In a recent case, a Rhode Island Jury awarded $31.3 million to Brett and Stacie Smith after a 2014 swimming accident in a pond at the University of Rhode Island left Mr. Smith paralyzed from the chest down.  The jury found that the University of Rhode Island was negligent in its failure to post warning signs and to inform its guests that swimming was prohibited.

The Smiths were attending a wedding during the weekend of July 25, 2014, at the Whispering Pines Conference Center.  After the rehearsal dinner, several members of the wedding party decided to go swimming in Louttit Pond.  After twenty or so minutes in the water, Mr. Smith and some others swam to, and climbed atop, a large rock in the middle of the pond.  They dove off and began to swim away from the rock.  While swimming underwater, Mr. Smith struck his head on a submerged rock, causing his paralysis.

The case focused on whether the defendants owed Mr. Smith a duty of care.  The plaintiffs argued that a duty existed for the defendants to post warning signs indicating that swimming was not allowed or describing the potential danger.  Conversely, the defendants argued that no duty existed as Mr. Smith assumed the risk of his injuries and that the potential dangers were open and obvious.

At trial, the major issue primarily focused on whether it was reasonably foreseeable that individuals would swim and be injured in the subject pond.  The plaintiffs put forth evidence that the management of the property had outlawed swimming in the pond due to potentially dangerous conditions, but did not install signs that forbade swimming on the property or warned of the dangers that the pond possessed.   The plaintiffs argued that this failure constituted negligence, as it was foreseeable that: 1) people would swim in the pond; 2) the very nature of the property lent itself to swimming as it promoted access to the outdoors, specifically, the water as well as numerous outdoor activities; and 3) the pond had a dock and a canoe launching point which encouraged people to use the water.

The defendants asserted two main defenses: 1) Mr. Smith assumed the risk of his injuries; 2) the condition was open and obvious. In Rhode Island, assumption of the risk is an affirmative defense that absolves a defendant of liability regardless of the defendant’s own negligence.  Loffredo v. Merrimack Mutual Fire Ins. Co., 669 A.2d 1162 (R.I. 1996).  To prevail on the assumption of the risk defense, defendants need to show that a plaintiff voluntarily encountered an unreasonable risk and appreciated its unreasonable character.  Id.  In examining this subjective standard, one must look at what the particular plaintiff saw, knew, understood, and appreciated.  Id.  As for the open-and-obvious defense, a property owner in Rhode Island is not liable for injuries that a guest suffered while on an owner’s premises when that guest was engaging in an open and obvious danger. Bucki v. Hawkins, 914
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The overwhelming majority of courts (including all seven federal circuits that considered the issue) have rejected the so-called “innovator liability” doctrine.[1]  In 2017, however, the California Supreme Court in T.H. v. Novartis Pharm. Corp.[2] unanimously recognized the doctrine holding that brand-name prescription drug manufacturers owe a duty to warn to consumers who use generic drugs.[3]  In March of 2018, the Massachusetts Supreme Judicial Court (SJC) considered the issue, and took a middle ground.  Specifically, in Rafferty v. Merck & Co., Inc.,[4] the SJC held that plaintiffs who ingest the generic form of a drug may bring failure to warn claims against the brand-name manufacturer of the drug if the brand-name defendant acted recklessly by “intentionally fail[ing] to update the label on its drug while knowing or having reason to know of an unreasonable risk of death or grave bodily injury associated with its use.”[5]  In so doing, the SJC reasoned that a plaintiff is, in fact, injured by a brand-name product’s label despite never having used said product because statutes require identical labeling of the generically manufactured version.[6]

The Facts

In 2010, a physician prescribed Finasteride, the generic version of the brand name drug Proscar, to treat Rafferty’s enlarged prostate.[7]  Rafferty experienced anticipated temporary side effects from the drug, causing him to stop taking the medication.[8]  Rafferty, however, continued to experience these side effects and his physician informed him that they could actually continue “indefinitely.”[9]  The potential lifelong side effects of this drug were not disclosed within the brand-name manufacturer’s nor the mirrored generic manufacturer’s warning label.[10]  Rafferty presented evidence that the brand-name manufacturer became aware of these potential long-term side effects by 2008, when it updated Proscar’s warning label in select European markets to include this risk.[11]

Rafferty filed suit against the brand-name manufacturer in 2013, asserting a claim of negligence for, inter alia, failure to warn and for violation of the Commonwealth’s Consumer Protection Statute, G.L. c. 93A.[12]  The Superior Court dismissed Rafferty’s claims, “ruling that [the brand-name defendant] owed no duty of care to [him].”[13]  The SJC took over the case by its own motion from the Appeals Court.[14]

The SJC Weighs In

Traditionally, Massachusetts has not recognized liability for products manufactured by others.[15]  However, the SJC noted that The Restatement (Third) of Torts allows a modification to this general rule in exceptional cases.[16] The SJC considered innovator liability to require such a modification given the certainty that a user of a generic drug will rely on the label fashioned by the brand-name manufacturer and as state law shields failure to warn claims from generic manufacturers, leaving plaintiffs without recourse for their injuries.[17] However, the SJC also recognized that imposing innovator liability could impact the public policy of encouraging innovation in the drug market and a potential increase in drug pricing.[18]

Balancing these competing interests, the court held that, “a brand-name manufacturer
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On April 16, 2018, a Rhode Island court addressed for the first time whether an entity owes a duty of care to protect non-employees from exposure to the asbestos-tainted work clothes of the entity’s employee.  In a decision denying the defendant Crane Co.’s motion for summary judgment in the matter of Carolyn Nichols, as Executrix of the Estate of Iva Pearl Jones, et al. v. Allis Chalmers Product Liability Trust, et al., C.A. No. PC-2008-1134, Judge Sarah Taft-Carter held that while the existence of such a duty is determined on a case-by-case basis, the plaintiffs had presented sufficient evidence to establish that Crane Co. had a duty to protect against such “secondary” or “take-home” exposure.  The decision is significant in that the Court demonstrated a willingness to impose such a broad duty upon an employer if certain factors are met through the plaintiff’s evidence.

In the Jones matter, the plaintiffs alleged that the decedent, Iva Pearl Jones (“Ms. Jones”) was exposed to asbestos from the clothing of her brother-in-law, Stanley Nichols (“Mr. Nichols”) while Mr. Nichols was employed by Crane Co. from 1979 to 1980 and resided in the same home as Ms. Jones and other family members.  The testimony also established that Ms. Jones “always” did the laundry, including Mr. Nichols’ work clothes.  Ms. Jones was diagnosed with mesothelioma in 2005 and passed away in 2007.  The plaintiffs alleged that Crane Co. failed to take adequate precautions to prevent asbestos fibers from leaving the work site and failed to warn employees of a foreseeable risk of take-home exposures to their cohabitants. Following discovery, Crane Co. moved for summary judgment on all counts asserting that it had no duty of care to Ms. Jones, its employee’s sister-in-law, and that the plaintiffs had failed to establish that the alleged exposure to asbestos from Mr. Nichols’ clothing caused Ms. Jones’ disease.

The Court, noting that an employer’s duty to protect against “take-home” exposures is an issue of first impression in Rhode Island, recognized the division of existing authority in other jurisdictions that have addressed the issue in NY, MD, GA, TN, NJ, IL, and ND. The Court held that it need not find a “special relationship” between Crane Co. and Ms. Jones to impose a duty because the plaintiffs allegations were based upon Crane Co.’s own alleged misfeasance in utilizing asbestos-containing products and not on an alleged failure of Crane Co. to protect against the actions of a third-party tortfeasor.  Instead, the Court held that under Rhode Island law, the existence of a duty of care is determined on a case-by-case basis considering the following factors: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of connection between the defendant’s conduct and the plaintiff’s injury; (4) the policy of preventing future harm; (5) the burden to the defendant and consequences to the community in imposing a legal duty; and (6) the relationship between the parties.

After considering the above-factors, the Court
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