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Manufacturer Entitled to Summary Judgment Where Plaintiffs Cannot Meet Burden to Show Defendant Manufactured or Distributed Product

2008 | Topics: Pharmaceutical / Medical Devices, Product Liability

In DiCola v. White Brothers Performance Products, Inc., 158 Cal.App.4th 666 (Jan. 5, 2008), a California Court of Appeal affirmed the trial court’s grant of summary judgment in favor of a distributor and manufacturer in a wrongful death and products liability action brought by the surviving family members of a motorcycle accident victim.

The complaint alleged that the accident occurred because a motorcycle side stand failed to retract.  The distributor presented evidence that it did not sell the type of side stand involved in the accident.  The manufacturer presented expert declarations stating that the side stand involved in the accident differed significantly from its product.  Opposing experts compared the side stand involved in the accident to an exemplar and found the two products similar.  The family members’ counsel submitted a declaration stating that she had obtained the exemplar side stand in its original packaging, from a person who told counsel it came from the defendant-distributor.  The Court of Appeal held that the defense had presented prima facie evidence that it did not manufacture or distribute the product at issue and thus met its initial burden on summary judgment.  The Court’s decision, authored by Justice O’Rourke, held that the plaintiff’s evidence was insufficient to raise a triable issue of material fact.  The court ruled that counsel’s declaration and the packaging and instruction sheet of the exemplar side stand were inadmissible hearsay.