Michaels v. Pentair Water Pool & Spa (Nev. Ct. App. – Oct. 1, 2015)
This case arose from allegations of attorney misconduct in a products liability trial involving swimming pool filters. After the jury rendered a verdict in favor of the manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer’s attorney. The district court denied the motion, but failed to make the detailed findings required by the Supreme Court of Nevada.
The Supreme Court of Nevada recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal. In this matter, the Court of Appeals of Nevada summarized those recent developments and provided guidance to district courts tasked with resolving claims of misconduct.
Pentair Water Pool and Spa, Inc. (Pentair), manufactures various models of swimming pool filters for both commercial and residential swimming pools, including the Nautilus FNS filter. In 2006, Michaels purchased a Nautilus FNS filter for use in his backyard swimming pool. Michaels had owned his swimming pool for 27 years, and when his previous filter canister malfunctioned, he integrated the FNS canister into his preexisting filter system. Like many other homeowners, Michaels connected his pool filter system to an automatic timer that could be programmed to turn the system off at night and on again during the day. On July 1, 2008, the filter system was turned off but Michaels manually turned it on in anticipation of guests arriving. The FNS filter canister exploded, and pieces struck Michaels in the left eye and ruptured his eyeball, which had to be removed and replaced with a prosthesis. Thereafter, Michaels initiated the underlying action and sought damages based on his injuries. While Michaels asserted several claims for relief, only the products liability claim was the subject of the appeal.
Michaels alleged that the design of the FNS filter was legally defective because it lacked either (1) a redundant or secondary restraint to hold the canister together in the event of an explosive failure of the clamp; or (2) an external, automatic air release valve allowing any compressed air trapped within the canister to be released if pressure reached dangerous levels. Michaels also alleged that Pentair failed to give him proper warnings regarding the risk of explosion.
Following a two-week trial, the jury returned a verdict in favor of Pentair on all claims. Michaels filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial, which was denied by the district court. Michaels appealed from the denial of that motion.
The operation of swimming pool filters
In order to properly understand the evidence and the arguments made by the parties, the Court explained the operation of swimming pool filters. The Nautilus FNS filter is a so- called split-shell design consisting of two pieces held together by a steel clamp to form a cylinder in which removable filter grids are placed. In operation, water is pumped from the pool and forced under pressure through the filter grids, which trap debris and remove it from the pool water. The steel clamp that holds the two cylinder pieces together can be removed so that the canister may be separated and the filter grids periodically cleaned or replaced.
Pool filter systems are designed as either open systems, in which a water pump pushes pool water through the filter, or closed systems, in which a water pump suctions water through the filter. In either system, a system of pipes carries water from the pool through the filter canister and then back to the pool. The flow of water through the system may be directed by a series of valves mounted on the pipes.
After a filter has been in operation for some time, debris from the pool can accumulate on the filter grids and eventually may clog the flow of water through the system, impeding the effectiveness of the system. To allow removal of some of the debris, some users manipulate the valves to reverse the flow of water through the filter grids and into a separation tank that collects the debris, in a process colloquially known as backwashing. Pentair discourages backwashing and its engineers consider it unsafe, but during trial its expert conceded that manufacturers were aware that users frequently backwashed filters and that such backwashing was foreseeable. In any event, after the filter grids have been backwashed, the valves can be switched back to their normal operating positions. Even with regular backwashing, however, the filter grid elements can eventually become so clogged with detritus that they may sometimes have to be removed and replaced entirely, which is why split-shell filter canisters such as the Nautilus FNS are designed with clamps allowing the canister to be opened.
So long as the filter system is operating normally, water continually moves through the filter cartridge and the water pressure within the filter canister remains more or less constant. However, the pressure within the system may vary from its normal operating levels under two conditions. First, if a large quantity of debris has collected on the filter grids and clogged the system, a water pressure differential may be created within the system as water is pumped into the filter canister under pressure but only trickles out through the clogged grids. This is not normally considered a dangerous occurrence, because water (unlike air) cannot be easily compressed and most filter systems can safely contain water pressure differentials without difficulty, although the ability of those systems to clean the water may become compromised.
More relevant to this case is the second condition, which may occur when the filtration system is turned completely off, causing the water to stop flowing and potentially permitting air to bleed into the system. In commercial pool systems, this condition rarely occurs because most commercial pools are left on continuously, except perhaps occasionally when being actively serviced. On the other hand, many residential pool systems are regularly turned on and off by homeowners (usually at night or during the winter months when the pool is rarely used) in order to save electricity. Testimony was presented that the majority of residential pool owners connect their pool filter systems to timers that automatically turn the system off at night and back on during the day.
When the system is turned off and then turned back on, air that bled into the system while it was off is pushed into the canister by the flow of water. If the filter grids are clogged, the air may become trapped within the canister against the clog with nowhere to go. As more air and water continue to be pumped into the canister under pressure, air pressure may build up within the canister, creating a condition known in the industry as a dead-head. If the pressurized air cannot find a way to escape, the air pressure within the canister grows to dangerous levels as more air and water are forced into the system. When the air pressure within the canister exceeds the ability of the metal clamp to hold the canister together, the canister may explode.
To reduce the risk of such explosive dead-heads, the instruction manual accompanying the FNS filter recommended that the consumer manually bleed excess air from the system each and every time the system is turned off and on. However, when a pool filter is connected to a timer that automatically turns the system off at night and on during the day with no action by the homeowner, the recommendations contained in the instruction manual cannot be complied with, because an automated timer system will not manually bleed out air every time the filter is cycled back on.
The evidence and arguments at trial
Michaels contended that the known risks of explosion rendered the design of the Nautilus FNS filter inherently unsafe when used in normal operation. Pentair countered that the explosion in this case was caused not by any inherent flaw in the design of the system, but rather by an explosive dead-head created by Michaels himself through improper and unforeseeable misuse of the FNS canister. Specifically, Pentair averred that Michaels improperly installed the FNS filter canister onto an obsolete 27-year-old pool filter system that was never designed for the FNS canister and contained a device known as a positive shut-off valve that could be misused in a way that increased the risk of dead-heads and explosions.
In support of his theory, Michaels presented the testimony of Dr. Manning, an expert in mechanical engineering, as well as Dr. Osinski, an aquatics expert. Both generally testified that the phenomenon of pool filters exploding under pressure was known in the industry, that the design of the FNS filter was unsafe, and that safer alternatives existed, including models sold by Pentair that possessed automatic external pressure-relief valves and redundant restraints. Osinski testified that six different companies offered split-shell filter canisters for sale that had redundant restraints and automatic external pressure relief valves, and that explosions of split-shell filters having such safety features were virtually unknown. In contrast, Osinski noted that more than 50 such explosions were known to have occurred with split-shell filters sold without such features, many of which had caused serious trauma and even death to homeowners. The experts noted that Pentair sold a Sta-Rite System 3 split-shell filter with secondary restraints that Pentair advertised as “the world’s safest and easiest to operate filter.” The jury saw internal correspondence written by Pentair employees dated May 16, 1993, which recognized the danger of filter separation under pressure and noted that consumers could be expected to misuse split-shell pool filters in a way that could increase the risk of explosion.
Testimony from several of Pentair’s employees confirmed key portions of Michaels’ allegations. For example, Pentair’s chief engineer, Robol, testified that he believed the design of the FNS filter was safe. However, he agreed that the phenomenon of explosive dead-heads was known within the industry, and admitted that at various times Pentair had sold split-shell filter canisters equipped with automatic external pressure-relief valves designed to reduce the risk of explosion. He conceded that when Pentair sold split-shell canisters with automatic external air relief valves in the past, those valves worked fine. He also agreed that, between 1998 and 2008, Pentair received no claims of filter explosions relating to split-shell canisters sold with such automatic valves, but had received more than 50 reports of explosions in split-shell models sold without those valves. Robol also admitted that filter canisters were designed to be cleaned by consumers, and the accidental creation of dead- heads, either through improper consumer cleaning, or simply because the system was turned on and off repeatedly, was foreseeable to manufacturers such as Pentair.
Similarly, Pentair’s product manager of filtration, Swindell, agreed through his deposition testimony that a consumer’s failure to install the canister properly, to clamp it shut, and to release air pressure before or during cleaning were all foreseeable events. He acknowledged that Pentair’s Sta-Rite 3 filtration system was safer than the FNS because it was held shut by eight individual clamps rather than a single clamp. Additionally, Pentair’s Vice-President of Engineering, Barkitt, conceded at his deposition that Pentair was aware of claims of pool filter separations with its FNS canister, while Pentair employee Wilkes admitted that safer alternatives to steel clamps existed, including a threaded screw-type ring lock system for which no known instances of explosive filter separation had ever been reported.
Pentair’s defense focused upon the contention that the FNS filter canister was safe, partly because the explosion in this case was caused not by any inherent defect in the design of the FNS filter canister, but rather by Michaels’ own unforeseeable, negligent, and dishonest actions. Specifically, Pentair contended that Michaels caused the explosion by dead-heading the system while improperly backwashing it, and then lied about how the explosion occurred. Pentair suggested that Michaels improperly grafted the FNS filter canister onto an older filter system that contained a positive shut-off valve that, when incorrectly used, would seal the canister and trap air within it, thereby artificially creating a dead-head when one otherwise would not have naturally occurred.
During trial, no witness called by either party affirmatively testified that Michaels had improperly used the positive shut-off valve to create an artificial dead-head within the system. Michaels explicitly denied doing so, and no witness identified any evidence suggesting such misuse. Instead, Pentair’s implication that such misuse may have occurred rested upon two prongs. First, after the explosion but before trial, Michaels negligently disposed of parts of his pool filtration system, including the separation tank, the selector valve attached to the filter, the shut-off valves, and various pipes and plumbing. During the trial, Pentair requested, and the district court gave, an instruction that permitted the jury to make an inference adverse to Michaels based upon the failure to preserve the filter system for discovery and trial. Pentair thus argued to the jury that, had the entire filter system been made available for inspection, evidence might have been uncovered that indicated Michaels seriously misused the system while backwashing it.
Second, Pentair made Michaels’ credibility a major subject of the trial. Michaels testified that the canister exploded spontaneously when he merely turned the pool filter system on while standing a few feet way from the system. However, Pentair introduced photos of objects lying on the grass near the canister which, Pentair argued, suggested Michaels was conducting some kind of maintenance on the filter when it exploded. While this contention was disputed by Michaels, medical records indicated that Michaels admitted to his physician that he had been servicing the filter when it exploded. Michaels also testified during trial that he never cleaned the filter himself during the two years he owned it, and that he thought the filter was being cleaned by his maintenance company, Pool Chlor. However, the owner of Pool Chlor testified that the company only managed the chemical levels in the pool and never cleaned Michaels’ pool filter.
On cross-examination by Pentair, Michaels’ experts agreed that their conclusion that Michaels’ injury was caused by the defective design of the FNS filter was predicated upon Michaels’ own description of how the explosion occurred, and if Michaels was proven to have lied, then their conclusions may no longer be valid. Pentair also argued that certain facts proven by Michaels’ experts, while true, could be interpreted in different ways. For example, Pentair’s statistical expert, Dr. Marais, testified that while Pentair had received 50 reports of explosions in filter canisters lacking redundant safety features, those 50 claims must be considered in the context of the thousands of canisters sold nationally.
Thus, in lieu of evidence affirmatively demonstrating that Michaels had modified or misused the FNS filter canister in an unforeseeable way to cause the explosion, Pentair argued that inconsistencies in Michaels’ evidence, coupled with the negligent disposal of parts of the filter system prior to trial, permitted the jury to infer that such a modification or misuse had occurred. Consequently, Pentair argued to the jury that Michaels failed to meet his burden of demonstrating by a preponderance of the evidence either that the design of the FNS filter was unsafe or that any design defect was the proximate cause of his injury.
Michaels’ appeal
On appeal, Michaels asserted various errors. However, because the trial court failed to properly analyze the claims of attorney misconduct made by Michaels in his post-trial motions, the Court of Appeals of Nevada only addressed that contention.
When the losing party in a civil trial alleges in a post-trial motion that it is entitled to a new trial because the prevailing party committed attorney misconduct during the trial, the Supreme Court of Nevada has held that the district court must make detailed findings regarding the role that the alleged misconduct played at trial and the effect it likely had on the jury’s verdict. The Court explained that in this case, the district court did not make hose findings.
The Court explained that the Supreme Court of Nevada articulated the applicable legal standards governing appellate review of a district court’s denial of a motion for a new trial based on alleged attorney misconduct. Determining whether a new trial is warranted involves the application of a three-step analysis. First, the court must determine whether misconduct occurred. Whether an attorney’s comments constitute misconduct is a question of law reviewed on appeal de novo. If such misconduct has occurred, the next step is to determine the proper legal standard to apply in assessing whether the misconduct warrants a new trial. Finally, the court must determine whether the district court abused its discretion in applying that standard.
The Court further explained that when a party claims misconduct by opposing counsel, the legal standard under which that misconduct is reviewed depends on whether a timely trial objection was made. When a timely objection was not made at trial, any review of that misconduct, either post-trial by the trial court or on appeal, is considerably more circumscribed than if an objection was made. When resolving a motion for a new trial based on unobjected-to attorney misconduct, the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists. To decide whether there is plain error, the district court must then determine whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error. And in the context of unobjected-to attorney misconduct, irreparable and fundamental error is error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different. Thus, the Court explained that in this case, because no objection was lodged at trial, a new trial would only be warranted if Pentair committed misconduct and the misconduct amounted to plain error.
The Court noted that plain error requires a party to show that no other reasonable explanation for the verdict exists. Analyzing whether such plain error has occurred involves weighing the misconduct against the reasonableness of the jury’s verdict in light of the evidence in the record. Moreover, the court must consider the context in which the misconduct occurred.
The Court explained that a determination of whether unobjected-to misconduct has created plain error requires balancing the severity of the misconduct against the weight of the evidence supporting the jury’s verdict. In doing so, however, the court must bear in mind that credibility determinations and the weighing of evidence are left to the trier of fact. Where the record demonstrates that the jury’s verdict is strongly supported by overwhelming evidence, the verdict can generally be explained by the evidence itself and even serious misconduct may not warrant a new trial. On the other hand, where the evidence in the record is insufficient to reasonably explain the jury’s verdict even when viewed in the light most favorable to the prevailing party, or if it does so only very weakly or implausibly, then trial misconduct is likely to have resulted in fundamental error, because in those circumstances the jury’s verdict was more likely to have been a product of the misconduct rather than of a fair consideration of the evidence presented.
Furthermore, the Court explained that it must consider the context of the misconduct. Misconduct that was largely collateral to the principal issues in dispute is less likely to have resulted in plain error than misconduct that touched directly upon the central questions the jury was asked to resolve. By way of hypothetical example, Nevada Rule of Professional Conduct (RPC) 3.4(e) prohibits an attorney from stating a personal opinion as to the credibility of a witness. When an attorney improperly vouches for the credibility of an inconsequential witness whose testimony related to a collateral issue and whose credibility was never attacked by the opposing party, such misconduct likely played a lesser role in the jury’s verdict than if the attorney vouched for a witness whose credibility was directly challenged and whose truthfulness regarding a key issue was the principal or sole question for the jury’s consideration. Similarly, vouching for the credibility of a witness whose testimony was largely cumulative to other evidence or irrelevant to the main issues in genuine dispute is less likely, in context, to warrant a new trial than if the witness’ testimony were the only evidence supporting a key contention.
The Court noted that the frequency of the misconduct must be considered. A single, isolated instance of misconduct is likely to have had a lesser impact on the trial than repeated or persistent instances of misconduct. Thus, determining whether plain error has occurred as a result of unobjected-to misconduct requires the court to closely examine the record, weigh the severity and persistence of the misconduct against the evidence presented, and assess what role, if any, the misconduct likely played in the jury’s verdict.
Overview of products liability law
The Court explained that because alleged attorney misconduct must be evaluated in context, a brief examination of the substantive law that governed the trial was necessary. On appeal, the only claim remaining before the Court was the products liability claim, which is a strict liability claim. In Nevada, a manufacturer or distributor of a product is strictly liable for injuries resulting from a defect in the product that was present when the product left its hands. Products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function. Reasonableness may be determined with reference to such things as whether a safer design was possible or feasible, whether safer alternatives are commercially available, and other factors.
Furthermore, manufacturers are not necessarily liable for injuries caused by a product that was substantially modified or misused by the consumer or by an intermediary. Generally, a substantial alteration will shield a manufacturer from liability for injury that results from that alteration, but a product manufacturer remains liable if the alteration was insubstantial, foreseeable, or did not actually cause the injury.
When the risk of danger associated with a product is such that it cannot be corrected or mitigated by a commercially feasible change in the product’s design available at the time the product was placed in the stream of commerce, the manufacturer must give adequate warning to consumers of the potential danger. Where a plaintiff alleges that such warnings were not adequately given, the plaintiff carries the burden of proving, in part, that the inadequate warning caused his injuries.
Michaels’ assertion of attorney misconduct
Michaels argued that, during closing argument, Pentair’s counsel made various impermissible statements that were not based in evidence or that reflected the personal opinion of counsel. Michaels’ counsel did not timely object to any of the statements cited as error on appeal.
The Court explained that in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), the Supreme Court of Nevada directed district courts confronted with post-trial motions alleging attorney misconduct:
[W]e now require that, when deciding a motion for a new trial, the district court must make specific findings, both on the record during oral proceedings and in its order, with regard to its application of the standards described above to the facts of the cases before it. In doing so, the court enables our review of its exercise of discretion in denying or granting a motion for a new trial.
The Court believed that conceivably, in some cases in which a district court fails to make requisite findings in support of a decision, that decision may nonetheless be affirmed on appeal if the record as a whole demonstrates that the ultimate conclusion was correct even if the reasons for it are not clearly articulated. For example, if the most cursory review of the briefs or the record clearly demonstrates that no misconduct occurred as a matter of law, then a remand for the district court to simply state the obvious would seem wasteful and unnecessary. During oral argument, Pentair’s counsel suggested that a remand in this case was unnecessary for precisely this reason. The Court noted that had its review of the record in this case clearly indicated either that no misconduct occurred, or that any attorney misconduct that occurred could not possibly have affected the jury’s verdict, then it could perhaps resolve the appeal based upon the record alone without the need for additional findings by the district court.
However, the Court explained that the record revealed that Pentair’s attorney made a variety of statements during closing argument that could plausibly constitute the kind of attorney misconduct that concerned the Nevada Supreme Court in Lioce. For example, Pentair’s counsel appeared to vouch for a witness, Dr. Casey (Michaels’ treating physician who contradicted Michaels’ version of events), by stating that “I think he is a credible and honest witness.” Counsel also appeared to offer opinions about other witnesses, including witnesses from Pool Chlor, stating “I don’t know about you, but I know what I thought about those people’s testimony.” The Court believed that by offering personal opinions about the credibility of witnesses, Pentair’s counsel may have violated RPC 3.4(e), which states that, during the course of a trial, an attorney shall not state a personal opinion as to the credibility of a witness. The district court’s written order failed to indicate whether the court fully considered these arguments, whether it concluded that they did not constitute misconduct, or whether it instead concluded that they represented misconduct but that no fundamental error occurred.
The Court pointed out another instance of potential misconduct appeared to occur in relation to the adverse inference jury instruction given by the trial court. An adverse inference instruction may be given when a district court concludes that particular evidence was negligently destroyed. The adverse inference instruction merely allows the fact-finder to determine, based on other evidence, that a fact exists. The adverse inference instruction in this case was given by the court as a sanction for very specific conduct, namely, Michaels’ negligent disposal of pieces of the filter system before trial. But during closing argument, Pentair’s counsel appeared to invite the jury to apply this instruction to other evidence that had no relation either to the discovery violation, the district court’s sanction, or the purpose of the instruction given by the court. Specifically, Pentair’s counsel argued that the adverse inference instruction applied to a plumbing expert that Michaels purportedly retained. Counsel argued:
There is another expert they didn’t bring in, where you could think that maybe that expert wasn’t going to say good things. Who did the plaintiffs call, the plaintiffs lawyer, right after the accident to come and take [pictures]. I don’t remember the gentleman’s name, but he was a plumbing expert. That much I remember. Remember Mr. Kesky. I played his deposition. . . . He said [that he] discussed the plumbing issues with the expert. But did the plaintiffs bring him in here. . . . Is there a reason for that. I remind you of the instruction, where the plaintiffs have the evidence, because they are the only ones in control of that expert, he was the one that has his investigator there, not us, Pentair had no chance at any of this, you take it against [Michaels].
However, the Court noted the record did not appear to indicate that any such plumbing expert was ever retained by Michaels; the district court did not make any findings on this question. Furthermore, even if a plumbing expert had been retained, counsel’s invitation for the jury to apply the adverse inference instruction to Michaels’ failure to call that witness was problematic because the adverse inference instruction was not given as a sanction for that conduct.
Consequently, the Court could not conclude from the record that attorney misconduct was so clearly absent from the trial that additional findings by the district court would be superfluous and unnecessary. The Court also could not conclude that the instances of potential misconduct that appeared in the record were necessarily so minor or irrelevant that they must be found by the district court to have played no role whatsoever in the jury’s verdict. The Court believed that in this case, the jury found in favor of Pentair, but the evidence supporting that verdict was far from overwhelming or clear. Several of Pentair’s witnesses conceded the essential points that Pentair knew of prior explosions occurring in split-shell filters and that safer alternatives to such filter designs were commercially feasible. Similarly, Pentair did not present any substantive evidence that Michaels unforeseeably misused or modified the FNS filter in any way. Rather, in the absence of substantive evidence, Pentair invited the jury to infer that such unforeseeable modifications might have happened because some pieces of the filter system were missing and because the testimony of Michaels’ witnesses was supposedly not credible. Thus, at least some of the apparent misconduct in this case related to the heart of Pentair’s defense strategy and to the most important questions the jury was asked to answer. Under these circumstances, the Court could not conclude that the alleged misconduct related only to matters of no consequence and could not possibly have resulted in fundamental injustice. Thus, the Court explained that the record indicated that misconduct could be deemed to have occurred, and that the evidence supporting the products liability verdict was weak. However, in the absence of detailed findings, the Court could not determine whether no other reasonable explanation exists for the verdict but the alleged misconduct.
The Court explained that had the district court engaged in a comprehensive analysis, it could have concluded that misconduct occurred and that the misconduct was both severe and repeated. Furthermore, when viewed in context, the district court could have concluded that the misconduct played a critical role in the case.
Accordingly, the Court explained the record in this case was not so clear that detailed findings by the district court are clearly unnecessary. Furthermore, the district court failed to engage in the exercise of making specific and detailed findings. Had such detailed findings been made, the Court noted it could more easily determine whether precedent would have affected the district court’s analysis. Therefore, the Court remanded the matter to the district court for additional findings and further direct the district court to reconsider its conclusion.
The Court explained that on remand, the district court must clarify, at a minimum, whether it found that no misconduct occurred or rather whether it concluded that misconduct did occur but was harmless under the standards of Lioce in view of: (1) the nature of the claims and defenses asserted by the parties; (2) the relative strength of the evidence presented by the parties; (3) the facts and evidence that were either disputed or not substantively disputed during the trial; (4) the type, severity, and scope of any attorney misconduct; (5) whether any misconduct was isolated and incidental on the one hand or repeated and persistent on the other; (6) the context in which any misconduct occurred; (7) the relationship of any misconduct to the parties’ evidence and arguments; and (8) any other relevant considerations.
The Court further explained that in reviewing these factors, the district court’s ultimate goal is to assess whether any misconduct offsets the evidence adduced at trial such that no other reasonable explanation for the verdict exists but that it was the product of the misconduct. In doing so, the district court must assume that the jury believed all of the evidence favorable to the party against whom the motion is made. Nevertheless, when serious and repeated attorney misconduct has demonstrably occurred, the district court’s deference to the jury is more limited than if such misconduct had not occurred, and the trial court must carefully consider whether the misconduct led the jury astray and caused it to base its verdict upon something other than the evidence and the applicable law.