98-2162 Green v. Smith & Nephew, AHP

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“In Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis.2d 326(1975), this court adopted Comment g to sec. 402A, which provides that a product is defective ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him [or her]. … ). Similarly, in the same case, this court adopted Comment i to sec. 402A, which provides in pertinent part that a defective product is unreasonably dangerous where it is ‘dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’…). These Comments provide that although defect and unreasonable danger are distinct elements to a claim in strict products liability, both elements are based on consumer expectations. …

“In sum, the Sumnicht [v. Toyota Motor Sales, USA, Inc., 121 Wis.2d 338 (1984)] factors must be understood and applied in light of the consumer-contemplation test. Instead of abrogating or redefining Wisconsin’s products liability standard, Sumnicht reiterated this state’s devotion to the consumer-contemplation test: Wisconsin strict products liability law applies the consumer-contemplation test and only the consumer-contemplation test in all strict products liability cases.”

In addition, we find no error in the circuit court’s instruction to the jury that a product can be deemed defective and unreasonably dangerous regardless of whether the manufacturer of that product knew or could have known of the risk of harm the product presented to consumers.

Although forseeability is an element of negligence, strict products liability, by contrast, focuses on the nature of the defendant’s product, not on the defendant’s conduct.

“For this reason and the reasons set forth above, we reemphasize the long-standing rule that foreseeability of the risk of harm plays no role in current Wisconsin products liability law. Accordingly, we hold that current Wisconsin law does not support S&N’s contention that the circuit court erred in instructing the jury that it could find S&N’s gloves to be defective and unreasonably dangerous regardless of whether S&N knew or could have known of the risk of harm its latex gloves presented to consumers.”

“[W]e conclude that in order to prove that an allergy-causing product is unreasonably dangerous, a plaintiff must prove the following elements: (1) the product contains an ingredient that can cause allergic reactions in a substantial number of consumers; and (2) the ordinary consumer does not know that the ingredient can cause allergic reactions in a substantial number of consumers. Upon the plaintiff making this showing, the burden then shifts to the manufacturer to prove that the product includes a warning or directions that effectively alert the ordinary consumer that the ingredient can cause allergic reactions in a substantial number of consumers; if the manufacturer fails to meet this burden, a trier of fact can properly conclude that the product is unreasonably dangerous. …

“In sum, we hold that a product can be deemed defective and unreasonably dangerous where that product contains a substance which, unbeknownst to the ordinary consumer, can cause an allergic reaction in 5 to 17 percent of its consumers. Moreover, we conclude that because the evidence introduced at trial in the present case indicated that, unbeknownst to the ordinary consumer, the latex proteins in S&N’s gloves could cause allergic reactions in 5 to 17 percent of the gloves’ users, and because S&N failed to show that their gloves included adequate warnings or instructions regarding this potential danger, there was sufficient evidence for the jury to find that S&N’s gloves were defective and unreasonably dangerous. …

“Finally, while we agree with S&N that the circuit court’s admission of Cacioli’s [expert]opinions [concerning the relative safety of low-protein as opposed to high-protein gloves] was in error, we do not agree with S&N that this error necessitates a new trial. Due to the substantial amount of evidence that mirrored Cacioli’s opinions and because the jury was informed that Cacioli did not consider himself qualified to provide such opinions, we determine that the circuit court’s error was harmless.

Affirmed.

CONCURRING OPINION: Abrahamson, Ch.J., with whom Bradley, J., joins in Part I. “I join all but Part IV of the majority opinion. I do not join Part IV because I do not agree with what the opinion identifies as the evidentiary error in the present case. The opinion concludes that the circuit court erroneously exercised its discretion in finding Dr. Cacioli qualified to give expert testimony regarding glove safety.

CONCURRING OPINION: Crooks, J., with whom Wilcox, J., joins. “I agree with the majority’s decision today and write separately only to remark upon the harmless error test utilized by the majority…. That Wisconsin courts have often used ‘reasonable possibility’ rather than ‘reasonable probability’ should not dissuade the court from correcting such missteps today.”

DISSENTING OPINION: Sykes, J., with whom Prosser, J., joins. “I respectfully dissent. The majority opinion is seriously out of step with product liability law as it has evolved since this court adopted the Restatement (Second) of Torts sec. 402A in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). The majority blurs the distinctions between design, manufacturing, and failure-to-warn product defects. The majority also keeps Wisconsin in the much-criticized and rapidly dwindling minority of jurisdictions that rely exclusively on a consumer contemplation test to determine liability in design defect cases. And finally, the majority opinion’s language about the role of foreseeability in product liability law is misleading and overbroad.”

Court of Appeals, Wilcox, J.

Attorneys:

For Appellant: Joseph D. Kearney, Milwaukee; Donald R. Peterson, Sherry A. Knutson, Milwaukee; Thomas W. Merrill, Constantine L. Trela Jr., Hille R. Sheppard, Robert N. Hochman, Chicago, Ill.

For Respondent: Robert L. Habush, Mary S. Young, Virginia M. Antoine, Milwaukee