Ayers By and Through Ayers v. Johnson & Johnson Baby Products Co., a Subsidiary of Johnson & Johnson Co.

• Decision Date: 07 November 1991
• Docket Number: No. 57667-0
• Citation: Ayers By and Through Ayers v. Johnson & Johnson Baby Products Co., a Subsidiary of Johnson & Johnson Co., 818 P.2d 1337, 117 Wn.2d 747 (Wash. 1991)
• Court: Washington Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 13,041 David W. AYERS, a minor, By and Through his Guardian ad Litem, Cheryl AYERS; and Cheryl Ayers and Tom Ayers, wife and husband, Respondents, v. JOHNSON & JOHNSON BABY PRODUCTS CO., a SUBSIDIARY OF JOHNSON & JOHNSON CO., a New Jersey corporation, Petitioner.

Page 747

117 Wn.2d 747

818 P.2d 1337, Prod.Liab.Rep. (CCH) P 13,041

David W. AYERS, a minor, By and Through his Guardian ad Litem, Cheryl AYERS; and Cheryl Ayers and Tom Ayers, wife and husband, Respondents, v.JOHNSON & JOHNSON BABY PRODUCTS CO., a SUBSIDIARY OF JOHNSON & JOHNSON CO., a New Jersey corporation, Petitioner.

No. 57667-0.

Supreme Court of Washington En Banc.

Nov. 7, 1991.

As Amended Jan. 10, 1992.

Williams, Kastner & Gibbs William J. Leedon, Mary H. Spillane, Margaret A. Sundberg, Seattle, for petitioner.

Anderson, Holman & Houghton Elaine Houghton, Tacoma, Edwards, Sieh, Wiggins & Hathaway Charles K. Wiggins, Seattle, for respondents.

Laurie D. Kohli, Seattle, for amicus curiae for petitioner on Behalf of Washington Defense Trial Lawyers Ass'n.

Geoffrey R.W. Smith, Washington, D.C., for amicus curiae for petitioner on Behalf of Atra.

Gary N. Bloom, Bryan P. Harnetiaux, Spokane, for amicus curiae for respondents on Behalf of Washington State Trial Lawyers Ass'n.

GUY, Justice.

A 15-month-old child suffered irreparable brain damage after inhaling baby oil.The child's parents and guardian ad litem sued the manufacturer of the oil, Johnson & Johnson Baby Products Co., alleging that the injury was proximately caused by the manufacturer's negligence in failing to put a warning on the container.The jury returned a verdict for the child and his parents.The trial judge granted Johnson & Johnson a judgment notwithstanding the verdict, or, alternatively, a new trial.The Court of Appeals reinstated the jury verdict.We affirm the Court of Appeals.

FACTS

In the early evening of April 23, 1985, 15-month-old David Ayers and his twin brother were playing in their parents' house.Mrs. Ayers was getting ready to go to work, and Mr. Ayers was watching television.Two of David's sisters were also at home.David entered a bedroom, where he found a purse belonging to his 13-year-old sister, Laurie, on the floor and open.Inside the purse was an unmarked container that Laurie had filled with Johnson & Johnson's baby oil for use at school after her gymnastics class.Mrs. Ayers unexpectedly came across David just as he began to drink the oil.In immediate and concerned reaction, she yelled at him to stop, causing him to gasp and inhale some of the oil into his lungs.Mrs. Ayers immediately took the container away from David.She was relieved to discover that it held baby oil transferred from its original container, as she believed that the only effect would be diarrhea.Mrs. Ayers inspected the original container to verify her understanding and found no warning.Interpreting the absence of any warning as an indication that there was no need for concern, she told two of her older children, who were to babysit the twins while she was at work, to call her if any problems developed.Expert testimony established that even if Mrs. Ayers had at this time realized the danger, immediate medical attention would not have prevented the oil from diffusing throughout David's lungs, reducing their ability to deliver oxygen to his blood.

Later that evening, David began to have difficulty breathing.His family took him to a hospital, where doctors placed him on a respirator.His progress was not good, and several days later he was sent to St. Louis for extracorporeal membrane oxygenation therapy, a special procedure involving pumping the blood outside the body and enriching it with oxygen.David improved slightly, but shortly after returning to Washington he suffered a cardiac arrest, which in turn led to brain damage.

Today David cannot move his arms or legs, which are stiff and spastic.He has limited control of his head movements.He cannot speak, is mentally retarded, and is subject to seizures.

David's parents and his guardian ad litem (hereafter "the Ayerses") brought a product liability action against Johnson & Johnson based on failure to warn of the danger of aspirating baby oil.After a 5-week trial, the jury found in favor of the Ayerses, awarding $2 million to David and $500,000 to Mr. and Mrs. Ayers.The trial court granted Johnson & Johnson's motion for judgment notwithstanding the verdict on the grounds that the evidence failed to establish proximate causation or foreseeability of harm.The court alternatively ordered a new trial based on jury misconduct.The Court of Appeals reinstated the jury verdict.Ayers v. Johnson & Johnson Baby Products Co., 59 Wash.App. 287, 797 P.2d 527(1990).We affirm the Court of Appeals.

ISSUES

This case presents three issues for review.First, did the Ayerses present sufficient evidence to establish that the absence of a warning on the baby oil container proximately caused David's injury?We hold that the Ayerses' evidence was sufficient to sustain the jury's verdict in their favor.

Second, did the Ayerses establish that Johnson & Johnson's baby oil was not reasonably safe because adequate warnings were not provided at the time of manufacture, as required under RCW 7.72.030(1)(b)?Resolution of this issue requires that we discuss the nature of a product liability claim based upon inadequate warnings at the time of manufacture, and, in particular, that we address whether foreseeability is an element of such a claim.We hold that the test for inadequate warnings under RCW 7.72.030(1)(b) is based on a strict liability standard, that the test requires no showing of foreseeability, and that it entitled the jury to find that the product was not reasonably safe because adequate warnings were not provided.

Third, did the trial court err in ruling that a new trial was required because of juror misconduct?We hold there was no cognizable juror misconduct, and that in any case the verdict was validated when the trial court polled the jury in open court.

ANALYSIS

I

In a product liability suit alleging inadequate warnings, the plaintiff must show that his or her injury was proximately caused by a product that was "not reasonably safe because adequate warnings or instructions were not provided".RCW 7.72.030(1).The trial court granted Johnson & Johnson's motion for judgment notwithstanding the verdict on the grounds that the Ayerses failed to prove that the failure to warn of the dangers of aspirating baby oil proximately caused David's injuries.The Court of Appeals disagreed, holding that the Ayerses had sufficiently established proximate causation to support the jury's verdict.Ayers, at 294, 797 P.2d 527.We concur with the Court of Appeals.

The trial court should grant a motion for judgment notwithstanding the verdict only if the court can say, as a matter of law, "that there is neither evidence nor reasonable inference therefrom to sustain the verdict."Hojem v. Kelly, 93 Wash.2d 143, 145, 606 P.2d 275(1980).The court must view all evidence in the light most favorable to the nonmoving party.Hojem, at 145, 606 P.2d 275.The motion should be granted only if the court can say, as a matter of law, that no reasonable person could have found in favor of the nonmoving party.At the same time, the trial court must evaluate the evidence supporting the verdict in order to ensure that the verdict was not founded on mere theory or speculation and that the evidence supporting the verdict was substantial.Hojem, at 145, 606 P.2d 275.

In the present case, the jury's conclusion that the absence of a warning proximately caused David's injuries was not so unsupported or unreasonable that a judgment notwithstanding the verdict was appropriate.

To show proximate causation, the plaintiff must show both cause in fact and legal causation.Baughn v. Honda Motor Co., Ltd., 107 Wash.2d 127, 142, 727 P.2d 655(1986)."Cause in fact refers to the 'but for' consequences of an act--the physical connection between an act and an injury."Hartley v. State, 103 Wash.2d 768, 778, 698 P.2d 77(1985).In the present case, when the evidence and all inferences therefrom are viewed in a light most favorable to the Ayerses, the evidence adequately supports the jury's verdict on the question of cause in fact.

Expert testimony established that once David inhaled the oil there was no way to get it out, and medical attention would not have prevented injury to his lungs.Therefore, the issue as regards cause in fact does not concern whether had there been an adequate warning, Mrs. Ayers would have been alerted to the danger when she inspected the label on the bottle and so sought immediate medical help.Rather, the issue concerns whether had there been an adequate warning, David never would have inhaled the oil because the Ayerses would have kept it out of his reach.This was what the parties contested at trial and is the issue we examine here.

As the Court of Appeals noted, members of the Ayers family testified that they kept items they knew to be dangerous out of the reach of the twin baby boys.Ayers, 59 Wash.App. at 291, 797 P.2d 527.Mrs. Ayers testified that she made a practice of reading labels on products, and that she shelved them at home according to what she read on the labels.Items she knew to be particularly dangerous, such as cleaning waxes or bathroom cleansers, were shelved up high in a cupboard above the kitchen stove or in a box on the top shelf of the bathroom closet.Items she perceived as less dangerous were treated with less care.Before David's accident, she regarded baby oil as one of these less dangerous items, thinking that the only danger it presents is diarrhea if ingested.Accordingly, she usually kept it on the dresser in the babies' room, where she could reach it easily.This location was not, she testified, out of the babies' reach.She testified that if she had been aware of the dangers of aspiration, the baby oil would have been kept up high in the medicine box.She also said that if she had been aware of the dangers, she would have alerted other members of the family.She had specifically told her teenage daughters that if they were carrying in their purses anything...