• March 15, 2009

The O’Neils bought a crib for their grand-children, which they used without incident for four years. The crib was then recalled due to a hardware defect, which could cause a gap in the crib gate and pose a risk of injury or death to infants. After the recall, a retrofit was made available for purchasers. The O’Neils opted not to use the retrofit and not to use the crib any more.

The issue before Judge Kyle (D. Minn.) when facing defendants’ motion to dismiss was whether plaintiffs stated a claim in their second amended complaint when they essentially had not suffered injury from the crib. (They might claim they lost the value of the crib but having rejected the retrofit weakens such a claim.) Judge Kyle concluded that plaintiffs failed to state a claim under Minnesota law. O’Neil v. Simplicity, Inc., et al., 07-4070 (D. Minn.) (May 12, 2008). (Moreover, as this was the second amended complaint, he dismissed plaintiffs’ claims with prejudice.)

The crux of legal analysis was whether the case is analogous to Briehl v. General Motors Corp., 172 F.3d 623 (8th Cir. 1999) (“Where, as in this case, a product performs satisfactorily and never exhibits an alleged defect, no cause of action lies.”) Briehl involved an anti-lock braking system (“ABS”) and the class was defined so as to exclude any individuals who had suffered actual physical injuries due to the faulty ABS system.

One judge on the panel distinguished Briehl, pointing out that there were no injuries of any kind in the Briehl case, which related to an allegedly defective ABS braking system. With regard to the cribs, there were 63 cases of injury out of one million cribs sold (but not the named plaintiffs or anyone related to them). (Another judge on the panel pointed out that the Briehl class “carved out” those who suffered injury which might suggest there were, in fact, injuries caused by the ABS systems.)

The case was argued on March, 10, 2009 before the 8th Circuit. The case would have very significant ramifications for consumer product class actions in the 8th Circuit if the plaintiffs were to prevail but their odds do not look good.

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