Streich v. Hilton-Davis, a Div. of Sterling Drug, Inc.
| Decision Date | 13 December 1984 |
| Docket Number | No. 83-457,HILTON-DAVI,A,83-457 |
| Citation | 214 Mont. 44,692 P.2d 440,41 St.Rep. 2310 |
| Parties | , 40 UCC Rep.Serv. 109 Orrin STREICH, C. Edwin Williamson, and Clifford Boorman, Plaintiffs and Respondents, v.DIVISION OF STERLING DRUG, INC., a corp., Defendant and Appellant. |
| Court | Montana Supreme Court |
Boone, Karlberg & Haddon, Sam Haddon argued, Missoula, for defendant and appellant.
Garlington, Lohn & Robinson, Gary Graham argued, Missoula, for plaintiffs and respondents.
Hilton-Davis appeals from a judgment entered in the District Court for the Eleventh Judicial District, Flathead County after a jury awarded Streich, Boorman, and Williamson a total of $781,119 in damages. Hilton-Davis, as manufacturer of a chemical product called Fusarex, was found liable for damages based on theories of strict liability in tort, negligence, and breach of warranties. We affirm the judgment and damage award.
Fusarex is manufactured and sold by Hilton-Davis as a potato sprout suppressant. The directions for use of Fusarex require dusting seed potatoes just before storage. The Fusarex is expected to keep the treated seed potatoes from sprouting until after they are taken from storage, aerated, and planted. The Fusarex bag label contained the following statement: "After planting there may be a slight delay in emergence depending on weather conditions and variety."
Streich is a commercial seed potato grower who used Fusarex prior to 1977 in his potato operations in North Dakota and then Montana. In the fall of 1977, he purchased Fusarex from a Hilton-Davis distributor and dusted a quantity of his newly-harvested seed potatoes with it. The seed potatoes were then stored for the winter. In the spring, after inspecting the potatoes and keeping some for himself, Streich sold substantial amounts of the certified seed to Williamson and Boorman.
In June 1978, Streich, Williamson and Boorman began noticing problems with their potato crops. The seed potatoes treated with Fusarex showed delayed and erratic emergence, multiple sprouting, a heavy tuber set resulting in small potatoes, and reduced yield. A complaint was filed alleging strict liability in tort, negligence and breach of the implied warranties of merchantability and fitness. The jury returned a verdict finding Hilton-Davis liable on all three theories and granting damages to all three plaintiffs.
Hilton-Davis raises the following issues:
1. Was expert testimony necessary to establish the standard of care owed by Hilton-Davis to Streich, Williamson, and Boorman and to show that Hilton-Davis had breached that standard?
2. Was Hilton-Davis improperly denied adequate opportunity to cross-examine plaintiffs' expert witness?
3. Did the District Court improperly apply the doctrine of strict liability in tort to a commercial case, not involving personal injury, but involving harm to a potato crop?
4. Did the District Court err in allowing the question of whether the product Fusarex is "unreasonably dangerous" to go to the jury?
5. Did the District Court improperly instruct the jury on the theory of strict liability in tort and thus prejudice Hilton-Davis' right to a fair trial on all of plaintiffs' theories of recovery?
6. Did the District Court improperly submit the case to the jury on the theory of implied warranty?
7. Did the District Court improperly submit plaintiffs' case to the jury on the theory of negligence?
8. Did the District Court commit prejudicial error by refusing instructions which encompassed Hilton-Davis' theory of the case?
Hilton-Davis contends that, under the plaintiffs' theory of product liability, the plaintiffs must establish by a preponderance of the evidence the failure of Hilton-Davis to warn of adverse side-effects of Fusarex. Hilton-Davis points out that the single expert called by the plaintiffs to establish their case made no declaration as to failure to warn in his testimony nor did that expert testify that the Fusarex was defective. Relying on Hill v. Squibb & Sons, E.R. (1979), 181 Mont. 199, 592 P.2d 1383, Hilton-Davis contends that without such professional opinion testimony that the product was defective and that adequate warnings were not given, plaintiffs did not present a prima facie case and the court should have granted Hilton-Davis' motion to dismiss at the close of the plaintiffs' case.
In Hill, this Court upheld a directed verdict at the close of plaintiffs' case, in favor of Squibb, where the plaintiffs had not produced expert testimony that the package insert included with the product inadequately warned of the product's side-effects. This Court held that expert opinion was necessary in the Hill case because it involved matters to which a layman could have no knowledge at all and the court and jury must be dependent on such expert evidence. (181 Mont. at 207, 592 P.2d at 1388.)
This Court did not intend, through its decision in Hill, to narrow or back away from its statements in Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 518, 513 P.2d 268, 275, respecting the quantum and method of proof in product liability cases:
(Emphasis added.)
The language in Brandenburger applies to possible methods of proving defects in products, but it applies with equal force to the duty of a manufacturer to warn of adverse side-effects which may occur from the use of its product.
Here the only warning on the Fusarex bags was that after planting Fusarex might cause a slight delay in emergence, depending on weather conditions and variety. The warning itself was not sufficient to advise users that the emergence might be delayed and erratic, that multiple sprouting could result, that small potatoes could result from a heavy tuber set after the use of Fusarex, and that yield could be materially reduced.
The plaintiff's expert in this case produced scientific literature which gave results of field tests of the chemical in Fusarex on potatoes. The literature revealed a decided risk of multiple sprouting, delayed emergence, heavy tuber set, and reduced yield. The warning on the Fusarex bag that a slight delay in emergence might result hardly matched the possible adverse side-effects from its use. Any layman could understand the insufficiency of the warning. Expert testimony was not necessary.
We are presented here with a unique products-liability case. Fusarex was touted by its manufacturer as a sprout suppressant for potatoes. It seems fairly established in the testimony here that Fusarex did what its manufacturer said it would, that is, suppress potato sprouting. The trouble here is, when the time came for the seed potatoes to be aired and planted, after their Fusarex treatment, side-effects occurred of which Fusarex failed to give warning. Under the evidence in this case the plaintiffs established a standard of duty, that is the duty to warn of adverse side-effects, and that the manufacturer of Fusarex breached that duty or standard.
The second issue raised by Hilton-Davis relates to the cross-examination of plaintiffs' expert by Hilton-Davis' counsel.
On cross-examination, plaintiffs' expert testified that the Fusarex product was manufactured according to the company's designs and specifications. The question was then propounded to him that "therefore it was not in a defective condition at that time in that sense?" The court sustained objection upon the ground that the question was outside the field of expertise of the expert who had not "been qualified as an expert in determining what's in a bag of Fusarex."
As we have stated, this case involved a product which performed its primary function, that is suppressing sprouting of potatoes, but had adverse side-effects for which no warning had been given. Plaintiffs' expert had testified as to the literature on side-effects and his observation of the occurrence of those side-effects. The court was correct in determining that the question propounded to him on cross-examination by Hilton-Davis' counsel was outside his expertise. We find no merit in this claim of error.
Hilton-Davis contends that it was error for the District Court to submit the issue of strict liability in tort to the jury. It is the position of Hilton-Davis that strict liability in tort has no application in cases of lost profits in a purely commercial setting.
Montana adopted the theory of strict liability in tort contained in Restatement (Second) of Torts, Sec. 402A. Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 268. In Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 105, 106, 576 P.2d 711, 716, we set forth the elements of proof necessary to establish a prima facie case in strict liability of tort.
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