Crown case drags on. PHOTO: SHUTTERSTOCK

The Maine Supreme Judicial Court in Portland sent a contentious forklift product-warning case back to the first district US Court of Appeals in Boston, Massachusetts.

Industry players have concerns that the litigation could expand-dramatically and without boundaries-the duty of an equipment manufacturer to warn end-users well beyond the initial buyer of a forklift.

On 11 December, the justices in Maine ruled that forklift manufacturer Crown Equipment Corp had a duty under Maine law to warn a forklift owner of a safety hazard that Crown discovered although Crown was not the seller of the forklift to its current owner. Crown attorney John Maxa plans to appeal the ruling although plaintiff lawyer Terrence Garmey says there are "no more legitimate arguments in this case" now.

Forklift operator Thomas Brown was asphyxiated on August 1, 2003 while moving chemicals in a storage area at Prime Tanning Co Inc in Berwick, Maine. His chest was compressed between a shelving unit and the dashboard of the 1989 Crown stand-up forklift, according to testimony during the August 2006 jury trial in the US District Court in Portland.

Prime Tanning was the third owner of the forklift.

Jurors found the Crown design safe but cited Crown's post-sale failure to warn in making an award to the widow, Claire Brown. Including pre-judgment and post-judgment interest and legal costs, the award could exceed USD1.85 million, says Garmey, who is with the Portland office of the law firm Smith Elliott Smith & Garmey. Limits in Maine law required the judge to reduce the jury's original award of USD4.2 million (Forkliftaction.com News #275).

Garmey believes the federal appeals court in Boston may enter an order in Brown's favor in early 2009. "Crown has been seriously avoiding any attempts to resolve the matter from day one," Garmey observes. "The federal court has ruled on every issue in our favour, except for damages."

Crown appealed the original jury-trial decision to the Boston court. Maxa calls the trial Chapter 1 and the federal appeal Chapter 2.
In Chapter 3, the appeals court sent the case to the supreme court for Maine, asking the state justices "to answer a specific question of law", notes Maxa, vice president and general counsel for New Bremen, Ohio-based Crown. After answering the question in Crown's favour, the Maine justices "went beyond the scope of their assignment, discussed certain aspects of the case-getting some important facts incorrect-and imposed liability on Crown".

Crown will allege assignments of error in Chapter 4 in Boston. "Once (the justices) answered the specific question, any further deliberation-examining facts and determining law-should be for the jury and not the court," Maxa says. "We ask for a new trial."

Crown added a safety guard to its forklifts in the 1990s and advised customers it was available as a retrofit kit for previously manufactured units.

Maxa notes that Crown sent out 18,000 warning letters about the availability of a kit to remedy the safety defect. "Since they (Prime Tanning) were the third owner, they had no warranty information," he says.

Outside groups support Crown's basic position about the product warning issue. The International Association of Defence Counsel of Chicago, Illinois and the US Chamber of Commerce of Washington, DC each filed an amicus curiae brief on a narrow issue in the case with potential national impact. Those filings contend the basic position in the Brown case, if upheld, would represent an extraordinary expansion of a manufacturer's duty to warn.