04/22/2013 // Concord, CA, USA // LifeCare123 // Greg Vigna, MD, JD, Joe Motta, JD // (press release)

This is a follow up on the article authored by my colleague, Greg Rueb, Esq., on March 20, 2013: “Catastrophic Accident Lawyer on Government Contractor Product Liability Lawsuits”.

Questions remain unanswered, and may go unanswered for some time in the mortar “misfire” accident at Hawthorne Army Depot in Nevada that killed seven and injured eight Marines on March 18, 2013. There continues to be a Marine Corps ban on the use of the type of mortars used in the accidental “misfire”.

Military officials have been hush so far during their investigation regarding the events prior to the accident. But experts and veterans opine that it was either human error or a weapons failure. Long a mainstay of modern warfare, the 60 mm mortar has been used for years, its heritage going back to WWII. It has long been considered a reliable weapon in the field. Defects in the device have occurred in the past causing death and injury to military personnel. Courts have held that manufacturers will be strictly liable for all harm if a product is manufactured defectively that makes it unreasonably dangerous for its intended use. The latest version had some design changes to the tripod and the tube, which some think, may be the cause of the accident, but more notably, most experts will argue that it was a manufacturing defect of the mortar or ammunition itself.

In the case of the latter, a manufacturing defect can expose the company that manufactured the product to liability for this unfortunate and horrific accident. USMC Lt. Col. Andrew J. McNulty’s statement regarding the incident is the most telling so far, “We lost seven Marines in a training accident where it appears that a 60mm mortar system failed to function as designed.”

Those who are near and dear to those killed and injured are waiting for the results of the military investigation; they need a full and complete explanation of this horrific event. If the investigation concludes that there was a manufacturing defect then the families should be able to obtain proper and what the court would determine as “full” redress for all damages incurred from the manufacturer of the device. If the conclusions by the military fail to find evidence of neither a manufacturing defect nor improper handling and use of the device, then there may be alternative theories of liability.

For example, there is a doctrine in law called res ipsa loquitur, which in Latin means, “the thing speaks for itself”. The are certain cases, like unexpected explosions, where simply the plaintiff can’t or shouldn’t have to prove a negligent act on the part of the defendant; under this rule jury is allowed to infer negligence on the part of the defendant when: 1) the occurrence ordinarily doesn’t occur in the absence of negligence; 2) the instrument that caused the injury was within the defendant’s exclusive control; and 3) there is no indication that the injury was the result of the plaintiff’s own voluntary act.

The classic example is the case in England in 1863 where a passerby was injured by a falling barrel of flour from a window of a flour merchant. The injured passerby could not show who specifically was negligent because of a lack of facts known to the plaintiff but was able to prove the inference of negligence to get the question of negligence to the jury. The doctrine does not shift the burden of persuasion but the defendant is required to offer some other alternative explanation for the cause of the accident. Courts have held, if the instrumentality has left control of the defendant, the res ipsa loquitur doctrine is applicable if the plaintiff can present evidence that the instrumentality that caused the harm was handled properly and the condition of the instrumentality was not changed after it left the control of the defendant.

This can be an effective and persuasive tool for those injured and those near and dear to those who were killed. From what little is known, the mortar itself has been destroyed and so proving a defect in the mortar may be a challenge. It is hard to predict where the investigation may go or what it may yield. Regardless of the outcome, the circumstances that have thus far been made public confirms res ipsa loquitur may be a viable option when considering a lawsuit.

Res Ipsa Loquitor has been applied in explosion cases and is now accepted in a majority of States in strict product liability cases. Strict product liability will not look at potential negligent conduct of the plaintiff in a product liability case and will look to the defect itself that makes it unreasonably dangerous and causes the harm. This test is referred to the “indeterminate product defect test”. A “plaintiff need not prove a specific defect in the chair if he can establish that the incident that harmed him is of the kind that ordinarily occurs as a result of a product defect, and that the incident was not solely the result of causes other than product defect existing at the time the instrumentality left the control of the manufacturer”. In the case of the “misfired” mortar explosion, if the investigation confirms the explosion occurred inside the tubing or immediately after discharge from the tubing, this would make for a strong argument there was a manufacturing defect in the ammunition itself.

This author cannot imagine the pain that this horrific accident has left in its wake. The mortar “misfire” explosion presents several challenges to everyone who was directly or indirectly victimized. Some of the theories of liability described above (Res Ipsa Loquitor/ Strict Product Liability) may be the path to those injured as well as to the survivors of those killed. To the injured, a comprehensive life care plan would be one of the essential first steps to ensure a greater opportunity to rebuild their lives by utilizing state of the art medical care, rehabilitation, vocational counseling, and psychological support. To the survivors of those beloved Marines we lost, those theories may be the basis to support a wrongful death action as well.

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