Mel Karfis, Bishop Bartoni, and Stephanie Anderson recently obtained dismissal of a client/retailer in a treestand/ratchet strap products liability matter pending in the U.S. District Court, Eastern District of Missouri. Plaintiff claimed that a replacement ratchet strap used to secure this treestand to a tree was defectively designed and/or manufactured. Plaintiff claims that this ratchet strap, sold by the client/retailer, broke when the Plaintiff stepped on his treestand approximately 25 feet up in a tree. During the fall the Plaintiff sustained severe deep lacerations to the entire length of his left forearm resulting in permanent tendon and nerve damage. Plaintiff alleged that the client/retailer was liable for selling the allegedly defective strap. Defendant responded that Plaintiff had not made a prima facie case that the product was defective and the client/retailer could not be responsible for the Plaintiff’s injuries. Defendant filed a motion for summary judgment arguing the Plaintiff had not established a prima facie case for a design, manufacturing, or warnings case against the client/retailer. As a result of the motion, the Court entered an order dismissing the client/retailer with prejudice.
Bishop A. BartoniBishop Bartoni Clark Hill
Bishop A. Bartoni
Bishop Bartoni is a senior attorney in the Litigation Practice Group of Clark Hill’s Birmingham office, specializing in product liability matters.
Bishop has aggressively defended multiple national product liability actions across the United States in Illinois, Maine, Michigan, Minnesota, Pennsylvania, and Wisconsin. Bishop has experience defending industrial and consumer products including: treestands, firearms, arrows, crossbows, hunting products, airplanes, asbestos, automobiles, conveyor lines, helmets, power presses, radiant heaters, rope/cables, and snow blowers. Bishop specializes in defending manufacturers of hunting, outdoor and recreational products, which include treestands, guns and bows, crossbows, arrows, and safety harnesses.
Bishop has extensive litigation experience and has defended successfully numerous clients in the following representative areas of practice: automobile negligence, commercial litigation, construction accident litigation, insurance coverage, and premises liability litigation. Bishop has also briefed and/or argued appeals in the Michigan Supreme Court and the Michigan Court of Appeals.
Bishop’s recreational interests include hunting, fishing, and golfing.
Clark Hill’s defense counsel team which included Mel Karfis, Stephanie Anderson, Bishop Bartoni, Vince Roskovensky, and Lisa Eldridge recently obtained a directed verdict in a treestand products liability jury trial pending in Dauphin County, Pennsylvania (Harrisburg, PA). Plaintiff fell 30 feet from a treestand sustaining serious injuries rendering him a paraplegic. Plaintiff alleged that a treestand sold by the client/retailer failed to provide all the necessary components to safely install and use the treestand. Defendant responded that it did provide all the necessary components that would have been supplied by the manufacturer. Defendant further argued that even if the Plaintiff did not receive all the necessary parts and components, Plaintiff had full knowledge that he was allegedly missing parts and made a conscious decision to replace various components with unauthorized replacements. During trial, defense counsel effectively cross-examined the Plaintiff, the Plaintiff’s fact witnesses, as well as the Plaintiff’s engineers. After the close of the Plaintiff’s proofs, Defendant moved for directed verdict alleging that Plaintiff had failed to establish a prima facie case that the client/retailer sold a defective treestand and, in the alternative, the Plaintiff had assumed the risk because cross-examination at trial had revealed the Plaintiff had full knowledge that he was alleging missing vital components and knowingly used unauthorized replacement parts in an improper manner causing his fall. The trial court agreed and granted Defendants’ motion for directed verdict dismissing the case.
Mel Karfis, Stephanie Anderson, and Bishop Bartoni recently obtained a unanimous defense verdict in a products liability lawsuit pending in Rusk County, Wisconsin. The Plaintiff sustained serious permanent injuries and disfigurement when he fell approximately 25 feet from a treestand shattering both legs. The Plaintiff claimed that the safety harness he was utilizing at the time of the fall, manufactured by the Defendant, did not operate properly and failed to arrest his fall. The Plaintiff claimed he received the wrong warnings and instructions for his product and that the safety harness instructions and labeling were inadequate and a direct cause of the accident. Defendant responded that the Plaintiff failed to properly utilize the safety harness as directed from the manufacturer. Defendant also submitted evidence, along with expert testing, that the cause of the accident was not some defect or inadequate warnings or instructions, but rather the Plaintiff’s misuse of the product which was a direct result of the accident. The 11 person jury unanimously agreed with the Defendant’s position and rendered a defense verdict in less than an hour.
Mel Karfis, Stephanie Anderson, Bishop Bartoni & Barry Sutton won a victory for their clients in a products liability case in Mississippi. The Plaintiffs filed their Complaint in the Circuit Court of Jasper County, Mississippi, one of the most plaintiff friendly jurisdictions in the South, for injuries resulting from a fall while using the subject treestand and full body safety harness. The Plaintiffs filed suit against the manufacturer, retailer, as well as the Treestand Manufacturers Association (TMA), which is a Mississippi voluntary non-profit trade association. Mel Karfis, Stephanie Anderson and Bishop Bartoni defended the manufacturer and removed this case to United States District Court for the Southern District of Mississippi based on fraudulent joinder of the non-diverse TMA. Plaintiffs filed a motion to remand the case back to state court. Sutton joined in opposition to the remand and filed a Motion to Dismiss on behalf of our other client, the TMA.
The Federal District Court, noting the heavy burden in establishing fraudulent joinder, held that Plaintiffs could not establish a viable claim against the TMA because the TMA was not a manufacturer, designer or seller and could not be liable under the Mississippi Product Liability Act. The Federal District Court further noted that Plaintiffs failed to plead any factual allegations that the TMA took any action or made any representations that resulted in the injury. Plaintiffs Motion for Remand was denied and the District Court properly found that the TMA was improperly joined for the sole purpose of defeating diversity jurisdiction. As such, the District Court further dismissed the TMA with prejudice from the suit and Clark Hill will continue to defend its clients in Federal Court, escaping the very dangerous local state court.
Karfis, Bartoni, and Anderson recently obtained dismissal in a products liability action pending in the Northern District of Iowa involving a hunting ladderstand. The Plaintiff alleged that the subject ladderstand was defectively designed and lacked proper warnings. The Plaintiff was attempting to install the ladderstand when the metal frame of the ladderstand bent causing the Plaintiff to fall to the ground and sustain serious injuries. Plaintiff also alleged that he did not receive any written warnings or instructions with the subject ladderstand and thus there was also a manufacturing defect for the subject ladderstand. Defendant asserted that there was no defect with the subject ladderstand and the design had met all industry performance standards. Defendant also obtained very favorable testimony that even if the Plaintiff did not receive the written warnings and instructions, he proceeded to attempt to utilize the ladderstand knowing the warnings and instructions were missing which established the assumption of risk defense. The Defendant filed a Daubert motion to strike the Plaintiff’s expert as well as motion for summary judgment that there was no defect with the subject ladderstand. In response, knowing the very strong position Defendant had developed in the case, the Plaintiff agreed to voluntary dismissal with prejudice as to all counts, dismissing the case in its entirety.
Mel Karfis, Bishop Bartoni, and Stephanie Anderson were successful in having summary judgment affirmed in favor of their clients in the United States Court of Appeals for the Fifth Circuit from a case pending in Federal Court in Louisiana. The Plaintiff sustained significant injuries to his back resulting in multiple surgical repairs and permanent disabling conditions after falling from a treestand he claimed was defective and unreasonably dangerous. The defense presented expert testimony and evidence to establish that Plaintiff had left the treestand exposed to the outdoor elements for years resulting in deterioration of the webbing material of the straps holding the treestand in the tree. Defendant established Plaintiff failed to present sufficient evidence to establish his claims, which resulted in summary judgment in favor of Defendants. The Fifth Circuit Court affirmed finding that Plaintiff’s evidence was purely speculative inferences of a defective condition and agreed with Defendants that Plaintiff could not exclude other possible explanations for the straps’ breaking, including misuse. The Fifth Circuit Court also affirmed that the district court properly granted summary judgment of Plaintiffs warning claims because Plaintiff explicitly admitted his knowledge of the danger associated with environmental exposure of the subject product.
Mel Karfis, Stephanie Anderson and Bishop Bartoni obtained a “no cause of action” in a binding arbitration in a wrongful death products liability action involving an allegedly defective safety harness. The Plaintiff’s estate brought a wrongful death action alleging that Defendant’s safety harness did not operate properly and arrest his fall while utilizing a treestand. Plaintiff alleged the safety harness malfunctioned when the Plaintiff fell from his treestand allowing him to fall to the ground and sustain fatal injuries in front of his two young children. The Plaintiff alleged the safety harness was defectively designed and also provided inadequate warnings. The safety harness manufacturer asserted there was no defect with the safety harness and the warnings were adequate. After presentation of the Defendant’s corporate representative and several experts, as well as effectively cross-examining the Plaintiff’s fact witness and experts, the arbitrator found completely in Defendant’s favor and found “no cause of action”.
Mel Karfis and Bishop Bartoni, assisted by Catherine Parker, recently won a products liability action in the Northern District Federal Court of Pennsylvania involving a treestand. The Plaintiff was attempting to install Defendant’s ladderstand when the metal frame of the ladderstand bent causing the Plaintiff to fall to the ground and sustain serious injuries. Defendant alleged that the ladderstand was defectively designed, utilized inferior metal and also failed to provide clear and adequate warnings for proper and safe use. The Defendant responded that the sole cause of the action was the Plaintiff’s material misuse of the ladderstand, including numerous material assembly and installation errors. The Defendant responded by attacking the Plaintiffs expert’s opinions and was successful in excluding the Plaintiff’s expert. Defendant also filed a motion for summary judgment on the basis that without an expert, the Plaintiff could not establish any type of products liability case. The Court agreed and struck the Plaintiff’s liability expert. The Court dismissed the Plaintiffs design defect claim. The Plaintiff attempted to assert he could proceed on a failure to warn case even without an expert. The Court allowed the parties to brief the issue and ultimately the Court agreed with the Defendant and the case was dismissed in its entirety with prejudice.
Mel Karfis and Bishop Bartoni obtained summary judgment on a products liability case pending in Virginia Federal Court. Plaintiff was using steel screw in tree steps to allow him to ascend a tree to get to his hunting treestand. Plaintiff claimed one of the steps broke causing him to fall and sustain serious permanent injuries. Plaintiff argued that inferior steel lead to the tree step breaking. Plaintiff denied that he had left the tree step in a growing tree for many years. After cutting down the tree and taking a cross-section of the tree at the point where the step was screwed into the tree, Defendant was able to ascertain that the Plaintiff was not being forthright. Counting the inner rings of the tree, Defendant’s expert determined that Plaintiff had left the step in the tree for at least 8 years. Defendant also successfully cross-examined Plaintiff’s mechanical engineer and metallurgist that the observed damage was the result of tree growth applying forces to the tree step causing the eventual facture. We subsequently moved for dismissal arguing that there was no evidence to establish a defect, that Plaintiff failed to heed the warnings to remove the step and that Plaintiff’s misuse caused the accident, supported by the evidence learned during discovery. The Court agreed and dismissed the Plaintiffs entire case.
Mel Karfis, Bishop Bartoni, Paul Scheidemantel, and Vince Roskovensky recently obtained summary judgment in a products liability case pending in Pennsylvania Federal Court. In this suit, Plaintiff claimed he suffered significant injuries when he fell from a purportedly defective ladder style treestand. Plaintiff’s expert opined that the design of the ladder was defective, despite the design being the industry standard. The Plaintiffs expert further opined that the warnings were defective because the warning sticker on the ladder itself was not readable by the user, despite the numerous adequate warnings found on the stand and in the instruction manual. After effective cross-examination of Plaintiffs expert during deposition, we filed a motion to preclude Plaintiffs expert from testifying at trial. We also argued in a dispositive motion that Plaintiff had no evidence of a defect in the product and that if the court agreed with our other motion, Plaintiff had no expert to establish a strict products liability claim under Pennsylvania law. The Court agreed with our arguments, struck Plaintiffs expert from testifying and dismissed Plaintiffs complaint in its entirety.
With assistance from Kristi Gauthier, Ed Hammond, Peter Domas and Bishop Bartoni, Kevin Hendrick and Nicole Tersigni successfully defended an insurance priority dispute, resulting in an extremely favorable judgment for firm client, United States Steel Corporation’s ERISA-governed Retiree Benefits Plan. U. S. Steel Retirement Plan was joined as a third-party defendant in a pending dispute by a No-Fault Automobile Insurance carrier, which had been sued by a healthcare service provider for unpaid patient attendant care fees. The No-Fault Carrier claimed that the obligation to pay for these services under Michigan No-Fault law fell to U. S. Steel Retirement Plan, which covered the patient (who was a former U. S. Steel employee). Ed, Bishop, Kristi and Peter lent their expertise to Kevin and Nicole in interpreting alleged conflicting insurance priority provisions and explanations of benefits. Kevin and Nicole crafted a legal argument that ultimately led to summary disposition in favor of U.S. Steel Plan, and against the No-Fault carrier, saving U.S. Steel Plan from payment of the healthcare fees, and also reimbursing U.S. Steel Plan for benefits it had earlier paid by mistake, out of priority. As the No-Fault carrier had rejected the Case Evaluation award prior to the filing of cross motions for summary disposition, it also appears that attorney fees are recoverable for our client. Kristi and Ed on Employee Benefit law, Bishop on Michigan No-Fault law, and Pete on Health Care issues, proved to be unbeatable resources.
Barry Sutton, Bishop Bartoni and Stephanie Anderson won a victory for their client in a product liability case pending in Federal Court in Philadelphia. The Plaintiff sued an alleged successor in interest to the manufacturer and the retailer in a product liability treestand case. The incident rendered him a paraplegic. Plaintiff sought recovery against the purported successor under the Pennsylvania product line exception to successor liability. In a case in which the demand was well in excess of ten million dollars, the Plaintiff’s counsel voluntarily dismissed the Plaintiff’s case against our client because he did not want Clark Hill counsel at trial conducting examinations of his experts. Clark Hill then sought and obtained a motion for summary judgment on the cross claims from the retailer, resulting in judgment in favor of our client.
Barry Sutton, Bishop Bartoni and Stephanie Anderson won summary judgment on behalf of our clients, Bass Pro Shops, American Sportsman’s Holdings, Bass Pro, LLC and Bass Pro Outdoors Online, LLC in Federal Court in the Southern District of Mississippi. In this emotionally charged case highlighted by multiple, national media reports, our client Bass Pro Shops was accused of selling hunting equipment that was allegedly subject to recalls issued by the United States Consumer Product Safety Commission. The Plaintiff’s adult son died in connection with a treestand accident, and, although no products sold by our clients were involved in that accident, Plaintiff sought out and attempted to purchase numerous other hunting products not involved in her accident that she claimed had been recalled. She alleged a conspiracy to sell and/or recycle recalled products by the hunting industry and retailers.
The Federal District Court dismissed the case against our clients. The Court found that Plaintiff was unable to prove that the products she purchased were actually subject to any recall. Since this was an essential allegation to each of her multiple counts, the Court granted summary judgment.