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Four-month-old A.H. was severely injured when his Evenflo car seat broke apart, sending the seat -- and A.H. -- hurtling into the back of the car driven by his mother.
A.H.'s father, Tony Hadjih, sued Evenflo on a theory of design defect and failure to warn, as Evenflo knew the two-piece car seat had a tendency to separate during accidents. Even so, the court directed a verdict in favor of Evenflo on the failure to warn claim, and a jury returned a verdict in favor of Evenflo on the design defect claim.
The Hadjihs appealed on these issues and on allowing into the trial a videotaped deposition of a defense witness.
In an unpublished opinion, the Tenth Circuit reversed the district court's directed verdict, finding that the Hadjihs presented sufficient evidence to send the question to the jury.
Evenflo knew that there were 74 prior incidents in which the car seat carrier separated from the base. It had even seen such a separation during testing when the car seat was dropped from a height of only 3 feet. Such a warning would have been feasible, the court explained, given that "[t]he Manual contained numerous other warnings, including the 'risk' of eating a lollipop while riding in the car seat."
The public policy underlying "failure to warn" claims is to advise a consumer about a risk involved in using the product, especially "where there are two ways to use the Discovery car seat: one way is safer; the other way, more convenient. With full information, the consumer can choose when to opt for safety and when to opt for convenience." The fact that the car seat could separate, by itself, doesn't make it unreasonably dangerous, but not warning about the risk of separation does.
The court also pointed out, contrary to Evenflo's claim, that design defects and warning defects aren't mutually exclusive: "A jury might find that a product does not have a design defect but that it still needs appropriate warnings to make it reasonably safe." As a result, the court ordered a new trial on the failure to warn claim.
The defense used a videotape of a deposition because their expert witness was unavailable to testify. At the time of the trial, the witness was over 100 miles from the courthouse, and his absence wasn't caused by Evenflo: He had moved to Georgia for a new job.
The Hadjihs suggested that he could testify through a live video feed, making him "available" within the meaning of the Federal Rules. The district court explained that there was a difference between making a witness unavailable and choosing not to procure a witness who was unavailable. Evenflo could have ordered him to appear, but didn't have to and chose not to.
Witness availability is an interesting question in an era when live video conferencing makes a witness essentially always available if his only criterion for unavailability is that he's more than 100 miles away. But the Federal Rules are currently what they are, and Evenflo was free to use the videotaped deposition rather than call the witness in.
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