DAVID W. AYERS, ET AL, Appellants, v. JOHNSON & JOHNSON BABY PRODUCTS Co., Respondent.
No. 12915-9-II
Division Two
September 17, 1990
Reconsideration denied January 15, 1991.
116 Wn.2d 1028 (1991)
Review denied at 116 Wn.2d 1028 (1991).
We hold that the public duty doctrine is inapplicable to the facts of this case and, therefore, cannot be used to pre- vent liability in this situation. Appellants have failed to cite us to any case or other authority applying the public duty doctrine to a factual situation similar to the facts here. Further, at trial, the appellants did not submit any pro- posed instructions regarding the public duty doctrine and on appeal have failed to assign error to any instructions given. Accordingly, we do not accept appellants’ claim that the public duty doctrine prohibits liability under the facts of this case.
We affirm.
The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.
GROSSE, A.C.J., and WINSOR, J., concur.
Reconsideration denied January 15, 1991.
Review denied at 116 Wn.2d 1028 (1991).
William J. Leedom, Mary H. Spillane, and Williams, Kastner & Gibbs, for respondent.
WORSWICK, J.—Five-year-old David Ayers, by his guard- ian ad litem, and David‘s parents, Cheryl and Tom Ayers, appeal a judgment notwithstanding the verdict and an alternative order for a new trial in this products liability action. The jury awarded David $2 million and his parents $500,000 against Johnson & Johnson Baby Products Co. for permanent injuries David suffered when he drank Johnson & Johnson baby oil and then aspirated (inhaled) it into his lungs. We reverse and reinstate the verdict.
On the afternoon of April 23, 1985, David, then 15
months old, was playing in his family‘s home in Tacoma
with his twin brother, Luke. The babies were not unat-
tended; their father was home, their mother was preparing
to go to work, and two of their sisters were also in the
house. About a week earlier, one of David‘s sisters had
poured some Johnson & Johnson baby oil from its original
container into a smaller container to take to school for use
on her hands after gymnastics and, as he played, David
found it in her purse on the floor of her bedroom. Mrs.
Ayers saw David just as he lifted the container to his
mouth and began to drink the oil. She yelled at him to
stop, and David may have gasped in reaction. Mrs. Ayers
was relieved to learn that the liquid was baby oil because
she thought the only effect from drinking it would be diar-
rhea. She looked at the original bottle to verify her under-
standing. Finding no warning, she instructed the older
children to call her if any problems developed, and she
went to work.
Later that evening, David began to have difficulty breathing. The family took him to Mary Bridge Hospital where an X-ray showed oil in his lungs. He was hospital- ized in Tacoma and eventually sent to St. Louis to receive ECMO therapy, a special procedure that involves pumping the patient‘s blood outside his body and mechanically enriching it with oxygen. A side effect of this therapy caused cardiac arrest in David, and that led to brain dam- age. David cannot now move his arms or legs, cannot speak, suffers seizures, and is mentally retarded.
The Ayerses based this action on
The trial court granted Johnson & Johnson‘s motion for judgment n.o.v., holding that the evidence of causation was insufficient to sustain the verdict. The court also held that foreseeability was a necessary element of the claim, and that the evidence of this was insufficient also. Pursuant to
In reviewing the judgment n.o.v., we must assume the truth of all the Ayerses’ evidence and all reasonable inferences therefrom. Rasor v. Retail Credit Co., 87 Wn.2d 516, 533, 554 P.2d 1041 (1976). The evidence must be con- sidered in a light most favorable to the Ayerses. No discre- tion was vested in the trial court. Its ruling was proper only if, as a matter of law, there was no competent evidence, or reasonable inferences, to sustain the verdict. Rasor, 87 Wn.2d at 533-34. The verdict must, however, have been supported by substantial evidence. It cannot survive if founded on mere theory or speculation. Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980). This verdict passes these tests.
CAUSATION
The Ayerses’ burden on causation was to prove that,
had they been adequately warned of the risks, they would
have treated the product differently and avoided the harm.
A manufacturer is liable “if the claimant‘s harm was proxi-
mately caused by the negligence of the manufacturer in
that the product was not reasonably safe . . . because ade-
quate warnings . . . were not provided. . .“.
Family members testified that house rules required that
anything known to be dangerous be kept high out of reach
of the twin baby boys. Mrs. Ayers testified that she was a
label reader and that had she known of the risks of aspira-
tion, everyone else in the family would have known also.
Laurie Ayers, who left the purse containing the baby oil on
Mr. Ayers also testified that products known to be dan- gerous were kept up on a top shelf out of reach. He testified further that had the product carried a warning of the risks, they would not have had it in the house.
An appropriate inference from all this is that because the product was without a warning, the family members did not know it was dangerous and so did not treat it as such. The family members’ testimony shows that they did not know of the particular harm that could result from aspirating mineral oil. Their testimony raises the evidence above the “mere theory or speculation” cautioned against in Hojem v. Kelly, supra. Cf. Baughn v. Honda Motor Co., 107 Wn.2d 127, 144, 727 P.2d 655 (1986) (when the harm that could have been warned against (danger of driving off-road trail bike on public roads) was already known to plaintiff and had in fact been warned against by him, to say he would not have bought bike had warnings been stronger is merely speculative).
Dr. Scherz testified that in his expert medical opinion baby oil should bear warnings about diarrhea and aspira- tion. Dr. Marvin Scotvold, chief of dermatology at Chil- dren‘s Orthopedic Hospital in Seattle, strongly expressed the opinion that a baby oil container should carry a warn- ing of the risks of aspiration.
Also, the Ayerses were not required to prove the
exact wording of an adequate warning. The statute speaks
only generally of “warnings . . . which the claimant alleges
would have been adequate.”
The family‘s and the experts’ testimony provided sufficient evidence to create a jury issue on causation. It follows that the evidence was sufficient to support the ver- dict; the standards are the same. Rasor, 87 Wn.2d at 533- 34; Hollingsworth v. Washington Mut. Sav. Bank, 37 Wn. App. 386, 389, 681 P.2d 845, review denied, 103 Wn.2d 1007 (1984).
FORESEEABILITY
Because
Although further discussion of the foreseeability issue is
not necessary, we believe that a step-by-step application of
the liability principles under
The analysis does not stop here, however; we next must consider whether the product was unsafe beyond the expectations of the ordinary consumer.6 Although a host of factors is considered in a design defect case (see Lenhardt v. Ford Motor Co., 102 Wn.2d 208, 683 P.2d 1097, 40 A.L.R.4th 609 (1984)), we believe that only two factors need be considered in a failure to warn case: (1) nature of the product, and (2) deficiency of the warning. Here, the product was composed of an oil that has the potential for great harm if it gets into the lungs, but is nevertheless pro- moted for use on and around babies. The warning was not merely deficient, it was nonexistent.
The product carried no warning at all as to risks of either ingestion or aspiration. The jury was entitled to find that this product was unsafe beyond the reasonable expectations of the consumer, and that all elements of a strict liability claim had been established.
NEW TRIAL ORDER
Having considered the affidavits of some jurors that the jury had not voted separately on the issues of liability and damages, the trial court granted Johnson & Johnson‘s
First, after the verdict was announced, the jury was polled in open court. Ten jurors announced that the verdict was theirs. If the validity of the verdict is attacked because of the voting methods used in the jury room, the poll of the jury in open court validates the verdict. Butler v. State, 34 Wn. App. 835, 663 P.2d 1390, review denied, 100 Wn.2d 1009 (1983).7
Next, the alleged misconduct is the type that inheres in the verdict; it cannot be used to impeach the verdict. Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651 (1962).
Here the jury was given a general verdict form, and another instruction told them to find each proposition, negligence, injury, and proximate cause. Its procedure for doing so inheres in the verdict. Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 160, 776 P.2d 676 (1989) (juror affida- vits may be relied on to establish misconduct but not to contest after the fact the thought processes involved in reaching a verdict). There was no juror misconduct in this case, and the jury‘s verdict was validated by the poll in open court.
Reversed and remanded with instructions to reinstate the verdict.
ALEXANDER, C.J., concurs.
REED, J. (dissenting)—I would affirm the trial court‘s judgment n.o.v. because, inter alia, I believe that, as a matter of law, a manufacturer has no duty to warn of a risk as unlikely as that involved here.
Beyond cavil, the risk in this case was exceedingly remote: from 1932 to the time of the accident in 1985, Johnson & Johnson had sold over 500 million bottles of
A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant‘s harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.
STATUTE‘S BALANCING TEST
The lack of a warning must be analyzed both in terms of
the balancing required by
While the majority pays lip service to the balancing test, it fails completely to consider likelihood when it states at page 295:
Although it may be unlikely that the product will cause harm of the gravity experienced here, nevertheless the seriousness of the risk is extremely great considering what mineral oil can do when aspirated.
(Italics mine.)
Having accepted the “unlikelihood” of aspiration, the
majority then purports to balance the seriousness of the
harm against the burden of providing an effective warning.
The majority states that the cost of printing and affixing a
label would be small, but would it? The warning would
have to be lengthy and complicated, warning the potential
user not only that there is a risk of harm, but that children
The unexamined premise that warnings are not costly in risk-utility balancing is, in our considered opinion, highly questionable. Warnings, in order to be effective, must be selec- tive. They must call the consumer‘s attention to a danger that has a real probability of occurring and whose impact will be significant. One must warn with discrimination since the con- sumer is being asked to discriminate and to react accordingly. . . . Those who argue for warning as the judicial solution to latent defect cases labor under a naive belief that one can warn against all significant risks. The truth is that such a marketing scheme is not feasible. The warning process, in order to have impact, will have to select carefully the items which are to become part of the consumer‘s mental apparatus while using the product. Making the consumer account mentally for trivia or guard against risks that are not likely to occur imposes a very real societal cost.
(Footnote omitted.) Twerski, Weinstein, Donaher, Piehler, The Use and Abuse of Warnings in Products Liability— Design Defect Litigation Comes of Age, 61 Cornell L. Rev. 514-15 (1976); see also Cotton v. Buckeye Gas Prods. Co., 840 F.2d 935, 938 (D.C. Cir. 1988).
We must, then, consider the possibility that individuals will overreact to a warning; that they will assume that the risk is much higher than truly it is; and that they will stop using a beneficial product because of a very remote risk. More importantly, we also must consider the possibility that consumers will pay less attention to all risks and all warnings because of the overload of information. In either event, the consuming public loses.
THE CONSUMER EXPECTATIONS TEST
The majority‘s analysis of consumer expectations also
ignores important considerations. The court should con-
sider the cost of the product, the seriousness of the poten-
tial harm, and the cost and feasibility of minimizing the
risk. “The nature of the product, or the nature of the
claimed defect may make other factors relevant to the
The majority, without explanation, chooses to discuss only the nature of the product and the nature of the defect and then concludes that the jury could have found that the product was not reasonably safe as judged by consumer expectations. The analysis is as follows:
Here, the product was composed of an oil that has the poten- tial for great harm if it gets into the lungs, but is nevertheless promoted for use on and around babies. The warning was not merely deficient, it was nonexistent.
(Italics mine.) Majority, at 296. But this begs the question
by assuming that a nonexistent warning is deficient. The
question is whether there was a need for any warning. To
answer the question, we ask if the product is “unsafe to an
extent beyond that which would be reasonably contem-
plated by the ordinary consumer.” Tabert, 86 Wn.2d at
154;
The ordinary consumer evaluates a product in terms of safety, recognizing that virtually no product is or can be made abso- lutely safe. . . . . . . It must be borne in mind that we are dealing with a relative, not an absolute concept.
Tabert, 86 Wn.2d at 154. Could a reasonable consumer believe that defendant‘s baby oil is not reasonably safe after weighing factors such as the gravity of the potential harm, the cost and feasibility of eliminating or minimizing the risk and the nature of the product? I would answer, “no“.
If one factors in the extreme unlikelihood of aspiration and the burdens of providing an effective warning, as dis- cussed above, the scales tip even farther against the rea- sonableness of requiring a warning here. Therefore, I would hold as a matter of law that the baby oil without the warn- ing was not unsafe beyond the reasonable expectations of the ordinary consumer.
Any other result is unfair because it punishes Johnson &
Johnson for having a deep pocket, not for producing a
product that presents an unreasonable risk of harm. Any
NEED FOR SPECIFIC WARNING
The majority also holds that the plaintiff need not offer
the exact wording of a warning. The rationale is that
because liability for failure to warn and for defective design
both are created by
However,
Without knowing the content of the alternative warning the trier of fact cannot balance the cost of providing this warning against the likelihood and severity of the danger. Understandably the Legislature has placed upon the plain- tiff the burden of proposing alternative warnings; this court should not shift that burden in the guise of judicial con- struction of the statute.8
If the question is framed in terms of duty, it may be put as follows: Was the likelihood of aspiration together with the gravity of the harm sufficient to impose a duty on the defendant to guard against that danger? See Berg v. Gen- eral Motors Corp., 87 Wn.2d 584, 592, 555 P.2d 818 (1976); see also Rose v. Nevitt, 56 Wn.2d 882, 885, 355 P.2d 776 (1960). I would hold that the risk of harm in this case was insufficient to impose a duty upon Johnson & Johnson.
If the question is framed in terms of legal causation, it may be phrased as follows: Assuming that the plaintiffs proved the necessary elements of strict liability, should this court, as a matter of policy, determine that liability should attach? See Hartley, 103 Wn.2d at 779. I would answer that, as a matter of policy, the failure to warn should not be considered the legal cause of the injury.
In this regard, I must say that the majority‘s “foresee- ability” discussion, pages 294-96, focusing on the product‘s “use on babies“, the description “pure and gentle“, and the “suggestions” that it “be used on baby‘s scalp, which, of course, is near both the mouth and nose” is a red herring— plain and simple. This tragedy did not happen because the product was being used in any of the ways intended or described. Rather, aspiration occurred because a teenaged sister broke house rules and (1) removed a tiny-apertured bottle from its safe place; (2) transferred the oil into a
In my view, and for all the reasons outlined above, I would affirm the trial judge‘s granting of judgment n.o.v.
Review granted at 116 Wn.2d 1001 (1991).
Notes
(1) A product manufacturer is subject to liability to a claimant if the claimant‘s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.
. . . .
(b) A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant‘s harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.
. . . .
(3) In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.
Opposing this sort of testimony, Drs. Richard Lemen and Barry Rumack testified for Johnson & Johnson that, in their opinions, mineral oil does not suppress the cough reflex or pose greater danger if aspirated than does any other liquid. Under the standard of review for judgment notwithstanding the verdict, however, we assume the truth of plaintiff‘s evidence.