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In re Shigellosis Litigation6/18/2002
rsley to be deemed the "manufacturer" of the parsley. That determination was premature and rejected by the jury.
The statutory language contemplates that: (1) a seller will certify the correct identity of the manufacturer; (2) the plaintiff (i.e., the affected consumers) or the certifying defendant will join the identified manufacturer; and (3) strict-liability claims will be dismissed against the certifying defendant. Minn. Stat. ยง 544.41, subds. 1, 2. The manufacturer identified by Bix was not joined in the litigation. We reverse summary judgment for Bix and hold that Bix remains potentially liable on the outstanding contribution claims against it.
At the same time the district court granted Bix's motion, the district court denied Horse & Hunt's motion for dismissal under the seller's exception because a "substantial" factual dispute remained on who manufactured the contaminated parsley. The existence of the factual dispute over the identity of the manufacturer, together with the failure to require service on Grupo Pas, underscores the premature nature of the dismissal. The seller's-exception statute allows a nonmanufacturing defendant who did not contribute to the alleged defect to defer strict liability to the manufacturer, but it does not permit the seller to avoid responsibility when the manufacturer cannot be sued.
II.
Horse & Hunt contends that it is entitled to a new trial on its contribution claim against Sunridge because of jury-instruction error on ordinary negligence. It argues that the district court failed to instruct the jury that a seller may be negligent and failed to include a special-verdict question on the negligence of Sunridge as seller. In evaluating a motion for a new trial, the district court must consider both the claimed error and whether prejudice has resulted to the moving party. See Meagher v. Kavli, 256 Minn. 54, 61-62, 97 N.W.2d 370, 375-76 (1959).
In declining to grant a new trial, the district court stated that Horse & Hunt had never advanced the theory that Sunridge was negligent in its role as seller but had only maintained that Sunridge was the manufacturer of the parsley. The record does not support that characterization. Although Horse & Hunt, in its summary judgment motion, claimed that Sunridge manufactured the parsley, Horse & Hunt also indicated its intent to establish Sunridge's liability to the affected consumers on alternative theories.
In submitting its trial materials, Horse & Hunt requested a jury instruction under CIVJIG 75.35, Duty of the Manufacturer or Seller to Use Reasonable Care, which instructs the jury that a manufacturer or seller must use reasonable care in the manufacture, assembly, inspection, packaging, and testing of a product. 4A Minnesota Practice, CIVJIG 75.35 (1999). Consistent with this requested jury instruction, Horse & Horse also requested a corresponding question on the special verdict asking whether Sunridge Farms was negligent in manufacturing, assembling, inspecting, packaging, or testing the parsley to protect consumers. In addition, Horse & Hunt indicated several times during in-chambers discussions that it was proceeding on contribution-and-indemnity claims against Sunridge both as manufacturer and seller.
Even though Horse & Hunt preserved its objection for failure to instruct on negligence, we are not persuaded that the district court erred in denying it. We agree that a seller may have independent fault under negligence principles if the seller breached a duty to the injured party. See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729-30 (Minn. 1990) (holding evidence supported finding of negligence against seller
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