Julie Andrews Still Photo From The Sound of Music
Regular and long-time readers of Minnesota Litigator will remember our TAAFOMFT series (“These are a few of my favorite things….”) in which we engage in the fine art of whining via irony. We complain about aspects of the practice of civil litigation that we like the least. (We view it as a good sign that we have not had any TAAFOMFT posts for some time now.)
We recently stumbled on a ruling in Wing Enterprises, Inc. d/b/a Little Giant Ladder Systems v. Tricam Industries, that brought us a touch of nausea, the physical manifestation that most commonly accompanies our favorite things.
The dispute centers around the label that you’ll see after the jump.
Plaintiff brought a lawsuit arguing that this label is false and misleading because, Plaintiff argues, Defendant’s metal ladder to which this label was attached allegedly does not, in fact, meet the “ANSI” standard. (ANSI is the American National Standards Institute, a private standard-setting organization.)
Defendant, in response to the claim, highlighted that Plaintiff did NOT expressly allege that the failure to conform with OSHA (the Occupational Safety and Health Agency, a public regulator body). Therefore, Defendant argued, Plaintiff’s analysis of customer survey data about consumer decision-making was methodologically flawed. Defendant’s expert takes the position that Plaintiff’s failure “to isolate the representations about ANSI – as compared to OSHA – in the ANSI Label Statement prevents any analysis of whether consumers tended to be deceived by the alleged false or misleading statements and whether any possible deception was material to consumers.”
In other words, Defendant appears to be arguing that Plaintiff only objects to the ANSI standard conformance as an allegedly false statement. In theory, consumers could attach importance to the certification of OSHA compliance but not care one way or another about ANSI A 14.2 code compliance. And, Defendant seems to be arguing, Plaintiff has not plead nor provided evidence that Defendant’s ladders fail to conform to OSHA standards.
When Plaintiff learned of this position of the Defendant, it sought to amend its position in the case ever so slightly, to suggest that the label was false and misleading regarding both ANSI and OSHA compliance. Defendant objected, arguing that it was too late to make the change. U.S. District Court Magistrate Judge Elizabeth C. Wright (D. Minn.) agreed with the Defendant and issued an order precluding such a change in position (if it is, really, a change).
The interplay between OSHA and ANSI can be complicated. Sometimes OSHA expressly incorporates specific ANSI standards. Sometimes OSHA can require adherence to ANSI standards through the General Duty Clause, which states, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards…” So, whether something can be ANSI-non-compliant and OSHA compliant is non-obvious.
Presumably, Plaintiff’s position is that the claim, “Manufacturer certifies conformance to OSHA ANSI A 14.2 Code for Metal Ladders” is false because the ladder at issue supposedly does not comply with ANSI A 14.2 and, therefore, does not comply with OSHA. But, apparently, that argument was made implicitly, not explicitly, and now Plaintiff’s case could be in jeopardy because of that.
Presumably, Plaintiff will take this up with U.S. District Court Judge Eric C. Tostrud (D. Minn.).
Maybe Plaintiff’s counsel will be able to recover from this frustrating overlooked detail (at least from Mag. Judge Wright’s point of view)…. Stay tuned…