By John W. Scanlan, J.D.
An electronics hobbyist who was diagnosed with mercury poisoning could not hold vacuum tube makers and an electronics seller liable because he did not show that mercury from the vacuum tubes was the cause of his injuries, a federal court in Pennsylvania ruled in granting summary judgment to the companies (Inman v. General Electric Co., September 20, 2016, Cercone, D.).
In 2001, the hobbyist began buying vintage and antique electronics from flea markets, garage sales, estate sales, and others. Many of these devices contained vacuum tubes that were instilled with elemental mercury inside the vacuum-sealed glass when they were manufactured from the 1930s and 1960s. A number of the vacuum tubes shattered or otherwise failed, with some of them broken during shipping. According to the hobbyist, it was only when he was diagnosed with mercury poisoning in 2009 that he learned that vacuum tubes contained mercury, whereupon he stopped using them. He brought suit against several companies, including General Electric Corp. (successor-in-interest to RCA Corp.), CBS Corp. (successor-in-interest to Westinghouse Electric Corp.), Richardson Electrics, Ltd., and MCM Electronics (from which he had bought electronic equipment). The hobbyist subsequently withdrew his claims for design strict liability, manufacturing strict liability, negligent product design, negligent product manufacturing, and breach of warranty, but maintained his claims for negligent and strict liability failure to warn and for negligence per se. The defendants moved for summary judgment.
Negligence per se. The defendants’ alleged violations of the Toxic Substances Control Act (TSCA) and the Mercury Export Ban amendments to the TSCA did not establish negligence per se. Neither the TSCA nor the Mercury Export Ban provided a private right of action for money damages. Further, the TSCA took effect in 1977 and the Mercury Export Ban was enacted in 2008, years after the last vacuum tubes were produced in the 1960s, but there was no evidence that Congress intended these laws to have a retrospective effect. In addition, the hobbyist did not show that these statutes protected a class of persons narrower than the general public, the first element of a claim for negligence per se.
Failure to warn. The hobbyist’s claims that the companies failed to recall their products, issue product service announcements, or otherwise inform the public of the risk of their vacuum tubes failed as a matter of law. There is no post-sale duty to warn in Pennsylvania when a plaintiff has not alleged that the product had a latent defect at the time it left the manufacturer’s control that would make it dangerous for everyday use. Furthermore, there is no duty to recall in Pennsylvania law.
Although the hobbyist’s testimony that he stopped using vacuum tubes when he learned that they contained mercury was sufficient to establish that he would have changed his conduct had he been warned of the risk, he did not show that mercury from these tubes was the cause-in-fact of his injuries. An expert for the hobbyist opined that the tubes contained enough mercury to be capable of releasing harmful quantities of mercury vapor, but did not test the tubes at issue regarding the methods of failure the hobbyist had claimed and did not do any scientific evaluation as to whether these methods of failure could result in the release of mercury or mercury vapor. An expert on vacuum tubes testified that any release of mercury vapor upon the failure of a vacuum tube envelope would have taken "days, weeks, even years" for all the mercury to be released rather than seconds or minutes as opined by the hobbyist’s expert. The hobbyist’s medical expert was not an expert in vacuum tubes and, thus, had no basis for his opinion that the vacuum tubes were a substantial factor in causing the hobbyist’s mercury poisoning.
The case is No. 2:11cv666.
Attorneys: Paul A. Tershel (Tershel & Associates) for Ryan C. Inman. Anthony J. Rash (Dickie, McCamey & Chilcote, P.C.) for General Electric Co. and CBS Corp. Joni M. Mangino (Zimmer Kunz, PLLC) for Richardson Electronics, Ltd.
Companies: General Electric Co.; CBS Corp.; Richardson Electronics, Ltd.
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