Products Liability Law Reporter

The Idaho Supreme Court held that summary judgment for the defense was proper in a products liability case against the manufacturer of carbon electrode pads used in a physical therapy procedure.

Linda Black began undergoing physical therapy at Superior Physical Therapy under the care of its owner, physical therapist Bart McDonald. McDonald recommended that Black undergo interferential current therapy (IFC) to decrease inflammation, increase blood flow, and improve healing. McDonald performed several IFC treatments using a Rich-Mar Muscle Stimulator with carbon electrode pads manufactured and sold by DJO Global, Inc. During the fourth treatment, Black suffered second-degree burns to her lower back.

Black sued DJO Global, alleging that one of the electrode pads used during her treatment was defective when it left DJO’s control. DJO moved for summary judgment. The trial court granted the motion, holding that the plaintiff had failed to provide admissible evidence that there was a defect in the electrode pads.

Affirming, the state high court noted that a products liability plaintiff must prove he or she was injured by the product at issue, the injury resulted from a defective or unsafe product, and the defect existed when the product left the manufacturer’s control. Citing case law, the court added that to prove a product is defective, a plaintiff must provide direct evidence of an identifiable defect or a product malfunction in the absence of abnormal use. Here, the court said, skin irritation and burns are a known side effect of electric stimulation therapy and use of carbon electrode pads. In fact, the plaintiff suffered an injury that is precisely the type known to result from IFC therapy. Thus, the court concluded that the plaintiff cannot prove that the electrode pads malfunctioned, and a jury may not infer that an injury would not have occurred absent a defect attributable to the manufacturer.

Finally, the court rejected the plaintiff’s argument that res ipsa loquitur warrants reversal of summary judgment. The electrode pads were not under DJO’s exclusive control, the court said, concluding that the plaintiff thus cannot satisfy the first element of the doctrine.

Citation: Black v. DJO Global, Inc., 488 P.3d 1283 (Idaho 2021).