Virginia Lawyers Weekly//February 16, 2015
Virginia Lawyers Weekly//February 16, 2015//
Decedent Frank S. Wright, an 88-year-old Chesapeake resident, died on Dec. 23, 2010, when his Ryobi ride-on lawn mower exploded while he was using the mower and burned him to death. The case was filed against Ryobi and Home Depot in state court but later removed to Norfolk federal court.
Counsel for the plaintiff contended that Ryobi knew that the design of the plastic fuel tank and fuel line connection on the company’s ride-on lawn mower was insecure and Ryobi was aware of the risk of gas leakage and sudden fires. In fact, Ryobi made a newly designed fuel tank available within one year of the decedent’s purchasing the Ryobi ride-on mower in a Home Depot store, but decedent and other consumers were never told of the safer plastic tank with a better fuel line outlet connector. Decedent’s mower was one of about 18,000 Ryobi ride-on mowers sold between 2005 and 2007 at Home Depot stores across the country.
For two years, Ryobi denied that any other similar lawn mower fires occurred prior to decedent’s death in 2010. However, evidence was brought to light indicating another Ryobi mower fire had occurred in Indiana and burned a home to the ground. This vital evidence was not produced until two business days prior to trial. The similar fire that was discovered occurred only five months before the mower fire that claimed the life of the decedent.
Following a discovery abuse hearing the day before trial, the court excluded one of Ryobi’s designated experts who had testified earlier in deposition that there were no prior Ryobi ride-on lawn mower fires. Plaintiff’s counsel learned that the expert had in fact investigated the prior fire after opposing counsel hit “reply to all” and his email meant for defense counsel also was sent to plaintiff’s counsel.
The trial lasted five days, with the defense contending that the fire was caused by decedent “plowing leaves” even after fire officials said the mower and backyard looked like a “napalm” fire had occurred, and the family contended that the gas leak had been caused by a fuel line separation defect. The jury returned a $2,500,000 verdict in favor of the decedent’s widow, finding Ryobi negligent. The jury found that Home Depot was not liable.
A prohibition existed in the Eastern District of Virginia, barring plaintiff’s counsel from stating the amount sued for, or claimed, during diversity trials. This tradition was in direct contravention to a Virginia statutory provision which allows the plaintiff’s counsel to state the amount sued for during opening statement, closing statement or both (Va. Code § 8.01-379.1). Plaintiff’s counsel contended that this custom is a clear violation of the Rules Enabling Act, which requires a federal court, hearing a diversity case, to apply state law in the absence of a federal rule or statute on point. Plaintiff’s counsel asserted that no federal rule or statute prohibited plaintiff’s counsel from stating the amount sued for during opening or closing statements in a Virginia wrongful death case tried in federal court, after removal. After the issue was briefed, the court ruled that plaintiff’s counsel was permitted to state the amount claimed during their closing argument, and the court’s opinion is pending on this, on post-verdict motions and as to discovery abuse motions.
Type of action: Products liability
Injuries alleged: Wrongful death
Name of case: Bilenky v. Ryobi, et. al.
Court: U.S. District Court, Norfolk
Case no.: 2:13-cv-00345
Tried before: Jury
Judge: Raymond A. Jackson
Date resolved: Jan. 22, 2015
Verdict or settlement: Verdict
Attorneys for plaintiff: Richard N. Shapiro, Virginia Beach; Rob C. Sullivan, Kansas City, Missouri (admitted pro hac vice); Patrick J. Austin, Virginia Beach
Attorneys for defendant: Frederick W. Bode III and Doug M. Grimsley, Pittsburgh; John R. Owen and Julie S. Palmer, Richmond
Plaintiff’s experts: Steven R. Christoffersen, P.E., mechanical engineer, San Antonio, Texas; Richard “Smoky” Dyer, fire origin, Kansas City, Missouri
Defendant’s experts: Neil Wu, fire origin, Maryland