The Seventh Circuit Court of Appeals has determined that a table-saw manufacturer’s repeated references during a jury trial to its theory that the plaintiff’s attorneys and one of his witnesses, the inventor of a table-saw safety feature, had a joint venture to bring product liability lawsuits to force manufacturers to license the inventor’s patent and incorporate the feature into their products was prejudicial and denied the plaintiff a fair trial. Stollings v. Ryobi Techs., Inc. No. 12-2984 (7th Cir., decided August 2, 2013). The plaintiff, who had removed the saw’s safety features before he was injured, alleged that other, better safety features were available thus making the product defective. One of Ryobi’s former chief engineers testified that he had ceased using the product’s safety feature and installed one of the alternatives on his own saw because he believed it was safer.

In its opening statement, during the trial and in closing, Ryobi repeatedly attacked plaintiff’s counsel and referred to a newspaper article, which the Seventh Circuit determined was inadmissible hearsay, about Stephen Gass, the inventor of the flesh detection technology that Ryobi had refused to license and incorporate into its product after failed negotiations. Gass had denied that the article’s author quoted him about being approached by product liability lawyers, and no quotations were used in the article. Still, Ryobi’s counsel asserted during closing that the article quoted Gass and that Gass had not denied the charge.

According to the Seventh Circuit, the argument was improper because it was not relevant: “The suggestion that the case was an intellectual property case ‘masquerading as a personal injury case’ did not bear on whether Ryobi designed and sold a defective product. How does a statement about counsel’s motive help a jury decide whether there was an injury? A duty? A breach of that duty? Or causation?” It was also improper, in the court’s view because no admissible evidence supported it. While the trial court had allowed the attack on counsel because, initially it appeared to be limited to Gass’s credibility and motives, the court also concluded before instructing the jury that Ryobi had gone too far. The court’s remedy, however, allowing limited reference and tailoring its instructions to other table-saw injury cases, did not adequately correct the problem.

Because the Seventh Circuit reversed the judgment and remanded for a new trial, it also addressed whether the trial court had improperly excluded the testimony of plaintiff’s expert John Graham, “a scholar who served from 2001 to 2006 as the director of the Office of Information and Regulatory Affairs in the federal Office of Management and Budget and is now the dean of the Indiana University School of Public and Environmental Affairs.” Graham would have provided testimony about the social utility of automatic braking technology on all power saws. The court excluded the evidence on reliability grounds because Graham had assumed that the automatic braking technology was 90 percent effective at preventing injuries. According to the Seventh Circuit, the exclusion “intruded too far into the province of the jury.… Although the 90 percent figure was undoubtedly a rough estimate, it is also clear that Graham’s bottom-line estimate of societal costs of saw accidents was so high that his opinion would have remained essentially the same even if the effectiveness rate were actually quite a bit lower.” The court also found the testimony relevant.

As to the lower court’s purportedly erroneous instructions, the Seventh Circuit upheld its instruction on unreasonably dangerous products, but rejected the “sole proximate cause instruction” as confusing to the jury and inapplicable in a case where an outside third party was not also potentially responsible for the injury. In its discussion, the court noted that Illinois is a modified comparative fault jurisdiction, in which a plaintiff partially responsible for his injury will receive an award reduced according to the amount he was at fault as long as he was not more than 50 percent at fault. Ryobi decided before trial to abandon the comparative fault defense, thus the plaintiff would have been entitled to recover all of his damages if the company’s negligence was just one proximate cause of his injury. According to the Seventh Circuit, the trial court’s instruction pointing to the possibility of plaintiff’s conduct as the sole proximate cause of his injury was confusing because the evidence “did not suggest that there was a sole proximate cause of [the plaintiff’s] injury.”