Products Liability Law Daily Injured consumer failed to support speculative products liability claims against wheelchair sellers
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Tuesday, January 21, 2020

Injured consumer failed to support speculative products liability claims against wheelchair sellers

By Joshua Frumkin, J.D.

Failure to designate expert witnesses doomed consumer’s design and manufacturing defect claims.

In a products liability suit brought by a consumer who was injured when the armrest on his wheelchair allegedly broke, a federal court in Texas granted summary judgment to two nonmanufacturing sellers of the wheelchair. Both companies—Medical Depot, Inc. and Lincare, Inc.—were found to fall within the state’s "innocent seller" protections after the consumer failed to provide sufficient evidence to support his claims (Martinez v. Medical Depot, January 17, 2020, Alvarez, M.).

On January 19, 2016, Lincare sold and delivered a non-motorized wheelchair to a disabled consumer’s home. Lincare both rents and sells, but does not manufacture, medical equipment. Lincare purchased the wheelchair from Medical Depot, who claimed to have received the wheelchair from a third-party manufacturing supplier. The consumer received an operating manual and signed a Manual Wheelchair Orientation checklist, which he admitted to not reading. During October 2016, to relieve pressure on an ulcer sore, the consumer reportedly repositioned himself hourly by leaning on the wheelchair’s armrest. The armrest broke on October 29, 2016, which caused him to fall and break his femur. When the consumer brought suit, the court granted him six months to designate expert witnesses and reports. He failed to designate any expert witnesses within that time and was not granted leave to extend. Both Medical Depot and Lincare subsequently filed motions for summary judgment.

Innocent sellers. The court held that the consumer failed to establish that either Medical Depot or Lincare could be held liable for his injury. Under the Texas Products Liability Act (TPLA), an "innocent seller" is a nonmanufacturing seller of a product who is not held liable for harm caused to a consumer by a sold product, unless the consumer can prove one of seven exceptions. Medical Depot argued that it did not manufacture the wheelchair in question and pointed to a lack of proffered evidence that Medical Depot designed, manufactured, altered, or made any representations concerning the product’s safety. The consumer failed to produce sufficient evidence to prove any of the seven exceptions. As such, Medical Depot was found to be an innocent seller and was granted summary judgment.

Lincare, too, argued that it was an innocent seller and could not be held liable. The consumer failed to produce sufficient evidence to prove any of the seven exceptions. Specifically, the consumer argued that Lincare was not an "innocent seller" because Lincare represented to him that the wheelchair had an upper weight limit of 300 pounds. The consumer argued that this amounted to "substantial control" over the content of a warning as to the strength of the wheelchair’s armrest, which the consumer alleged was inadequate. But Lincare presented testimony that the instructions provided with the wheelchair were drafted by the original manufacturer and not Lincare. Lincare also produced the "Manual Wheelchair Orientation Checklist" signed by the consumer; this document explained the manufacturer’s warnings, explained the parts of the wheelchair, and explained that maintenance of the wheelchair was the consumer’s sole responsibility. Significantly, Lincare pointed to admissions by the consumer that he ignored all provided instructions and did not read any of the paperwork he had signed. Because the consumer could not establish any of the seven exceptions to the "innocent seller" protection, the court granted summary judgment to Lincare.

Expert testimony. The court articulated that the consumer’s failure to provide expert testimony entitled both Medical Depot and Lincare to summary judgment. Under Texas law, expert testimony is required to prevail on most products liability claims. The court noted that the Supreme Court of Texas consistently requires expert testimony and objective proof when the core issue is outside a typical juror’s understanding. Non-expert testimony can support a finding of liability only when the product is not complicated and when the implications of its design can be easily understood by a jury. But when the product is complicated, such as with a wheelchair or other medical device, expert testimony is required, and lay testimony is insufficient. Furthermore, under Texas law, the mere fact of an injury is insufficient to prove a design or manufacturing defect. Here, the court found that expert testimony was required due to the complexity of wheelchair manufacture and design. Critically, the court pointed to statements by the consumer and his counsel which indicated a lack of understanding as to the alleged wheelchair defect. Instead, the consumer only made conclusory representations and speculations as to how "flimsy" the wheelchair felt. Because the consumer failed to identify any expert witnesses or otherwise produce supplementary evidence that the court could consider, the court granted summary judgment to both Medical Depot and Lincare.

The case is No. 7:18-CV-340.

Attorneys: Paul A. Higdon (Higdon Lawyers) for Raymond Martinez. Mary Jane Eaton (Willkie Farr & Gallagher LLP) for Medical Depot, Inc. d/b/a Drive DeVilbiss Healthcare. Mary Cazes Greene (Phelps Dunbar LLP) for Lincare, Inc.

Companies: Medical Depot, Inc. d/b/a Drive DeVilbiss Healthcare; Lincare, Inc.

MainStory: TopStory SCLIssuesNews ExpertEvidenceNews MedicalDevicesNews TexasNews

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