Answers To Your Frequently Asked Questions
1. Does Rhode Island Follow The Consumer Expectation Test, The Reasonable Alternative Design Test Or Some Other Standard In Products Liability And Toxic Tort Cases?
The Rhode Island Supreme Court has adopted the consumer expectation test. Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775, 781 (1988). However, it has more recently adopted Section 5 of the Restatement (Third) of Torts: Products Liability, in Buonnano v. Colmar Belting Co., 733 A.2d 712 (R.I. 1999) and discussed with approval Section 2 of the Restatement which sets forth the reasonable alternative design standard. The court has also noted Section 18 of the Restatement. Ruzzo v. LaRose Enterprises, 748 A.2d 261, 266 n.6 (R.I. 2000). Just before deciding Castrignano, the court reversed a trial court’s failure to grant a directed verdict, commenting, inter alia, that plaintiff had failed to show any evidence of a reasonable alternative design that would have made the product safer. Jackson v. Corning Glass Works, 538 A.2d 666, 669 (R.I. 1988). Thus, there is every reason to believe that the court would adopt the reasonable alternative design standard of Section 2.
2. What Are The Other Potential Claims In Products Liability Cases?
The other common claims under Rhode Island law are defective manufacture, failure to warn and breach of warranty. Failure to warn is a negligence-based claim. A manufacturer only has to warn of those dangers, which are reasonably foreseeable and knowable at the time of marketing. Castiganano, supra. However, the manufacturer is held to an expert standard of care, including a duty to monitor new developments and research. Id. Breach of warranty claims for personal injuries are essentially identical to tort-based claims except for plaintiff’s obligation to provide seasonable notice.
3. Does Rhode Island Allow Market Share Liability?
In a per curiam decision the Rhode Island Supreme Court rejected the application of market share liability in a DES case. Gorman v. Abbott Laboratories, 599 A.2d 1364 (R.I. 1991).
4. What Is The Statute Of Limitations For Personal Injury In Rhode Island?
The statute of limitations for all personal injury claims is three years after the cause of action accrues. R.I.G.L §9-1-14(b). This includes breach of warranty claims. See, Nappi v. John Deere & Co., 717 A.2d 650, 651 (R.I. 1998); Castrignano, supra. With respect to IUD claims, the Rhode Island Supreme Court has adopted a very liberal “discovery” rule. Anthony v. Abbott Laboratories, 490 A.2d 43, 46 (R.I. 1985). However, in other products liability cases, our courts have said the statute begins to run when the plaintiff discovers, or in the exercise of reasonable diligence should discover, that he or she has sustained an injury. See, e.g., Naples v. AcerAmerican Corp., 970 F.Supp. 89 (D.R.I. 1997); Renaud v. Sigma-Aldrich Corp., 662 A.2d 711, 714 (R.I. 1995).
5. What Other Defenses Are Available Under Rhode Island Law?
Rhode Island has 10-year statutes of repose for improvements to real estate, R.I.G.L. §9-1-29; Qualitex Inc. v. Coventry Realty Corp. 557 A.2d 850 (R.I. 1989); and for breach of warranty, R.I.G.L. §6A-2-725; as well as a statutory defense based on the post-sale alteration of the product, R.I.G.L. §9-1-32. Rhode Island is a “pure” comparative negligence state, R.I.G.L. §9-20-4. Plaintiff’s negligence and his or her assumption of the risk are available defenses. Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir. 1994); Lariviere v. Dayton Safety Ladder Co., 525 A.2d 892 (R.I. 1987). There are several other significant defenses, as well.
6. What Common Defenses May Not Be Available In Rhode Island?
Rhode Island has not addressed whether it will adopt some of the defenses available in other jurisdictions, such as “state-of-the-art,” “sealed container” or “informed intermediary,” though a few cases provide some indication of how the Supreme Court might decide those issues.
7. Does Rhode Island Have Joint And Several Liability?
Yes. Rhode Island has joint and several liability among joint tortfeasors. R.I.G.L. §10-6-2. It also has provided statutorily for contribution among joint tortfeasors. R.I.G.L. §10-6-1, et seq.
8. Expert Testimony Is Often Critical In These Kinds Of Cases. What Is The Standard For Admission Of Expert Testimony In Rhode Island?
Rhode Island is at least nominally a Frye jurisdiction. See, State v. Dery, 545 A.2d 1014 (R.I. 1988). However, its version of the “general acceptance” test seems to incorporate many Daubert-like factors. See, e.g., State v. Wheeler, 496 A.2d 1382 (R.I. 1985). In addition, the Supreme Court has discussed Daubert at length, and with great approval without explicitly adopting it. DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999). Litigants could reasonably anticipate the Court would adopt Daubert if the appropriate case came before it.
9. How Are The Jury Awards In Rhode Island?
Since at least the mid-1990s, local jury verdicts in personal injury cases have usually been relatively conservative. The exceptions have been notable. There are no statutory limitations on personal injury awards. There is a minimum recovery of $150,000 in wrongful death cases. R.I.G.L §10-7-2.
10. What Is The Standard For Punitive Damages In Rhode Island?
Punitive damages are generally very difficult to get in Rhode Island. A plaintiff must show the defendant acted with “malice, wantonness or willfulness of such an extreme nature as to amount to criminality which for the good of society as a warning to the defendant ought to be punished.” T&S Service Associates, Inc. v. Crenson, 505 F.Supp. 938, 945 (D.R.I. 1981), vacated, 666 F.2d 722, 728 (1st Cir. 1981); Morin v. Aetna Casualty & Surety Co., 478 A.2d 968, 967 (R.I. 1984). In the only locally reported decision on punitive damages, the First Circuit summarily affirmed the district court’s dismissal of plaintiff’s punitive damages claims. LaPlante v. American Honda Motor Co., 27 F.3d 731, 745 (1st Cir. 1994). There is no local statutory or case law cap on punitive damages, however, the trial court may set aside an award if it is excessive or represents passion and prejudice. DeLeo v. Anthony A. Nunes, Inc., 546 A.2d 1344, 1348 (R.I. 1988). The trial court’s denial of punitive damages is not appealable. Dias v. Vierra, 572 A.2d 877, 879 (R.I. 1990).
11. How Soon Will A Case Come Up For A Trial?
In state court, cases do not go to trial until they have been assigned by motion to the trial calendar. Providence County has a history of reaching for trial within 18 months of being assigned to the trial calendar. The other counties vary much more because the trial calendars and judicial assignments there are much smaller and trial backlogs can depend on many other, less predictable factors.
In federal court, the judges will generally allow between 6 and 9 months for discovery with cases scheduled for trial about 2-4 months after the close of discovery.
12. Should We Remove Our Case To Federal Court?
Rhode Island has excellent, lifetime-appointed judges in federal and state courts. There are two significant differences between the two jurisdictions. The state courts admit evidence of subsequent remedial measures to show antecedent negligence. Super.R.Evidence 407. Our federal courts have held that evidence of subsequent design changes can be excluded in products liability cases. Bogosian v. Mercedes-Benz of North America, Inc., 104 F.3d 472, 481 (1st Cir.1997); Raymond v. Raymond Corp., 938 F.2d 1518, 1523 (1st Cir. 1991). Thus, a design, manufacturing or warning change, for any reason, can be admissible in Superior Court to support plaintiff’s claim the product was defective at the time of his or her injury.
Also, in state court, a case is normally not assigned to a specific judge until it comes up for trial. (The Presiding Justice of the Superior Court may specially assign a case to a judge upon motion.) Accordingly, there is often little opportunity to educate the trial judge before the trial. If either of these circumstances presents a difficulty in a case, a defendant should consider removing it to federal court, assuming there is federal jurisdiction.
For answers to more of your products liability and toxic tort law questions, reach out to Strauss, Factor, Laing & Lyons. Call 401-400-4416 or send us a contact email.