Richter v. Limax Intern., Inc.
| Citation | 45 F.3d 1464 |
| Decision Date | 25 January 1995 |
| Docket Number | LMX-M,Nos. 93-3167,93-3185,s. 93-3167 |
| Parties | Dea RICHTER, Plaintiff-Appellant, v. LIMAX INTERNATIONAL, INC.,anufactures Consultants, Inc., Defendants-Appellees. Dea RICHTER, Plaintiff-Appellee, v. LIMAX INTERNATIONAL, INC., Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Michael P. Oliver (Karl Kuckelman, with him, on the brief) of Wallace, Saunders, Austin, Brown and Enochs, Overland Park, KS, for defendant-appellant.
William H. Pickett (David T. Greis, with him, on the brief), of William H. Pickett, P.C., Kansas City, MO, for plaintiff-appellee.
Before MOORE, Circuit Judge, LAY 1 and McWILLIAMS, Senior Circuit Judges.
Dearmedia Richter appeals from the district court's grant of judgment as a matter of law to Limax International, Inc. and LMX-Manufactures Consultants, Inc. (collectively Limax). Richter v. Limax Int'l, Inc., 822 F.Supp. 1519 (D.Kan.1993). Richter claimed that repetitive use of a mini-trampoline manufactured by Limax caused stress fractures in her ankles. In March 1991, Richter sued Limax alleging the mini-trampoline was defectively designed and came with an inadequate warning. The jury found, in a special verdict, that the mini-trampoline was not defectively designed. However, it nonetheless found Limax was liable under theories of strict liability and negligence for its failure to warn and determined damages to be $472,712 reduced by Richter's percentage of fault of thirty-eight percent.
Limax then moved for judgment as a matter of law, which the court granted. The court concluded the defendant had no duty to warn because the plaintiff had failed to prove that Limax had knowledge of the danger of stress fractures or that the danger was known in the state of the art. The court further concluded that under these circumstances Kansas law does not impose a duty on manufacturers to warn about dangers they might have discovered by conducting reasonable tests. Richter appealed. We reverse and remand to the district court with instructions to reinstate the jury's verdict and enter a judgment on the verdict.
Richter purchased a mini-trampoline from Limax on February 1, 1989. There were no instructions in or on the box containing the mini-trampoline, although the trampoline did have sticker on it stating: Richter stated she only used the trampoline for jogging. She began by jogging for short periods of time but eventually increased her time up to sixty minutes per day. She used the product until March 10, 1989. 2 The next day she experienced severe pain in her ankles while walking. A doctor diagnosed her as having stress fractures in her ankles. Richter testified the pain forced her to discontinue her work as a sales representative for a furniture manufacturer.
The plaintiff produced expert testimony which established relatively simple tests would have revealed that because the surface of a mini-trampoline depresses furthest in the center and decreasingly towards the edges, as a jogger's feet strike the trampoline's surface and it gives way, the inside of each foot drop further than the outside. This rotation of the foot, which is termed "eversion," occurs to a lesser degree in normal jogging, but rebound jogging markedly accentuates the degree of rotation.
Further testimony established it has long been known that lateral pulling on a bone by ligaments or muscles can cause microscopic fractures. If the bone is not allowed time to heal and the stress on the bone continues, these tiny fractures can coalesce into a stress fracture. The eversion of the feet caused by the mini-trampoline results in certain tissues Limax admitted it conducted no tests relating to the long-term effects of jogging on the mini-trampoline and did not systematically review published studies of mini-trampolines by sports medicine and exercise specialists. The CEO of Limax testified the company had sold approximately two million mini-trampolines world-wide and Richter's complaint about stress fractures was the first Limax had received. Further, although mini-trampolines had been in use since 1975, by the time of Richter's purchase no one had yet suggested their use entailed a risk of stress fractures. No expert testifying at trial could identify any study or article on rebound jogging or mini-trampolines that reported ankle stress fractures or pointed out the risk joggers faced of incurring such an injury.
pulling laterally on particular ankle bones. Richter's expert witnesses testified that long-term use of the trampoline could cause stress fractures in the affected ankle bones.
Richter, however, produced testimony by experts that observations from very simple tests, interpreted in light of well-established knowledge about the structure of the foot and the causes of stress fractures, would have made it apparent that the repetitive use of the mini-trampoline for jogging could cause stress fractures. Two experts testified the danger was well within the state of society's knowledge about such matters. One of Richter's experts pointed out that although there were no known reports concerning mini-trampolines as a cause of stress fractures, sport and exercise magazines as well as scientific and medical journals have long published articles establishing that repetitive jogging can cause stress fractures. The testimony verified that such repetitive jogging on a mini-trampoline exaggerates the stresses that result from repetitive jogging on a flat surface. Although the mini-trampoline was found by the jury not to have a defective design, Richter's expert witness testimony established that the marked accentuation of eversion caused by the design of the mini-trampoline could result in her kind of injury developing from her repetitive jogging.
Richter contends Kansas law imposes a duty on manufacturers to test their products and warn consumers appropriately. In Wooderson v. Ortho Pharmaceutical Corp., the Kansas Supreme Court held an ethical drug company had a duty to warn the medical profession about what "it knows, has reason to know, or should know, based upon its position as an expert in the field, upon its research, upon cases reported to it, and upon scientific development, research, and publications in the field." 681 P.2d 1038, 1057 (Kan.), cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). Richter interprets the language "upon its research," to require manufacturers to test their products for their potential to injure consumers. 3
The district court held, "though not without misgivings," that Kansas law does not require a manufacturer to test its products for dangers not otherwise known in the state of the art. Richter, 822 F.Supp. at 1524. The court observed that Wooderson dealt with the question of "when the state of the scientific literature becomes so persuasive of the existence of a danger that the manufacturer has a duty to warn." Id. at 1523. The court held that because the evidence indicated that prior to Richter's injuries, no one was aware of the possibility that jogging on a mini-trampoline could cause stress fractures, there was nothing to give rise to a duty warn. The district court found that Wooderson did "not require that a manufacturer warn users of its products of dangers which, although not known by anyone in the field, could be found by reasonable testing." Id. at 1522.
The district court acknowledged that Kansas law recognizes a manufacturer's duty to test, quoting from Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 607 P.2d 1339, 1350 (1980) () The rule is that a manufacturer has a duty to make such tests and inspections, during and after the process of manufacture, as should be recognized as being reasonably necessary to secure the production of a safe product; and a manufacturer who negligently fails to use reasonable care in making such tests and inspections, and thereby produces a defective article which causes damage while being put to an ordinary, anticipated use, is liable for such damage.
However, the district court in granting judgment as a matter of law in favor of Limax limited the Lindquist case (admitting there was no compelling logical basis for doing so) to requiring testing only for specific design and manufacturing defects. 4
Appellate review of a district court's determination of state law is de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991). We find the district court's restrictive interpretation of Lindquist is contrary to Kansas law on the duty of a manufacturer to warn consumers of foreseeable dangers. An earlier district court decision summed up Kansas law relating to the duty to warn consumers:
Ordinarily, a manufacturer has a duty under Kansas law to warn consumers and users of its products when it knows or has reason to know that its product is or is likely to be dangerous during normal use. The duty to warn is a continuous one, requiring the manufacturer to keep abreast of the current state of knowledge of its products as acquired through research, adverse reaction reports, scientific literature, and other available methods. A manufacturer's failure to adequately warn of its product's reasonably foreseeable dangers renders that product defective under the doctrine of strict liability.
Pfeiffer v. Eagle Mfg. Co., 771 F.Supp. 1133, 1139 (D.Kan.1991) ().
Kansas applies the same test to whether a manufacturer met his duty to warn under negligence as it does under strict liability. 5
Kansas law makes clear this general duty to warn consumers of foreseeable dangers is not...
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