In 1991, one of the oddest products liability cases ever written by an Ohio Court of Appeals judge was decided. The case, Sedgwick v. Kawasaki Cycleworks, Inc. (1991), 71 Ohio App.3d 117, caused quite a stir when it came out and is still rather unique in Ohio law.
The injured party, Kim Sedgwick, bought a motorcycle from the defendant, Kawasaki Cycleworks, in 1981. The bike, a Honda 750, was modified by the seller to “…give the product greater sales appeal…” according to the court. These included a wind fairing, lower handlebars, foot pegs, and other matters.
Plaintiff obtained the bike on May 16, 1981. The next day, plaintiff was out riding in downtown Columbus [who wouldn’t be??]. He was riding with a friend, who was watching how he handled the bike. The friend drove ahead from a stoplight, then heard a crash and discovered that the plaintiff had crashed, colliding with the curb and guardrail along Fourth Street. Kim Sedgwick suffered very serious injuries – multiple fractures including hip, back, ribs, ankle, knee and pelvis.
Plaintiff sued the dealer alleging that the crash was caused by interference between the newly placed handlebars and wind fairing and the mirrors on the bike.
Here’s where it gets a wee bit weird.
Plaintiff had no recall of the crash. However, according to the appellate court, he underwent two “sodium amytal sessions” to try to help “…facilitate recall of his memory.” The sessions were conducted by a psychiatrist. The second session was particularly fruitful as plaintiff was “…able to recall a number of events which he had previously had not been able to remember…”
Specifically, Kim Sedgwick recalled looking over his left shoulder to look for a car prior to the crash. He stated that the car overtook him and cut him off, causing him to make a sudden swerve to avoid impact. Plaintiff stated his hands became trapped between the handlebars and fairing, causing him to lose control of the bike and head towards the curb.
The defendant filed motions with the court to keep this evidence out. The trial court ruled the testimony was sufficiently reliable as to be admissible.
Plaintiff testified as to his pre- and post-sodium amytal memories. The psychiatrist also testified as an expert witness, explaining the use of the drug, its acceptance in psychiatry and the procedures for using it, along with his specific testimony about the plaintiff’s enhanced recollection.
Plaintiff and his friend testified they both noticed the fairing interference at the dealer. Plaintiff’s expert testified the bike was defective and that the defect caused the crash. Defendant’s expert testified the crash could not have occurred in the manner described by plaintiff.
The jury found for the plaintiff – in the sum of $783,000.00 in compensatory damages.
Defendant raised eight issues on appeal but the guts of the appeal centered on the admission of “drug induced” testimony.
A 1988 Ohio Supreme Court ruling set forth guidelines for the admissibility of testimony by a witness who had undergone hypnosis. The trial court applied those concepts to the sodium amytal sessions. The ultimate standard set by the Court is incredibly vague – “Testimony … by a witness who memory had been refreshed by hypnosis… is admissible only if the trial court determines that, under the totality of the circumstances, the proposed testimony is sufficiently reliable to merit admission…” The Court then set out a five-step guideline which the trial court “may” consider including proof that the sessions were conducted by a psychiatrist who is independent from the case and that the sessions were recorded, preferably on video tape and the information given to the doctor should also be recorded. Finally, only the doctor and subject should be present.
The court of appeals then reviewed the proof here, which was that the psychiatrist was independent and was provided rather limited information about the case. The doctor met with the plaintiff prior to the sessions to determine the scope of his memory and recorded that information in his notes. The doctor recorded both sessions on audiotape.
The court of appeals found that, given the proof presented, the plaintiff had met the burden of proving the reliability of his sodium amytal-enhanced memory.
This was admitted despite the fact that plaintiff’s attorney was IN THE ROOM during the sessions because “… of the potential difficulty of understanding all of the retrieved words while plaintiff was under the effects of the barbiturate…” However, the court found no evidence that counsel’s presence in the room influenced the outcome or plaintiff’s testimony.
Ultimately, the court “affirmed” the trial court’s actions in the case and the plaintiff was allowed to keep his verdict against Kawasaki Cycleworks.
Ohio’s products liability law has undergone some dramatic changes over the years. Many of the changes were spurred by the political realities of Ohio’s legal system which I discussed last month – the “plaintiff’s”-oriented courts of the 1980’s expanded liability and the conservative legislature adopted laws to restrict recoveries. Today, recent changes have again further restricted your ability to bring claims if your bike falls apart.
In ANY crash where a product failure is suspected, it is of CRITICAL importance that everything be preserved in pristine condition. Do not inspect it, twist it, break it, take it apart, have anyone ELSE look at it or do ANYTHING to change anything about the bike or the part that failed. Do NOT send anything away to the manufacturer, the government or anyone else!
You need to find a lawyer to help you as quickly as possible. A lawyer who regularly handles products liability claims will have access to engineers, experts, investigators and others to properly put the case together. Please note, you can NOT handle this type of case on your own. These are complex, expensive and time consuming cases requiring experienced counsel.
GOOD LUCK & GOOD RIDING