W.D. Va.: Supreme Court of Virginia Would Recognize Post-Sale Duty to Warn

Last week, in a published opinion, Chief Judge Jones (W.D. Va.) held that the Supreme Court of Virginia would recognize a post-sale duty to warn in Rash v. Stryker Corp., et al.

In Rash, the plaintiff alleged that he suffered injuries as a result of the use of a "pain pump" (an "ambulatory drug delivery system") manufactured, designed, and sold by the defendants. One of the plaintiff's claims alleged that the pump was defective due to "inadequate post-market warnings." The defendants filed a motion to dismiss under FRCP 12(b)(6), arguing that Virginia has never recognized a cause of action based on a post-sale duty to warn.

In denying the defendants' motion to dismiss for the post-sale duty to warn claim, the court concluded as follows:

Although both the Fourth Circuit and district courts in Virginia have considered whether a post-sale duty to warn exists under Virginia law, the Supreme Court of Virginia has not yet considered the issue. See Hart v. Savage, No. L-04-1663, 2006 WL 3021110, at *2 (Va. Cir. Ct. Oct. 19, 2006). Accordingly, I must predict how the Supreme Court of Virginia would answer that question. See St. Paul Fire & Marine Ins. Co. v. Am. Int’l Specialty Lines Ins. Co., 365 F.3d 263, 272 (4th Cir. 2004). To do so, I may consider “canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state’s highest court, well considered dicta, and the state’s trial court decisions.” Wells v. Liddy, 186 F.3d 505, 528 (4th Cir. 1999). The general trend among other states is also relevant. See St. Paul Fire & Marine Ins. Co., 365 F.3d at 272.

Considering these factors, I find that the Supreme Court of Virginia would allow a cause of action based on a negligent breach of a post-sale duty to warn to proceed. The Restatement (Third) of Torts: Products Liability § 10 (1998), the view of other states, and dicta from the Fourth Circuit’s opinion in Bly v. Otis Elevator Co., 713 F.2d 1040 (4th Cir. 1983), support this determination.

Recent Fourth Circuit Opinions

Here are recent Fourth Circuit opinions that have implications for civil practice in Virginia:

- Dennison v. Carolina Payday Loans, Inc. and Johnson v. Advance America

In related cases, the Fourth Circuit addressed the minimal diversity requirement under 28 U.S.C. § 1332(d)(2)(A) in two consumer class actions against the payday loan industry. Judge Agee, the court's newest member, concurred in part, dissented in part, and concurred in the judgment in both cases.

- Palisades Collections LLC v. Shorts et al.

This case presents an issue of first impression — whether a party joined as a defendant to a counterclaim (the "additional counter-defendant") may remove the case to federal court solely because the counterclaim satisfies the jurisdictional requirements of the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. 109-2, 119 Stat. 4 (codified in scattered sections of Title 28 of the United States Code). We hold that neither 28 U.S.C.A. § 1441(a) (West 2006) nor 28 U.S.C.A § 1453(b) (West 2006 & Supp. 2008) permits removal by such a party.

- Cozzarelli v. Inspired Pharms. Inc., et al.

This case involves claims that a pharmaceutical company and three of its directors violated federal securities laws. Plaintiffs’ primary allegation is that Inspire Pharmaceuticals, Inc. committed securities fraud by overstating the prospects for an experimental drug that the company was developing to treat dry eye disease. When we apply the careful scrutiny required by Congress in the Private Securities Litigation Reform Act of 1995 and by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007), we conclude that plaintiffs’ allegations are lacking. In particular, plaintiffs fail to raise the "strong inference" of wrongful intent that is necessary to support their securities fraud claims. We thus affirm the district court’s dismissal of the complaint.

Supreme Court Decides Tobacco Preemption Case

Plaintiffs in "light" cigarette litigation got an early Christmas present yesterday. In a 5-4 decision, the Supreme Court decided in Altria Group, Inc. v. Good that the Federal Cigarette Labeling and Advertising Act does not expressly or impliedly preempt state law claims (in this case, a claim under the Maine Unfair Trade Practices Act).

In Good, the plaintiffs were long-time smokers of “light” cigarettes manufactured by Philip Morris, which is a subsidiary of Altria Group, Inc. They brought claims under the MUTPA, alleging that the defendants used fraudulent advertising that conveyed the message that “light” cigarettes have less tar and nicotine. The district court granted summary judgment in favor of the defendants on the grounds that the plaintiffs’ claims were preempted by the FCLAA.

The majority opinion, written by Justice Stevens, held as follows:

We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt
state-law claims like respondents’ that are predicated on the duty not to
deceive. We also hold that the FTC’s various decisions with respect to
statements of tar and nicotine content do not impliedly pre-empt respondents’
claim. Respondents still must prove that petitioners’ use of “light” and
“lowered tar” descriptors in fact violated the state deceptive practices
statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s
actions in this field prevent a jury from considering that claim. . . .

Justice Thomas, joined by Chief Justice Roberts, Justice Scalia, and Justice Alito, dissented, concluding:

The Court today elects to convert the Cipollone plurality opinion
into binding law, notwithstanding its weakened doctrinal foundation, its
atextual construction of the statute, and the lower courts’ inability to apply
its methodology. The resulting confusion about the nature of a claim’s
“predicate duty” and inevitable disagreement in the lower courts as to what type
of representations are “material” and “misleading” will have the perverse effect
of increasing the nonuniformity of state regulation of cigarette advertising,
the exact problem that Congress intended § 5(b) to remedy. It may even force us
to yet again revisit the Court’s interpretation of the Labeling Act.
Because I believe that respondents’ claims are preempted under § 5(b) of
the Labeling Act, I respectfully dissent.

See here and here for more analysis of the Court's opinion.

Fourth Circuit Vacates and Remands Premises Liability Case

Last week, in an unpublished decision, the Fourth Circuit vacated and remanded a decision by Magistrate Judge Crigler (W.D. Va.) granting the defendant's motion for summary judgment in Strobel v. W.B.W. Enterprises, Inc. (the parties consented to a trial by the magistrate judge).

In Strobel, the plaintiff slipped and fell when she was exiting a farmer's market. She filed a negligence action based on premises liability against the company that managed the market alleging that she tripped over defective mats.

The Fourth Circuit analyzed the case as follows:

To prove negligence in a premises liability case, the plaintiff must first
prove the existence of an unsafe or dangerous condition on the premises.
Kendrick v. Vaz, Inc., 421 S.E.2d 447, 449 (Va. 1992). Mrs. Strobel
contends that the mats were defective because they had pre-existing distortions.
The Market contends that the record is devoid of evidence of the condition of
the floor mats immediately prior to Strobel’s fall. Assuming that the mats were
defective at the time of Strobel’s accident, she must also show that the defect
in the mats caused her to trip and fall. In Virginia, to prove a defendant’s
negligence, a plaintiff must prove “why and how the incident happened. . . . And
if the cause of the event is left to conjecture, guess, or random judgment, the
plaintiff cannot recover.” Town of West Point v. Evans, 299 S.E.2d 349, 351 (Va.
1983).

We conclude that there is a genuine issue of material fact as to whether
the mats were defective and whether they caused Mrs. Strobel’s fall. The
photograph of the mats shows that the edges of the mats, in some places, were
not flush with the floor and that there were ripples across the top of the mats.
Although the district court was concerned that it could not be categorically
determined which mat may have been involved, both mats were in a similar
condition. Further, the court seemed troubled that the mats may not have been in
the same condition as in the photograph as the day of the accident. A manager,
however, testified in deposition that after the accident the mats were rolled up
and placed in secure storage, and a shopkeeper testified that the mats were in
the same condition at the time of the accident as they were portrayed in the
photograph, which showed rippling of the mat.

The court also noted that testimony indicated that there were “problems” with the mats two days prior to the accident that were noticed by “several shopkeepers in the Market.” Accordingly, the court vacated the lower court’s ruling and remanded the case.