camelsFive plaintiffs in a smoking lung cancer case in a Baltimore City, Maryland case captioned James Harrell, et al v. ACandS, INC., et al, Consol. Case No. 24X16000053 saw their claims go up in smoke on November 15, 2016 when the Court granted certain Defendants’ Motion for Summary Judgment on the Basis of Assumption of Risk and Contributory Negligence. With Judge Althea M. Handy presiding, the Court addressed whether the plaintiffs had assumed the risk of developing lung cancer by knowing of the addictiveness of cigarettes and their ability to cause lung cancer, but nevertheless proceeding to smoke cigarettes numbering in the thousands.

In Maryland, assumption of the risk is a defense that serves as a complete bar to plaintiff’s recovery of damages under both negligence and strict liability for failure to warn causes of action.[1] To prevail on the defense of assumption of the risk, the defendant must show that the plaintiff “1) had knowledge of the risk of danger; 2) appreciated that risk; and 3) voluntarily confronted the risk of danger.”[2] Under Maryland law, the first two elements are judged by an objective standard. The third element requires that the defendant establish that there was no restriction on the plaintiff’s freedom of choice either by existing circumstance or by coercion emanating from the defendant.[3]

With regard to the first element, the Court in Harrell found that the plaintiffs had knowledge and appreciated the risk that cigarettes were hazardous not by any direct evidence, but instead by relying on discussions of the hazards in the popular media, an almost guilt by association theory. For example, the Court noted that Reader’s Digest, “one of the most widely read publications in the 1920s and 1930s published articles discussing the addictiveness of cigarettes” and that a popular country artist recorded lyrics in 1947 that used phrases like “nicotine slave” and “smoke yourself to death.” The Court further relied on Maryland jurisprudence that concluded that “the ordinary consumer was aware of smoking hazards . . . since the 1950s.”[4]

With regard to the second element, the Court again relied not on any appreciation of risk specific to the plaintiffs, but on “common knowledge by the 1950s” that smoking cigarettes caused lung cancer. The court cited CBS News Program airings on smoking and lung cancer, 1950s print media reporting the connection, and again referenced case law that “found that from 1947 to 1984 the dangers of smoking were obvious and generally known so as to bar the plaintiff’s claims.”[5]

Finally, with regard to the third element, the court found that because the plaintiffs smoked such a high number of cigarettes (reaching in the tens and hundreds of thousands) from the 1950s through the subsequent decades, during a time when warning labels were required on every package, they voluntarily confronted the risk of smoking.

Earlier this year in the The Estate of Willard Entwisle, et al. v. ACandS, Inc. et al., Consol. Case No. 24X15000108, a different Baltimore
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Artboard 1You get served with a citation in a new products suit. The facts do not look good. The airbag system didn’t deploy. Maybe a tire exploded. Perhaps the steering assembly failed. A call is made to the plaintiff’s attorney – you want an expert to use an onboard diagnostic tool to test for what went wrong. Expecting to reach an amenable date for an inspection, you get a response that you were not quite expecting – the vehicle (or tire or steering assembly) has been salvaged and is no longer available for inspection. What happens next, and the legal theories involved, undoubtedly vary from state to state. Here we take a brief look at Louisiana law on the “case of the missing product.”

Adverse Presumption

In Williams v. General Motors Corp., 639 So. 2d 275, 276 (La. App. 4 Cir. 1994), the plaintiff was driving as 1985 Buick manufactured by GM when his steering failed and his vehicle veered into a guardrail. After the accident, the Williams’ damaged vehicle was taken to Jackie Rowan’s Automotive Repair where “[a]n employee of the repair shop discarded the rack and pinion steering assembly. Mr. Williams, therefore, could not produce those parts at the trial in support of his claim that they were defective.” Id. at 278. General Motors asserted that the failure to produce those parts in court “creates a presumption that the evidence would have been unfavorable to his cause.” Id. The court held that “[w]here a litigant fails to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to him….the record supports Mr. Williams’ contention that the part was inadvertently discarded when it was mistaken for scrap metal by an employee of Jackie Rowan’s Automotive Repair Shop.” Id. The court held that Mr. Williams therefore provided a reasonable explanation for his failure to produce the evidence in court and no such unfavorable presumption applied. Id.

While in the Williams case the plaintiff was able to provide a ‘reasonable explanation’ for his failure to produce the allegedly defect part, such a determination is fact intensive and varies from case to case. Depending on the plaintiff’s response to the inquiry requesting an inspection of the product, there may be an opportunity to seek an adverse presumption prior to trial.

 

The Firestone Case & Summary Judgment

firestoneAlternatively, if the facts so align, a more cost effective approach may be a motion for summary judgment. In a very recent case, Gladney v. Milam, 39, 982 (La. App. 2 Cir. 9/21/15); 911 So. 2d 366, the plaintiff was driving a leased van equipped with Firestone tires when the van’s right front tire failed and the plaintiff lost control of his vehicle. Firestone filed a motion for summary judgment on the grounds that plaintiff could not prove a defective condition without producing the tire at issue, which had gone missing for reasons unknown. Id. at 368. The plaintiff had
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Occupational Hearing Loss (OHL) is one of the most prevalent work-related illnesses in the United States with 22 million workers exposed to hazardous noise each year, according to the Centers for Disease Control.

With approximately $242 million spent annually on workers’ compensation claims for disabilities arising from hearing loss, this number is set to increase in light of a new favorable holding for Louisiana employers with industrial workplace settings.
hearingThe Louisiana Supreme Court held in Arrant et al v. Graphic Packaging International, Inc. et al that defendant Graphic Packaging, which owns and operates a paper mill, box plant, and carton plant in West Monroe, Louisiana, is immune from suits in tort brought by its employees for noise-induced hearing loss injuries sustained from working around industrial machinery. The Supreme Court held that these injuries fell within the Louisiana Workers’ Compensation Act (“LWCA”) definitions of a covered “personal injury by accident” or an “occupational disease.”

“Arrant is the symbolic shot heard round the world in Louisiana when it comes to noise induced hearing loss suits.”

The Court heard testimony from expert audiologists that when high levels of energy enter the cochlea of the ear “it damages and destroys that row of hair cells in that particular part of the ear.” There is an “immediate injury to the inner ear” though the effect only becomes gradually perceptible over time and only with repeated or continuous exposures to high levels of noise. As such, the Court held that traumatic injury to the inner ear qualified as a personal injury by accident under the LWCA.

The Court also found that “hazardous levels of industrial noise . . . was a condition very characteristic of and peculiar to the particular employment of working in a paper mill or box plant” and as such was an occupational disease under the LWCA.

Caution-Hearing-Protection-RequiredThe legal effect of Arrant is that suits against an employer for noise induced hearing loss injuries are now within the exclusive remedy provision of the LWCA. The practical effect of Arrant is that noise-induced hearing loss suits against employers are coming to an end. While technically the LWCA provides an exception for intentional acts, this is a difficult burden to meet. Were plaintiffs to amend their petition to assert an intentional tort against their employers, they would have to prove that the employers either desired that their employees sustain noise-induced hearing loss, or were substantially certain that such injuries were going to occur from their work around noise producing machinery inside their facilities.

Simply, Arrant is the symbolic ‘shot heard round the world’ in Louisiana when it comes to noise induced hearing loss suits.
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