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HAWKS v. EPI PRODUCTS USA9/19/1996
THE COURT'S PRIOR OPINION DATED JULY 31, 1996 IS HEREBY WITHDRAWN
This is an appeal from a judgment entered following a jury trial in a products liability action. The defendants/appellants, EPI Products U.S.A., Inc. (EPI), Fred Meyer, Inc. (Fred Meyer), and Mepro Electric, Inc. (Mepro), appeal the district court's determination that EPI is a manufacturer pursuant to section 6-1402(2) of the Idaho Code. The appellants also challenge the trial court's exclusion of an expert witness's testimony, as well as the court's admission of testimony from a witness regarding a similar prior products liability claim. In a cross-appeal the plaintiff/respondent, Frances S. Hawks (Hawks): (1) challenges the trial court's determination that Fred Meyer is immune from direct liability pursuant to section 6-1407(1) of the Idaho Code; (2) challenges the trial
court's denial of her motion to amend her complaint to add a claim under the Idaho Consumer Protection Act (ICPA) and a claim for punitive damages; and (3) requests attorney fees on appeal pursuant to Rule 41 of the Idaho Appellate Rules (I.A.R.). However, Hawks has proposed waiving the claims on the cross-appeal, except for the claim involving Fred Meyer's immunity from liability, if this Court upholds the jury verdict with or without a five (5) percent reduction in the verdict resulting from a post-trial ruling of the district court.
I.
BACKGROUND
Hawks was injured by using an "Epilady" depilatory device which is designed to remove body hair from the arms and legs by pulling it out by the roots. The Epilady device was designed and developed by Mepro, which is based in Israel. In May of 1986, Mepro contracted with Frank Riedy (Riedy), president of McClees Associates, to develop a marketing plan for the sale of the Epilady in the United States. Riedy developed a marketing plan, and EPI Products obtained the rights to the product in the United States soon thereafter. The Memorandum of Understanding between EPI and Mepro stipulated that the manufacturing of the Epilady was to be "carried out by a company, jointly and equally owned by the parties." At or about the time Mepro and EPI entered into this agreement, McClees and Associates began working jointly for Mepro and EPI.
In anticipation of marketing the product in the United States, Riedy arranged for TKL Research to test the "safety and efficacy" of the Epilady. The testing was done for the joint benefit of EPI and Mepro, and was paid for by Mepro. The testing was done in three phases and was completed by August of 1987, at which time marketing of the product in the United States began.
The TKL study was based on a test group of 150 women, specifically excluding women with a past or present history of allergic reactions to depilatories, eczema, dermatitis, or psoriasis, as well as those who experienced any skin reactions within two weeks of study entry. The test concluded that, " o unexpected or clinically significant dermatologic conditions were observed. Undesirable sensations which were primarily reported after the first epilation diminished with each successive use." TKL recommended that Epilady customers be forewarned about the potential for ingrown hairs and instructed as to the proper corrective measures in product demonstrations. TKL also advised EPI that package instructions alone would be inadequate and would likely result in widespread customer dissatisfaction. Based on a "relatively high incidence of ingrown hairs and a low incidence of folliculitis," in study subjects who were thoroughly briefed on the proper use of the product and treatment of potential problems, TKL strongly endorsed EPI's plan to provide in-store dem
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