Appellate Decisions (Continued from page 33)


The statute of limitations requires a plain- tiff to file suit within three years after plaintiff knew or should have known that a cause of action exists. Mr. Jacobs iden- tified that there was a potential malpractice cause of action against the doctors but failed to bring suit against Dr. Flynn within three years of accrual of the cause of action because he relied on Dr. Flynn’s interpretation of a bone scan as “normal” and did not obtain the actual bone scan during his investigation. A person of ordinary prudence investigat- ing which doctors to sue would have obtained the actual bone scan; therefore, the trial court was correct in holding Mr. Jacobs’s claim against Dr. Flynn was barred by limitations. The settlement agreement between


Mr. Jacobs and Dr. Seals provided for pro rata reduction of Dr. Seals’s liability as provided by Maryland Contribution Among Joint-Tortfeasors Act. The agree- ment may not be used to determine the tort-feasor status of the remaining defen- dants who were not parties to the agreement. Dr. Flynn, however, may still be considered a tort-feasor under the Act because he was found liable by the jury notwithstanding the dismissal on statute of limitations grounds. A limitations de- fense depends on litigation procedures that transpire after the wrongdoing occurs and does not arise out of the wrongdoing itself.


The California doctors sued in Cali- fornia and outside the jurisdiction of Maryland courts cannot be considered joint tort-feasors under the Act. The fact that a party has been sued or threatened with suit is not enough to establish tort- feasor status. A party must either admit liability or be found liable in court. The trial court adequately instructed


the jury on the alleged apparent agency relationship between Dr. Flynn and Howard County General Hospital. Mr.


Jacobs claimed during trial that he be- lieved an employment relationship existed between Dr. Flynn and the hospital and the jury instruction that provided ele- ments of apparent agency and focused on an alleged employment relationship was proper.


Lisa & Shelia Jacobs, Personal Representa- tives of the Estate of Leo M. Jacobs v. Meade Flynn, M.D., et al., No. 5893, September Term, 1998, filed February 25, 2000. Opinion by Adkins, J.


________


Products liability – design defect – in a strict liability “crash worthiness” case, plaintiffs have the burden of establish- ing that the design used by the manufacturer caused greater injures to the victim than would have occurred had a proper design been used.


Facts: A jury in the Circuit Court for Carroll County awarded damages of $4,034,000 to the estate and surviving family members of Donald Nave who was killed on March 25, 1989, when his 1989 Nissan pickup truck crashed head-on into a jackknifing tractor-trailer. As a result of the collision, Nave struck the pickup’s steering assembly and sustained fatal chest injuries. Appellees alleged, inter alia, that the steering column in Nave’s pickup was designed defectively and that a proper design would have prevented Nave’s death.


Held: Judgment reversed. The curt held that the trial judge erred in denying Nissan’s motion for judgment because the appellees did not establish a prima facie case of de- sign defect. The Court held that a plaintiff in a design defect case must prove seven elements: (1) the existence of an alternative design that is safer than the design used in the suspect product; (2) the technological feasibility of manufacturing a product with the alternative design at the time the sus- pect product was manufactured; (3) the


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Trial Reporter


availability of the materials required to pro- duce the alternative design; (4) the cost of production of a product that incorporates the alternative design; (5) the price to the consumer of a product incorporating the alternative design; (6) the chances of con- sumer acceptance of a model incorporating the plaintiff’s suggested alternative design; and (7) where the alleged design defect does not cause the initial accident, the plaintiff must prove that the design used by the manufacturer caused greater injuries to the victim than would have occurred had a proper design been used. Appellees spent the bulk of their time at trial attempting to show that the self- aligning canister design was viable alternative design that would have saved Nave’s life if it had been incorporated into his 1989 Nissan pickup truck. The Court concluded, however, that appellees failed to produce sufficient evidence to estab- lish several of the elements necessary to prove a defective design.


Among other items, appellees also


failed to produce sufficient evidence show- ing that Nave would have survived the accident if his pickup truck had a self- aligning canister steering column. While appellees’ expert testified that a canister design “would have, certainly, tremen- dously reduced the energy potential to Mr. Nave,” he did not testify that this reduc- tion in energy would have made any difference.


In other words, there was


nothing in the expert testimony that in- dicated that his reduction in energy would have been of such a degree that Nave would have survived the accident. Appellees also failed to demonstrate the cost of incorporating a self-aligning canister design into a 1989 Nissan pickup truck, the price to the consumer of incor- porating such a design, and whether a pickup truck with a canister steering col- umn would be accepted by consumers. Because there was no evidence pro- duced a trial to establish technological feasibility of a safer alternative design, Nave’s survivability when utilizing such an alternative design, and cost effective- ness of the alternative design, the Court concluded that the appellees did not es- tablish a prima facie case of design defect. The appellees did present some evi- dence concerning four other alternative designs. The Court concluded, however, that the evidence submitted as to each al- ternative was insufficient to establish a design defect, because as to each alterna- tive design, appellees failed to prove at least one of the seven necessary elements.


Nissan Motor Co. Ltd. v. Nave, No. 1700, Sept Term, 1998, filed November 4, 1999. Opinion by Salmon, J.


Spring 2000


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