Scott Sarason and Jens Ruiz obtained a defense verdict on behalf of Louisville Ladder, Inc. on February 27, 2020 in a product liability case in the United States District Court for the Southern District of Florida – West Palm Beach Division where the Plaintiff was seeking $1.9 million in damages.

The plaintiffs, Jerry Zaslow and Diane Paganuzzi-Zaslow, were represented by the Rosalyn Sia Baker-Barnes and Jordan Dulcie of the Searcy Denney law firm in West Palm Beach. Mr. Zaslow claimed that he fell as he was climbing down a wooden attic ladder installed in his home. The plaintiffs claimed that the subject attic ladder had a design defect and failed to adequately warn Mr. Zaslow about use of the ladder. As a result of the fall, Mr. Zaslow sustained a concussion, a compression fracture of L2 and bilateral sacral fractures. Mr. Zaslow’s physicians diagnosed him with a traumatic brain injury and post-traumatic Parkinson’s disease. The plaintiffs retained a physical pain physician and economist who opined that his past and future medical care exceeded $1 million. The plaintiffs’ counsel argued that the subject attic ladder was defective, and failed to properly warn users about its potential risks. They also claimed that the attic ladder was unreasonably dangerous in design because the attic ladder’s handrail, one of several grip points, did not extend the full length of the ladder.

Louisville Ladder denied all of the plaintiffs’ allegations. Louisville Ladder argued that the handrail was not the cause of Mr. Zaslow’s fall, and the ladder’s warnings and instructions were adequate, but Mr. Zaslow failed to follow them. The defense successfully argued that Mr. Zaslow had used the subject attic ladder on multiple occasions prior to the accident, he knew where the handrail was prior to the accident, and given his position on the attic ladder prior to the fall, he had sufficient handrail, along with other grip points, available to use. The difference in Mr. Zaslow’s use of the attic ladder on the date of the accident as opposed to prior uses was that he was bringing down a suitcase from the attic, which for him, required the help of a second person.

Scott M. Sarason and Jens C. Ruiz of Rumberger, Kirk & Caldwell won a defense verdict on behalf of Louisville Ladder, Inc. on April 24, 2018, in a product liability case in the United States District Court for the Southern District of Florida – Miami Division. The claims against Louisville Ladder related to the design of a 16’ extension ladder. In October 2015, Plaintiff Jorge Morejon fell as he was transporting from the roof of a residence he was working on to a 16’ extension ladder manufactured by Louisville Ladder. The subject ladder was gifted to Mr. Morejon six years earlier and was used by him numerous times prior to the date of incident. The fall resulted in Mr. Morejon sustaining fractures to his right hip, lower vertebrae and ribs. He underwent open reduction internal fixation surgery (screws and pelvic reconstruction plate) to repair his right hip. Mr. Morejon’s doctor opined that he would need a total hip replacement in the future due to his hip injury. Plaintiff’s medical bills amounted to approximately $300,000.

Mr. Morejon filed suit alleging that Louisville Ladder failed to adequately warn Mr. Morejon on the proper use of the 2007 16’ extension ladder. He also alleged that the ladder was defective and unreasonably dangerous in its design because the user needed to move their center of gravity outside of the ladder’s siderails in order to mount or dismount the ladder at elevation. Plaintiff asserted that the ladder should have a “walk-through” device at the top so that a user could maintain their center of gravity between the rails. Plaintiff also asserted the ladder did not comply with the applicable ANSI standards. At the close of Plaintiff’s case, Mr. Morejon asked the jury to return a $3.1 Million award in his favor.

Louisville Ladder denied Mr. Morejon’s allegations. Prior to trial, Louisville Ladder moved for partial summary judgment on Plaintiff’s failure to warn claim, which was granted by the Court. The basis for the summary judgment was that the warnings and instructions were adequate, and Plaintiff read the ladder’s warnings and instructions, but did not rely on them to use the ladder. Louisville Ladder also moved to exclude Plaintiff’s liability expert’s opinions under Daubert, which was granted in part by the Court. In granting Louisville Ladder’s Daubert motion, the Court prohibited Plaintiff’s liability expert from opining as to the adequacy of the ladder’s warning and instructions and opining about an alternative “walk-through” design for the subject ladder.

At trial, Louisville Ladder presented evidence that the subject extension ladder was neither defective nor unreasonably dangerous in design. The ladder complied with all ANSI standards and governmental regulations. The ladder was not and had not been subject to a recall. Mr. Morejon had used the ladder on numerous occasions prior to the incident without issue. There were no other claims or incidents involving the subject ladder similar to Mr. Morejon’s claim. The evidence showed that Plaintiff’s incident was the result of Mr. Morejon’s failure to ensure that the ladder was secure prior to using it or the result of his loss of balance.

The case went to the jury, and the jury returned a complete defense verdict in 18 minutes.

The plaintiff sued BRP and her former father-in-law after she fell from a raft while boating. The defendants sought summary judgment because the plaintiff did not file her claim within the three-year limitations period applicable under maritime law. The plaintiff conceded maritime law applied, but sought to avoid the running of the statute based on equitable tolling. She specifically claimed that her domineering and controlling ex-husband prevented her from learning about her claims based on his desire to protect his father (the driver of the boat).

The trial court rejected this argument and granted summary judgment in favor of all defendants. The First District Court of Appeal affirmed. As to BRP, this was significant as to the Plaintiff’s product liability claims because BRP never communicated with the plaintiff at any point before her lawsuit. The “alleged ignorance of [the plaintiff’s] legal rights could not act to delay accrual of the statute of limitations.”

Scott Sarason of the Miami office, recently obtained a defense verdict in favor of their client BRP U.S., Inc. in a product liability lawsuit in Jacksonville, Duval County, Florida, after a week long jury trial.

The lawsuit, styled Carmon Sullivan v. BRP U.S., Inc., Case No. 2013-CA-000569, involved Plaintiff’s allegations of strict liability design defect, negligent design, and failure to warn.  BRP’s counsel successfully had Plaintiff’s consortium claim dismissed, pursuant to maritime law’s prohibition, and Plaintiff’s warranty claims dismissed pursuant to Florida’s privity requirements. This effectively streamlined the litigation from the outset.  Prior to trial, Plaintiff moved for leave to plead punitive damages, which BRP’s counsel opposed at an evidentiary hearing and the trial court denied.

On the date of the accident, January 26, 2012, Plaintiff (a 37 year old female) was performing maintenance in the engine compartment of a 2011 Sea Doo jetboat while it was suspended on a lift in the Plaintiff’s backyard.  Instead of closing the engine hatch from the cockpit area, which is the only place a user can open the hatch, the Plaintiff climbed onto the gunnel of the jetboat, jumped onto the dock, and then re-boarded the jetboat from the rear swim platform.  Once on the rear platform, the Plaintiff positioned her foot in an open, obvious, and clearly observable semicircular opening underneath the open engine hatch.  Without looking down first to see where her foot was, Plaintiff pushed the engine hatch closed on her own foot. Plaintiff’s foot was stuck for approximately 30 minutes before someone finally came to her assistance and opened the engine hatch to release her foot.

Three of Plaintiff’s toes were amputated.  Plaintiff was diagnosed with neuropathic pain, reflex sympathetic dystrophy, chronic pain syndrome, and an altered gait as well as constant back, hip, knee, leg and foot pain. Plaintiff underwent two surgeries for implantation of a spinal cord stimulator to address her pain symptoms.  Plaintiff’s life care plan costs were in excess of one million dollars.

At trial, Plaintiff contended that BRP knew of the foreseeable risk of severe injury with the unreasonably dangerous and defective design of the engine hatch cover and semicircular opening but did nothing.  Plaintiff argued that BRP failed to warn of the foreseeable risk of injury and did not include any information, warnings, or instructions on the jetboat itself, the owner’s manual, or the safety video.  Plaintiff maintained that BRP’s negligence and/or the defect with regard to the jetboat were the cause of Plaintiff’s injuries and sought millions of dollars for disfigurement, mental anguish, pain and suffering, past medical expenses, and noteworthy future medical care needs.

BRP contended that the 2011 Sea Doo jetboat was not defective, unreasonably dangerous, or responsible for this entirely avoidable accident.  BRP explained the evaluation, development, and hundreds of hours of testing that went into designing the jetboat and all its parts.  BRP also emphasized that not a single other person had ever been injured while using the identical engine hatch design on other Sea Doo jetboat models. Despite Plaintiff’s attempts to exclude such evidence, BRP’s counsel successfully argued for the admissibility, relevance, and probative value pertaining to the lack of other accidents.

BRP maintained that because the semicircular opening underneath the engine hatch was so open, obvious, and clearly observable, there was no duty to warn.  BRP informed the jury that Plaintiff had opened and closed the same engine hatch on the jetboat at least 50 times in the 10 month period prior to the date of the accident without any injury.  BRP had Plaintiff concede that she had seen the open and obvious semicircular opening prior to the DOA.  As such, BRP argued that Plaintiff was solely responsible for her own injuries.   BRP further argued that in the three and a half years since the date of the accident, Plaintiff continued to regularly use the jetboat (including opening and closing the very same engine hatch cover without any changes or modifications) without any accident or injury.

The jury returned a verdict finding no negligence on the part of BRP and no defect with the 2011 Sea Doo jetboat. The Plaintiff will not appeal the jury verdict.

U.S. Court of Appeals for the Eleventh Circuit Affirms Granting of Summary Judgment in Favor of Manufacturer on Appeal

Scott M. Sarason of RumbergerKirk’s Miami office, obtained an opinion from the U.S. Court of Appeals for the Eleventh Circuit affirming U.S. District Court (Southern District of Florida) Judge Cecilia Altonaga’s grant of summary judgment regarding Plaintiffs’ warnings claims in favor of their client Louisville Ladder, Inc. See Leoncio v. Louisville Ladder, Inc., 601 F. App’x 932 (11th Cir. May 6, 2015)(per curiam affirmed).

By way of background, on the day of the accident, Plaintiff, an accountant, was using a 20 foot fiberglass extension ladder to remove Christmas lights when he fell and sustained an open elbow dislocation, torn rotator cuff, and bicep tear. Plaintiff and his wife brought claims against the manufacturer sounding in strict liability and negligence. Plaintiffs claimed damages for past and future medical expenses, past and future pain and suffering, loss of consortium, and loss of past and future earnings. Plaintiffs’ pretrial demand exceeded $550,000.

The crux of Plaintiffs’ claim was for failure to warn foreseeable users of the fiberglass extension ladder regarding proper orientation and set up. Ralph L. Barnett’s (Plaintiffs’ sole liability expert) only opinion regarding a defect concerned the warnings as to orientation and set up. The ladder is designed, tested, and manufactured to be used in a fly-over-base orientation. The on-product label contains safety instructions and warnings on how to properly set up the ladder to avoid severe injury or death, including a pictogram depicting the ladder in the proper fly-over-base orientation. Contrary to the warnings and the manufacturer’s intended use, Plaintiff improperly set up the ladder in a base-over-fly orientation. At his deposition, Plaintiff clearly, unambiguously, and unequivocally testified that he saw the on-product warning labels, knew them to be warnings, but chose not to read them.

Defense counsel argued Plaintiff’s failure to read the on-product warning label negated the element of causation as a matter of law. Plaintiff’s deposition testimony precluded any argument regarding prominence or conspicuity. In opposing summary judgment, Plaintiff filed an affidavit stating he had in fact read the warnings, which plainly contradicted his clear deposition testimony and failed to provide any explanation for the wholesale revision of his testimony. Defense counsel successfully argued the affidavit was a last-minute sham created for the sole purpose of defeating summary judgment. Despite Plaintiffs’ continuous efforts, defense counsel convinced the trial court that there is no heeding presumption under Florida product liability law.

Plaintiffs unsuccessfully moved for reconsideration of the trial court’s order. The Plaintiffs appealed. In its per curiam opinion affirming the district court’s decision, the Eleventh Circuit held, “Mr. Leoncio’s deposition testimony unambiguously established that he had never read the warning labels on the ladder. His self-serving, contradictory affidavit filed after Louisville Ladder moved for summary judgment was insufficient to create an issue of material fact. Florida law is clear that Mr. Leoncio’s failure to read the warning cuts off Louisville Ladder’s liability based on the alleged inadequacy of the warning.” Id. at 933.

599 So. 2d 717 (Fla. 3d DCA 1992)

731 So. 2d 2 (Fla. 3d DCA 1999)

2007 U.S. Dist. LEXIS 48953 (S.D. Fla. June 23, 2007)

546 So. 2d 129 (Fla. 4th DCA 1989)

2005 U.S. App. LEXIS 7205 (11th Cir. 2005)

714 So. 2d 1120 (Fla. 3d DCA 1998)

655 So. 2d 176 (Fla. 3d DCA 1995)

691 So. 2d 629 (Fla. 5th DCA 1997)