Lewis Brisbois Team Prevails in Ninth Circuit

Phoenix Managing Partner Carl F. Mariano, Phoenix Partner Robert C. Ashley, and Appellate Practice Chair Jeffry A. Miller recently prevailed in the appeal of a product liability verdict to the U.S. Court of Appeals for the Ninth Circuit.

After ingesting beads from a toy developed by our client, the plaintiffs’ 16-month-old son experienced dizziness, vomiting, and unconsciousness for several hours. Four months later, the toy was recalled when it was learned that the factory in China that was contracted to manufacture the beads had made an unauthorized substitution of ingredients.

The plaintiffs sued in Arizona federal court claiming that their son had experienced a permanent brain injury and seeking a global demand for $20 million. Prior to trial, the court excluded the plaintiffs’ toxicological expert’s opinions that the beads could cause a brain injury. The court also dismissed the request for punitive damages and applied judicial estoppel to dismiss derivative claims that had not been reported in the plaintiffs’ contemporaneous bankruptcy.

The case proceeded to trial with damages limited to the initial hospitalization. The jury rendered a verdict of $450,000, with 58 percent of the fault apportioned to our client.

On appeal, the Ninth Circuit affirmed all challenged rulings. Because the defendants had no knowledge of the ingredient substitution, they did not act with the “evil mind” required under Arizona law to justify punitive damages. The plaintiffs’ allegations that better testing methods could have been used amounted, at most, to negligence.

The Ninth Circuit also found that the trial court properly exercised its discretion to apply judicial estoppel to protect the integrity of the bankruptcy system. Finally, the Ninth Circuit held that the trial court properly excluded the toxicologist’s opinions. The expert’s first theory of causation was unreliable because he had unambiguously disavowed it at his deposition, and his second theory was untimely because it was disclosed for the first time at that same deposition.

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