JOANNE DIEHL vs. ICON HEALTH & FITNESS, INC
Jury Trial June 27, 2011
Stephen H. Smith; Aaron G. Capps

Stephen Smith and Aaron G. Capps obtained a defense verdict on behalf ICON Health & Fitness, Inc. in a product liability and breach of implied warranty action stemming from a fall on a treadmill.

On August 28, 2008, Plaintiff Joanne Diehl, a sixty year old professor at the University of California Davis, fell in her home while walking on a treadmill designed and manufactured by defendant ICON. Plaintiff claimed that the treadmill suddenly increased in speed and that her fall was the result of this unexpected acceleration. Plaintiff claimed that the acceleration was due to a defect in the design of the treadmill. Plaintiff sustained a comminuted left humeral head fracture requiring a left shoulder hemiarthroplasty with a biceps tenodesis procedure (partial joint replacement). Plaintiff has a permanent limitation of her left arm range of motion. At trial, Ms. Diehl requested $890,000 in damages.

Plaintiff filed a lawsuit alleging product liability, negligence and breach of implied warranty claims against ICON. Plaintiff could find no evidence of a failure in the treadmill, but claimed that the treadmill was susceptible to intermittent failure due to some type of defect in the treadmill's software. However, Plaintiff's attempt to compel disclosure of ICON's proprietary software was denied by the Court which found such software to be a trade secret and that Plaintiff had not made an adequate showing to warrant disclosure of that trade secret.

In defense, Mr. Smith and Mr. Capps contested liability contending that the acceleration did not happen based upon the absence of either any physical evidence of damage to the treadmill and its components or any scientifically sound explanation for the event. They also contended that Plaintiff's injuries were inconsistent with a fall from the treadmill accelerating. Specifically, an analysis of Plaintiff's injuries demonstrated that, if the treadmill had accelerated, plaintiff would have sustained a shoulder separation or dislocation, rather than the claimed shoulder fracture and that plaintiff would have sustained friction burn injuries from contact with the treadmill's belt.

Rather than a defect in the treadmill, Mr. Smith and Mr. Capps contended that plaintiff's fall was caused by a balance problem due to side effects from her prescribed medication. Plaintiff was diagnosed after the accident by her treating physicians as suffering from drug-induced Parkinsonism. The medical experts agreed that plaintiff suffered from drug-induced Parkinsonism, with plaintiff contending that the symptoms were minor and defendant contending that the symptoms were severe and caused the fall.

Prior to trial Mr. Smith and Mr. Capps were successful on a number of motions in limine, including the limitation of testimony of one of Ms. Diehl's proposed liability experts and, as a result, Plaintiff ultimately did not call that expert to testify at trial. In the face of a similar motion concerning Plaintiff's other liability expert, Plaintiff withdrew that expert as well.

The case was tried in Alameda County in Oakland before the Honorable Yvonne Gonzalez Rogers. The trial lasted for two weeks. During the pendency of the trial, Plaintiff dismissed her negligence cause of action.

After approximately an hour of deliberations, the jury returned a verdict in favor of ICON on the remaining causes of action for product liability and breach of implied warranty.

ALEX NOVAK vs. CONTINENTAL TIRE NORTH AMERICA, INC
Jury Trial May 10, 2011
Anthony F. Latiolait; Jeffrey J. Gordon

Anthony Latiolait and Jeffrey Gordon obtained a defense verdict on behalf of Continental Tire North America, Inc. (now known as Continental Tire the Americas, LLC) in a product liability and negligence action stemming from a single vehicle accident.

On September 12, 2005, a 1988 Chevrolet Van, driven by Milagros Ibarra, collided with a utility pole in the city of Fremont, California. The plaintiff, Alex Novak, age 81, was a passenger in the van at the time of the accident. Prior to the accident the van experienced a partial tread separation and blowout of the right rear tire. The right rear tire was manufactured by Continental in 1993.

Mr. Novak filed product liability and negligence claims against Continental. Plaintiff claimed that the twelve year old tire had failed due to "aging" and that Continental should have warned of alleged dangers associated tire aging. Plaintiff further claimed that the tire's failure was the cause of the van's loss of control and resulting collision.

As a result of the accident, Mr. Novak sustained multiple comminuted fractures to his femurs, broken ribs and a collapsed lung. He was hospitalized for six months following the accident and claimed that these injuries rendered wheelchair bound for the remainder of his life. At trial, Mr. Novak requested $1.9 million in damages.

Prior to trial Mr. Latiolait and Mr. Gordon were successful on a number of motions in limine, including the exclusion of two of Mr. Novak's proposed liability experts.

In defense, Mr. Latiolait and Mr. Gordon contested liability contending that the tire failed due to a prior road hazard injury and that all of its warnings were appropriate. They also contended that Ms. Ibarra's negligent driving was the cause of the collision and Mr. Novak's damages.

The case was tried in Alameda County in Oakland before the Honorable Winifred Smith. The trial lasted for four weeks. During the pendency of the trial, Mr. Latiolait and Mr. Gordon obtained a nonsuit as to Mr. Novak's strict liability cause of action.

After three hours of deliberations, the jury returned a verdict in favor of Continental on the remaining failure to warn claim. The jury also found that the driver's negligence was the sole cause of the accident.