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Monday, September 21, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Peter and Lori Cook v. Ford Motor Company, a 38-page, 2-1 opinion, Judge Robb writes:

Peter and Lori Cook, as parents and next friends of Lindsey Jo Cook, filed a products liability lawsuit against Ford Motor Company following a motor vehicle accident in which eight-year-old Lindsey suffered serious brain injuries when the airbag in the Cooks' 1997 Ford F-150 pickup truck deployed and struck her in the head. The Cooks alleged that Lindsey's injuries were caused in part by Ford's defective instruction and warnings with respect to the front passenger seat airbag and airbag deactivation switch.

The trial court granted summary judgment to Ford on the Cooks' failure to warn claim, and the Cooks appeal, raising several issues that we restate as three: 1) whether the Cooks' failure to warn claim is preempted; 2) if not, whether a genuine issue of material fact exists regarding Ford's breach of its duty to warn; and 3) whether a genuine issue of material fact exists regarding Ford's breach being a proximate cause of Lindsey's injury. Ford cross-appeals the trial court's denial of its motion for fees and costs filed after a mistrial was declared, raising the issue of whether the trial court abused its discretion in failing to find the Cooks in contempt.

Concluding the Cooks' claim is not preempted by federal regulation and there is a genuine issue of material fact as to whether Ford breached its duty to warn and whether Ford was the proximate cause of Lindsey's injury, we reverse the trial court's grant of summary judgment to Ford on the Cooks' failure to warn claim and remand for further proceedings. Further concluding Ford was not entitled to fees and costs incurred during the first trial, we affirm the trial court's denial of Ford's motion for reimbursement. * * *

[Re the issue of "failure to warn" and preemption, the court concludes, beginning at p. 16] Finally, in Wyeth v. Levine, 129 S. Ct. 1187 (2009), the Court held that a state law claim of failure to warn of a specific risk associated with a prescription drug was not preempted. The plaintiff had received an injection of a drug via a method that resulted in gangrene and amputation of her arm. The drug and its warning label had been approved by the FDA pursuant to the FDCA. The plaintiff argued that the manufacturer should have strengthened the approved warning to warn of the risks of administering the drug by that method. The manufacturer argued that it would have been impossible to comply with the state law duty sought to be imposed by the plaintiff to modify the drug warning label and also with its federal labeling duties. The Court held that because a regulation allows a manufacturer to change an approved label to add or strengthen a warning immediately upon filing a supplemental application for the change and without waiting for FDA approval, the manufacturer failed to prove the “demanding defense” of impossibility preemption. The manufacturer also argued that requiring it to comply with a state law duty to provide a stronger warning would obstruct the purposes and objectives of federal drug labeling regulation. The manufacturer argued that the FDCA “establishes both a floor and ceiling . . .: [o]nce the FDA has approved a drug's label, a state-law verdict may not deem the label inadequate . . . .” Id. However, the absence of an express preemption provision in the FDCA for prescription drugs “is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.” The FDA's declaration in the preamble to a 2006 regulation governing the content and format of drug labels that the FDCA establishes a floor and a ceiling and that state law failure to warn claims threaten the FDA's statutorily prescribed role as the “expert Federal agency responsible for evaluating and regulating drugs,” did not merit deference because it was not offered for comment before being finalized, because it was at odds with evidence of Congress' purpose, and because it reversed the FDA's longstanding position that federal labeling standards were a floor only. * * *

[At p. 20] For many of the same reasons Wyeth found no preemption and for several additional reasons as outlined above, we hold that the duty the Cooks seek to impose neither actually conflicts with Standard 208 nor stands as an obstacle to the accomplishment and execution of federal objectives regarding airbag warnings. Therefore, preemption was not a basis on which to grant summary judgment to Ford. * * *

[Re adequacy of warnings, at p. 24] In short, Standard 208 allows Ford discretion in crafting a warning and we believe there is at least a question of fact as to whether Ford exercised that discretion in crafting a warning that was strong and specific enough to warn the Cooks that the additional instructions were linked to danger from the airbag. Thus, we hold Ford was not entitled to summary judgment on the issue of breach of its duty to warn.* * *

[Re I - The Cooks' Appeal, at p. 29] Although a jury may very well find for Ford with regard to the breach of its duty to warn or the proximate cause of Lindsey's injury, we cannot say that the designated evidence leads to but a single inference so as to render the issues questions of law, not fact. Ford failed to negate an element of the Cooks' failure to warn claim as a matter of law, and summary judgment was therefore inappropriate. Accordingly, the trial court's grant of summary judgment to Ford on the Cooks' failure to warn claim is reversed and this case is remanded for further proceedings. * * *

[Conclusion, p. 35] The trial court did not abuse its discretion in denying Ford's motion (Issue II) for fees and costs incurred during the first trial of this cause. Standard 208 as it applies to airbag warnings in the owner's manual provides a minimum standard that does not preempt the Cooks' claim that Ford's warnings were inadequate. There is a genuine issue of material fact as to whether Ford breached its duty to warn and whether its breach, if any, was a proximate cause of Lindsey's injury; the trial court's grant of summary judgment is reversed and we remand for further proceedings consistent with this opinion. Affirmed in part; reversed and remanded in part.

CRONE, J., concurs.
BROWN, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 36] I respectfully concur in part and dissent in part. I concur with the majority's analysis and determination of the first issue that the duty the Cooks seek to impose was not in conflict with Standard 208, nor was Standard 208 an obstacle to the accomplishment and execution of federal objectives, and therefore the cause of action was not preempted under the Supremacy Clause of the United States Constitution. As to the second issue, I respectfully dissent.

I agree with the majority that Ford owed the Cooks a duty to warn of the dangers associated with their truck's airbags. I disagree with the majority's conclusion that there exists a genuine issue of material fact that Ford was in breach of that duty.

In A.H., Alleged to be CHINS; B.H. & C.H. v. IDCS, a 16-page opinion, Judge Brown writes:
B.H. and C.H. (―Mother,‖ and together with Father, appeal the trial court’s order determining that A.H. is a child in need of services and the dispositional order following that determination. Parents raise one issue, which we restate as whether sufficient evidence supports the trial court’s determination that A.H. was a CHINS. The Indiana Department of Child Services raises one additional issue, which we restate as whether the trial court abused its discretion by excluding certain evidence relating to adjudications involving the Parents’ other children. We affirm. * * *

Given the evidence and testimony presented at the fact-finding hearing, we cannot say that the trial court’s findings of fact, conclusions of law, and judgment were clearly erroneous. The evidence and findings of fact were sufficient to demonstrate that A.H.’s physical condition was "seriously endangered." See, e.g., Roark, 551 N.E.2d at 869-872 (holding that the evidence presented at a fact-finding hearing was sufficient to support the CHINS finding); Parker v. Monroe County Dep’t of Pub. Welfare, 533 N.E.2d 177, 179 (Ind. Ct. App. 1989) (observing that the court does not have to wait until a tragedy occurs in order to take action and holding that the evidence supported the conclusion that the children were CHINS).
__________
Because we affirm the trial court’s determination that A.H. was a CHINS based upon the evidence admitted at the fact-finding hearing, we need not address the issue raised by DCS whether the trial court abused its discretion in excluding evidence relating to Parents’ prior involvement with DCS and previous CHINS adjudications involving S.H. and C.F.

NFP civil opinions today (1):

Calvin Deloney v. Indiana Department of Correction, et al (NFP) - "Calvin Deloney filed a 42 U.S.C. § 1983 complaint against various correctional authorities. Deloney claimed that his parole revocation proceedings violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The trial court dismissed the cause pursuant to Indiana Trial Rule 12(B)(6). Because Deloney joined improper defendants, and because his parole revocation has not been reversed or declared invalid, we affirm."

NFP criminal opinions today (6):

John Booker v. State of Indiana (NFP)

Raymond C. Siller v. State of Indiana (NFP)

Julian Brooks v. State of Indiana (NFP)

Alana Jefferson v. State of Indiana (NFP)

Charles E. Hubbard v. State of Indiana (NFP)

K.J. v. State of Indiana (NFP)

Posted by Marcia Oddi on September 21, 2009 12:27 PM
Posted to Ind. App.Ct. Decisions