In This Issue:

Massachusetts Federal Court Holds Japanese Escalator Accident Study Inadmissible for Lack of Authentication and Demonstrated Connection to Facts of Case, Defendant’s Introduction of New Shoe Design in Response to Study Inadequate to Show Superiority of New Design; Massachusetts Federal Court Holds Plaintiff’s Civil Engineering Expert Not Qualified to Opine on Alternative Designs in Construction Loader Suit and Opinions Not Shown Reliable Because Expert Performed No Testing Regarding Proposed Designs’ Feasibility and Effectiveness; Massachusetts Federal Court Holds Due Process Bars Personal Jurisdiction Over Distributor’s Third-Party Complaint Against Italian Manufacturer as Contract Clause Providing for Dispute Resolution in London, and Other Factors, Made Exercise of Jurisdiction Inconsistent with “Traditional Notions of Fair Play and Substantial Justice”; Massachusetts Superior Court Denies Foreign Manufacturer Summary Judgment for Lack of Personal Jurisdiction, Holding Manufacturer Waived Defense Through Participation in Discovery and Motion Practice Regarding Merits of Suit; Massachusetts Federal Court Dismisses Plaintiff’s Direct Claims Against Massachusetts Corporations Previously Joined as Third-Party Defendants Because Direct Claims Would Destroy Diversity Jurisdiction; Dismissal Would Not Prejudice Parties Because Corporations Would Remain in Suit as Third-Party Defendants.

Excerpt from Massachusetts Federal Court Holds Japanese Escalator Accident Study Inadmissible for Lack of Authentication and Demonstrated Connection to Facts of Case, Defendant’s Introduction of New Shoe Design in Response to Study Inadequate to Show Superiority of New Design

In Geshke v. Crocs, Inc., 2012 WL 3877620 (D. Mass. Sep. 7, 2012), a child was injured when her sandal-design shoe got caught in an escalator. Notwithstanding multiple signs near the escalator alerting pedestrians to “avoid sides,” and “keep tennis shoes away from sides” and specifically warning parents to “attend children” and “PARENTS – Your children must obey these rules,” the child boarded the escalator standing all the way to its side and several steps in front of her parents. As the escalator descended, the child’s right foot became caught between the moving step and the escalator’s side skirt, contorting her foot upside down at a 90-degree angle. Thereafter, the child’s mother sued the shoe’s manufacturer in the United States District Court for the District of Massachusetts for negligence and breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), among other claims, alleging design defects and failure to warn of the shoe’s dangers to young children riding escalators. The manufacturer moved for summary judgment arguing that plaintiff’s failure to support her design defect claim with expert testimony precluded a finding of liability and her disregard of the conspicuous signs posted near the escalator precluded any finding that a warning by the manufacturer would have prevented the child’s harm.