claim, explained that sufficient causation evidence was presented because the jury could have inferred either that the plaintiff would have heeded the warning and not operated the machine without the guard bar, or that maintenance personnel would have heeded the warning and re-installed or checked the safety bar on the machine so as to prevent injury.Id. at 509.
In Westbrock v. Marshalltown Manufacturing Co., 473 N.W.2d 352 (Minn. Ct. App. 1991), the employee plaintiff was injured while operating a mechanical punch press that he alleged lacked proper warnings. The trial court found that the plant manager would have ignored any additional manufacturer warnings, and concluded that plaintiff could not establish the requisite causation. The appellate court, however, noted that there was no evidence that the plaintiff would not have heeded additional warnings had they been provided. It therefore reversed the court's order rendering summary judgment in favor of the manufacturer on the failure-to-warn claim. Id. at 354, 359-60.
Implicit in these holdings is the fact that causation could be established by showing that an adequate warning would have altered the conduct of either the employee or the employer. These representative cases make it clear that causation may be established in a failure-to-warn case by showing that a non-injured, non-user would have altered his or her behavior in response to a warning, and that the change in behavior would have prevented the plaintiff's injury.
The two cases cited by Riddell in support of its argument that, under Minnesota law, product manufacturers have a duty to warn only foreseeable users of its products are not persuasive authority and are contrary to the Minnesota cases described above. In Hauenstein v. Loctite Corporation, 347 N.W.2d 272 (Minn. 1984), plaintiff was injured while using a bottle of liquid adhesive owned by a service garage where plaintiff was repairing his automobile. The product was available only through industrial product distributors and was not purchased or owned by the plaintiff. The bottle in question contained no warnings, but the product had a history of safe use. Over 200,000 bottles had been sold with no reports of user injuries. The issues in the case were submitted to the jury under two theories of liability, negligence and strict product liability. The jury returned a special verdict in which the manufacturer was found to be negligent but the product was found not to be in a defective condition. The jury also found that the defendant's negligence did not cause plaintiff's injury. The defendant argued that these findings were not inconsistent because the duty to warn under a strict product liability theory extends only to the ordinary user of the product while the duty to warn under a negligence theory extends to all foreseeable users. The Minnesota court rejected this distinction and held that the duty to warn extended to all foreseeable users, including the plaintiff in that case who was not the owner or even the ordinary commercial user of the product.
Likewise, in the instant case, Riddell notes that Korey Stringer was the first professional football player to die of heat stroke while using Riddell's equipment.
In Whiteford v. Yamaha Motor Corporation, 582 N.W.2d 916 (Minn. 1998), plaintiff, a five-year-old boy, was injured when his toboggan collided with a stationary Yamaha snowmobile parked at the bottom of the hill. The court found that the defendant manufacturer was not required to anticipate or protect against this type of risk.
Both cases are clearly distinguishable from the present case, and neither involved the question of whether causation can be established in a failure-to-warn case by showing that a non-injured, non-user would have conducted himself in such a manner so as to prevent injury if proper warnings had been given about the product. The Erickson, Germann and Westbrook cases cited above did involve this question and were decided in a manner contrary to Riddell's argument.
In this case, the Vikings purchased Riddell's helmets and shoulder pads for the players, and the coaches and trainers exercised control over how these products would be used. They dictated when the equipment would be worn and what the players were required to do during the practice sessions. The court has already determined that genuine issues of material fact exist concerning whether a warning would have altered the conduct of the Vikings' coaches and trainers. Based on the evidence presented, a reasonable jury could find that the lack of warning played a substantial part in bringing about Korey Stringer's death. It is irrelevant to the causation analysis that the coaches and trainers were non-injured, non-users.
With an adequate warning, the coaches and trainers may have taken more precautions to prevent heat-related illnesses. They may have allowed the players to practice without the equipment, may have conducted less strenuous drills, or shortened the length of the practice sessions. They may have been more attentive to the symptoms of heat stroke that Korey Stringer was experiencing, pulled him from practice, and sought emergency medical assistance in a more timely fashion.
For these reasons, the court finds no clear error in its previous ruling with respect to the issue of causation.
III. Conclusion
For the reasons set forth above, the court DENIES Plaintiff's motion for leave to respond to Riddell's reply brief (Doc. 143). Because Riddell has failed to show that the court committed clear error, Riddell's motion for partial reconsideration (Doc. 135) of the July 10, 2009 Memorandum Opinion and Order is also DENIED.
IT IS SO ORDERED.