Case Study: Product Liability

product liabilityIn this product liability case study, the plaintiff alleged that the defendant’s manufactured potting soils did not meet soil pH specifications. This negligence cost the plaintiff to lose his entire growing operation and business. The claim was in the realm of $14 million.

The plaintiff ordered 25 yards of soil from a well-known and established manufacturer of soils (defendant). The first load of 25 yards was delivered and plants were installed. This process replicated itself for three deliveries over a period of four months.

The defendant started to see problems in his plants, including black spots. He retained a horticultural consultant who could not identify the problem of the black spots, but did note that the soil pH was “somewhat high.”

The plaintiff continued to order soils from the defendant manufacturer. However, things got worse. The horticultural consultant came back 3 times to inspect and diagnose the affected plants. He made two epic recommendations: covering time-released fertilizer with soil for better release, and applying a specific type of nutrient to the plants. In sworn testimony, the plaintiff claims that both of these recommendations were followed to the letter.

Product LiabilityThe plaintiff hired a Ph.D. in soil sciences to diagnose the problems.  The soil scientist noted that the soil pH was in fact too high, thereby causing the tie-up of certain nutrients from the soil profile into the plant biology.  The unavailability of these nutrients caused the plants to become unmarketable.  He also conducted his own tests at the plaintiff’s nursery.  One test group of plants was grown in a soil previously used by the  plaintiff, and the other test group used the defendant’s soil.  Test results demonstrated poor soil pH and resultant “un-marketability” of plants that had been grown in the defendant’s soil, while previously used soil grew an acceptable and marketable product.

Product Liability Case

A claim was filed for approximately $14 million in damages.  The defendant was unable to produce soil test results when the product left their manufacturing facility.  He could demonstrate the precise addition of different ingredients to the defective soil during the manufacturing process. This was much like strictly following the recipe for baking a cake but never having eaten a sample of the finished product before distribution into the marketplace.

At the same time, no records had been kept at the plaintiff’s nursery. There were no pictures of damaged plants produced during discovery.  There was a handwritten note on an invoice for one of the plaintiff’s customers, which demonstrated that the plant product was not acceptable for resale.  The only records available were of the horticultural products that the plaintiff had ordered to manage and maintain plants. 

Are Plaintiff’s Claims Legitimate?

After 80 hours of reconstructing fertilizer purchases and soil amendments for this product liability case, we discovered the following, and presented presented the results during our  expert deposition testimony for the defendant:

  1. Not enough soil had been ordered from the defendant to grow the number of plants claimed in the casualty loss.
  2. According to tax returns of the casualty period, not enough labor hours spiked in-line item labor costs to cover the claim that the two recommendations from the horticultural expert (to cover time-released fertilizers with soil and apply the particular iron supplement) had been followed or implemented.
  3. There were actually two nursery operations being run by the plaintiff under the same roof as the casualty claim. However, separate records had not been kept between the two separate nursery growing operations.  It could not be demonstrated by the plaintiff that the alleged defective soil had not been used in both nursery operations.
  4. A product that raises soil pH was noted to have been ordered by the plaintiff with no explanation as to its use and application at his  nursery operation. The only purpose for this product is to raise soil pH — the very heart of the claim.
  5. The number of plants claimed as a loss differed from the time period testified to by the defendant.
  6. Nutrients that would have been made unavailable by high soil pH were countered by nutrients that would not have been available had the soil pH been correct. A classic fait accompli, as the plaintiff was responsible for the specifications of the manufactured soils.
  7. The testing done by the soil scientist at the plaintiff’s nursery was left unattended and unobserved for a period of months before the test results were taken as a conclusion to his opinion.
  8. The matter dramatically turned with our deposition on the question, “why did plants in the previously used product soil at plaintiff’s nursery perform very well but the same plants did not perform adequately in the defendant’s manufactured soils.”  A close side-by-side examination of both soils demonstrated the difference in the composite makeup and manufacturing of the two soils.  The soil previously used by the plaintiff included vermiculite, while the defendant’s soil used perlite instead.  Vermiculite has the ability to grasp and hold on to certain electrically charged nutrients, while perlite does not.  The question then having been answered leaves the plaintiff little room to negotiate the outcome of the matter, as the plaintiff was responsible for the defendant’s ingredients in the manufactured soil.

This product liability matter was settled after depositions.

Joe Samnit, Expert Tree Consultant