Wilson Elser recently obtained a defense verdict on behalf of a client, Grammer Inc., in a product liability case where the plaintiff sought more than $43 million in damages.

The case involved an accident stemming from the plaintiff’s use of a commercial tractor/mower. Grammer was the manufacturer of the seat that was installed on the subject tractor and that contained an operator presence “seat switch,” a primary issue in the case. The plaintiff was seriously injured when he was ejected from the seat of the tractor and run over while aerating a sports field as part of his duties as an employee of a San Diego school district. The “safety interlock system” on the tractor was designed to shut off power to the engine if the operator left the seat while the machine was in drive mode or there was power to an attachment. On the day of the accident the tractor continued to operate and move forward despite the plaintiff’s ejection from the seat and ran over him, causing substantial injuries.

The plaintiff brought suit against numerous parties, including the manufacturer of the tractor, Excel Industries; the manufacturer of the seat, Wilson Elser’s client Grammer; and the dealership, the manufacturer of the aerator and various manufacturers of the electrical components. Plaintiff alleged the safety system, including the “seat switch” in Grammer’s seat, was defective and caused the accident. Plaintiff also alleged that the failure of the tractor to have a seat belt – an optional feature on Grammer’s seats – was a design defect.

During more than two years of litigation against Grammer, plaintiff and defense expert tests consistently indicated that it was a “neutral lock switch” on the tractor itself, not the Grammer seat switch, which had malfunctioned causing a failure of the safety interlock system. Eventually, every defendant except Grammer settled out of the case. Just days before trial, plaintiff’s counsel reportedly visited the school district office and interviewed a “key” witness without notice to Wilson Elser, and that witness changed critical testimony previously given in deposition more than two years prior. As a result, less than a week before trial began plaintiff’s primary liability expert changed his opinion and now claimed it was the Grammer seat switch that had malfunctioned and not the neutral lock switch.

Plaintiff based this new “theory” primarily on a prior recall that Grammer had initiated years earlier to replace its seat switch due to unspecified reports “from the field” that there were occasional problems with the Grammer seat switch. Although plaintiff’s counsel relied heavily on evidence of the prior recall at trial, there was no “direct” evidence the seat switch had actually failed. The plaintiff’s expert opined that despite his own testing the subject seat switch was prone to intermittent failure and that this had caused the accident. Liability was also premised on the absence of a seat belt, despite the tractor’s lack of a ROPS (rollover protective system) and the fact the seat as designed provided a seat belt as an option. Evidence was introduced that the standard in the tractor industry is that seat belts should not be used without a ROPS.

Trial lasted approximately three and a half weeks. The plaintiff asked the jury for approximately $3.6 million in economic damages and a total of $40 million in non-economic damages. The jury was instructed on causes of action for Strict Product Liability/Manufacturing Defect with respect to the Grammer seat switch and Strict Product Liability/ Design Defect with respect to the lack of a seatbelt. The jury was given California’s “Risk / Benefit” test to determine whether a design defect was present.

The jury deliberated approximately five hours before returning a defense verdict on both counts. The lowest demand was approximately $600,000 and the last offer from the defense was $35,000.