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Mustang
climber
From the wild, not the ranch
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May 23, 2011 - 11:02pm PT
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Pretty sure this case falls under the FTC, Uniform Commercial Code, U.C.C. article 2.
"Implied Merchantability"
Seller basically enters into a binding contract with buyer that implies the item sold, whether it is food, or goods, intrinsically will not harm the user when the item used or consumed within ordinary use.
http://www.caddenfuller.com/CM/Articles/Articles34.asp
short and succinct.
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madbolter1
Big Wall climber
Walla Walla, WA
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May 23, 2011 - 11:58pm PT
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Read excerpt from the brief a few posts above, Rile. REI inspected the bike and found no other damage. If said inspection and the "no other damage" report is in fact substantiated, the "smoking gun" IS in REI's hands.
It is often the case that careful reading before talking/writing can save you from spewing your own nonsense. Highly recommended!
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 24, 2011 - 12:04am PT
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Granite- that is interesting.
I had read a back tire...
And read other arguments to to effect..
Monika's brief says it was the front wheel but the Court of Appeals decision mentions a report that says it was the back wheel. That may have been where you saw that.
See p. 4 http://www.courts.wa.gov/opinions/pdf/65463-2.pub.doc.pdf
Mitchell further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “if an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 17
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John Moosie
climber
Beautiful California
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May 24, 2011 - 12:06am PT
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I don't understand why you guys seem to be blowing off the report that Monika paid for. The one that said there was insufficient glue and layers of carbon fiber.
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JEleazarian
Trad climber
Fresno CA
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May 24, 2011 - 02:08am PT
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This thread fascinates me. A lot of REI defenders are normally in the "businesses are bad" camp, and a lot of REI deteractors, like me, are normally in the "businesses are good" one.
Was Perkins, Coie in this case from the beginning? The resaon I ask is that I've worked with them in several matters, and they are first-rate lawyers who, I suspect, also have first-rate billing rates. Insurance companies are notorious for paying low hourly rates, and often (though certainly not always, in a lower-rate area like Fresno) get what they pay for.
I've seen several defendants win tort cases on summary judgment, but very seldom have I seen a plaintiff do so. Aside from the issue of REI standing behind its products and services, it sounds to me like REI also got out-lawyered. It's inconceivable that they had no evidence to present on the summary judgment motion to dispute a finding of a defective product on a used bicycle. If they really thought it wasn't their fault, but failed to present their evidence in response to the summary judgment motion, someone was asleep at the discovery switch. I wouldn't expect Perkins, Coie to be asleep there or then.
Just curious, so I'll read the appellate briefs to see.
John
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Mangy Peasant
Social climber
Riverside, CA
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May 24, 2011 - 07:54am PT
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By any chance, R Wyna/gc/M Peasant/et. al., are you one of those former REI employees who left the company under unfortunate or embarassing circumstances?
John, so you've decided to join the circle jerk?
Never worked there, rarely shop there (read the whole thread next time.)
So how about some disclosure from your end John - are you perhaps in a similar line of business as REI?
Dave
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Ain't no flatlander
climber
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May 24, 2011 - 10:40am PT
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I don't understand why you guys seem to be blowing off the report that Monika paid for. The one that said there was insufficient glue and layers of carbon fiber.
Because you can get a paid expert to find any conclusion you want. Doesn't mean it's correct. I'm sure the same expert would say our carabiners are under-designed for climbing too.
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blahblah
Gym climber
Boulder
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May 24, 2011 - 11:02am PT
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Riley, perhaps this is the section of REI's brief to which you're referring:
Johnson purchased the fork over two years before the accident.
During that time, the bicycle was struck in traffic by a moving car. As
Mitchell testified by declaration, this case involves "a bicycle that had
been subjected to substantial use and abuse. It was clearly a high mileage
vehicle displaying substantial wear and tear[.]" (CP 176.) The bicycle
"exhibited significant wear and lack of maintenance." (Id.) At the time
the trial court decided the causation issue as a matter of law, there was
"insufficient information to rule out the accumulation of prior damage to
the front fork as the cause of the ultimate fork separation." (CP 178.)
Under these circumstances, the trier of fact should have been permitted to
weigh the conflicting evidence and decide how an ordinary consumer
would expect a carbon fiber fork to perform after it had been subjected to
heavy use and abuse for more than two years, including a traffic accident
in which it was struck by a moving car. Taking that issue away from the
jury was clear error.
(That's from REI's Sep. 27, 2010 brief, p. 39).
What's going on is that REI is arguing that it should have been allowed to argue causation to a jury, but was not allowed to do so because the judge decided that issue on summary judgment.
There's been no jury in this case because there's been no trial yet--so far, the judge has been deciding certain issues as a matter of law, and the Court of Appeals has upheld those decisions. I can see how the brief makes it seem like there is in fact an existing jury (the reference is to "the jury"), but that's not the case.
If the parties don't settle, there will be a trial to determine damages, and that will be decided by a jury (assuming either party asked for a jury--plaintiff, at least, almost certainly did). Remember most cases settle, even after there has been some preliminary litigation.
Unfortunately, it doesn't seem that Washington puts pleadings from its trial courts online, so the only way to get more insight as to whether Perkins Coie was handling the case from the beginning, etc., is to contact the court and get copies of desired pleadings. That's not particularly difficult, but it's not free and is a bit of a time suck.
If I'm wrong and we can get pleadings from the trial court online for (for free or nominal cost), someone let me know--I'm sure we can have hundreds of new and interesting posts after we review those docs!
(I do have a bit more sympathy for REI after reading its appellate brief, and I can't say I really have a good handle on why the judge decided this case in light of REI's seemingly reasonable request for discovery. But I didn't read Monika's brief, and reading just one side's brief is a terrible way to get a handle on what' going on.)
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apogee
climber
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May 24, 2011 - 12:37pm PT
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MP, believe-you-me, if I had had access to my computer somewhere near the start of this thread, I'd have been right in there...at least for a while. At this point, though, this thread (like so many others, esp. my beloved polititard threads) has become a(nother) pointless circular rant.
My background, you ask? Well, I have a longstanding history here at ST of championing the smaller, local outdoor retailer, and US/Canadian/etc.-made outdoor retail products in general. I have been involved in the outdoor/adventure education industry for most of my professional life. As many here can attest, I have been a detractor of the advent of big-box outdoor retail, offshore manufacturing, and the dilution of the ideals of adventure education, and there are lots of posts here that illustrate this.
Ironically, from what I can glean from the few objective facts that have been presented in this thread, combined with the rational, qualified legal views of a very few (JE & KM), I find myself somewhat in REI's corner on this one- an odd place to be for me. The fact is that even the REI big-box is relatively small potatoes in the realm of the insurance industry, and the norm for liability cases is for the insurance company to manage the legal interactions, and make the decisions about whether/how to pursue or defend against litigation. This is unfortunate, because even an organization (the insured) with the highest ideals will be pushed aside as the issue is taken from their hands by the insurance company. Even if REI had wanted to take a different approach with Monika (and they may well have), it was a moot point.
At this point in this thread's life, I get the distinct impression that there is an underlying anti-REI motivation that is driving this exercise in dead-horse-beating and wild-assed uninformed speculation. This happens here at ST from time to time, and there are a few (yep, myself included) who have had unfortunate professional or employment histories with REI who jump at the chance to be REI-hatin' when given the chance. The persistence of some of these posters brought me to ask about their backgrounds, as this thread now seems to be driven by some unstated, underlying motivations.
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JEleazarian
Trad climber
Fresno CA
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May 24, 2011 - 02:06pm PT
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Mangy Peasant,
I gave my opinions about REI much earlier in this thread. To spare you trying to find it, I resent its yuppification, and its second-rate selection of climbing gear -- particularly at their Fresno store. I'm an econometrician, but I also practiced law for about 30 years, and have been involved in plenty of summary judgment motions in the commercial law context.
Again, the issue to me isn't in the courtroom. For whatever reason, REI didn't do the discovery it should have soon enough, and the trial court granted summary judgment on liability in the plaintiff's favor. The Court of Appeals affirmed, and the case may or may not be heard by the Washington Supreme Court. Denial of a continuance to obtain additional discovery is in the discretion of the trial court, and REI has a very difficult road to travel on appeal.
The issue remains whether REI was standing behind its product both before the suit, and in the suit. To me, saying "yeah we sold it, but it wasn't our fault that it broke" is a rather weak endorsement of its product. If exotic forks have a very brief service life, REI should say so. If not, it should man up.
John
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blahblah
Gym climber
Boulder
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May 24, 2011 - 03:05pm PT
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For whatever reason, REI didn't do the discovery it should have soon enough, and the trial court granted summary judgment on liability in the plaintiff's favor. The Court of Appeals affirmed, and the case may or may not be heard by the Washington Supreme Court. Denial of a continuance to obtain additional discovery is in the discretion of the trial court, and REI has a very difficult road to travel on appeal.
That's hard to say--as an interesting plot twist, the Court of Appeals refused to address the discovery issues at all:
REI additionally contends that the trial court erred by denying REI’s request to conduct additional discovery prior to the summary judgment ruling. Because discretionary review was not granted on this issue, we will not reach it. City of Bothell v. Barnhart, 156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (noting that, pursuant to RAP 2.3(e), the appellate court may specify the issue or issues as to which discretionary review is granted), review granted, No. 84907-2
(Wash. Nov. 3, 2010).
(The above is from n.7 of the Court of Appeals decision.)
So while I agree that the trial court found that REI didn't timely conduct the discovery it later claimed that it wanted to take, I don't think it's quite accurate to say that Court of Appeals affirmed the trial court on that point. But I do agree that an appeal on the basis that the trial court abused it's discretion re: discovery sounds like a long shot.
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Mangy Peasant
Social climber
Riverside, CA
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May 24, 2011 - 05:55pm PT
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John E: My last question was actually for apogee (another John), but I appreciate your response.
I understand what you mean about "yuppification" - I get that sense as well when I'm in an REI these days, but I try and remind myself not to be bothered by these sorts of superficial things.
Apogee: Thanks for your response as well. I think we are actually in violent agreement on this one.
This thread definitely got carried away with some folks playing amateur lawyer. People like to do that. It's fun. Perhaps it contributes to a little "clutter" on ST's front page, but we're plenty used to that.
I'm not really so interested in the legal/courtroom aspect of the issue.
My issue with the OP's original posting is this:
There are really two cases going on here. One is a complicated legal case involving outsourced manufacturing, insurance companies, etc. REI will probably lose. They will pay compensation as required by law, and justice will be served, as best it can be by financial compensation in these situations.
The other "trial" going on here is one that the OP is attempting to manufacture by trying REI in the court of public opinion. Like I said earlier: The OP accuses REI of being an unethical organization, gives one side of the evidence, issues the verdict, and expects all of us to carry out the sentence (by not shopping at REI.) I don't think this is an appropriate way to present this situation.
As a juror in the court of public opinion - we all get to decide in this court - I see plenty of "reasonable doubt" regarding REI's "guilt" to the charges of lack of ethics. So, until I see evidence of a pattern of greed/corruption/callousness from REI in other situations as well, my attitude toward the chain isn't going to change. I believe others should apply the same standard.
Dave
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John Moosie
climber
Beautiful California
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May 24, 2011 - 06:33pm PT
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(by not shopping at REI.)
She did no such thing. This is the third time you have overstate her position. I think the title of the thread is inflammatory, but her posts have not been. She did go after Riley, but I believe that was out of frustration at all the times she has been sneered at on this thread. And by how many different people, including you, have overstated her position.
At no point can I find anyplace where the OP suggest that you do anything other then come to your own conclusion. She stated her position, you are free to state yours. Argue her point that REI has shirked its responsibility, but don't put words in her mouth, don't belittle her just because you disagree with her, and stop the nonsense that only a lawyer could understand this. Rankin started out with a good cogent point, but then added in that the OP was childish. You have implied more then once that only a lawyer could understand this. And so have others with snide comments such as "jailhouse lawyer".
The funny part was that Rankin boiled this down and put it into words that anyone could understand, and yet we are suppose to think that only a lawyer could understand this.
I started out agreeing with Reddirt, but Atch brought up a good point and I now I have some misgivings. I still think REI has dropped the ball until I hear from them that they made an offer that was refused. But this accident happened in 2007. How long does it take for them to get an expert to figure any of this out?
REI bills itself as a co op. Its not really, but thats how it portrays itself. If it is a co op, then its members should have a say in how it handles itself. I can't come to a conclusion about what I think about this situation, until I understand it better, but I do know that overstating the OPs position serves nothing.
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Rankin
Social climber
Greensboro, North Carolina
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May 24, 2011 - 07:18pm PT
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And just because you are only watching doesn't mean you aren't a perv also.
Pretty funny Mangy, but I'm not only watching. I have made contributions to the discussion. Just don't think there is much more to be said. I think it's hilarious how people get so wrapped up in a thread that mostly consists of repetitive bickering. Has anyone posted a photo of someone beating a dead horse yet? If not, they should.
Also, I'm not a "perv." But if I was, this would be last place I'd come. I stop by occasionally to see if:
(a) anyone I know has croaked; or
(b) one of my heroes has something to say (eg Largo, WBraun, Mark Hudon, etc); or
(c) Russ Walling is still the funniest human alive (I know that he is, but I like to check); or
(d) God forbid, there is actually a cool thread about climbing
Just in case you missed it, perving is not on the list. However, if there is an influx of hotties posting pics, this could change. :)
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 03:23pm PT
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here are really two cases going on here. One is a complicated legal case involving outsourced manufacturing, insurance companies, etc. REI will probably lose. They will pay compensation as required by law, and justice will be served, as best it can be by financial compensation in these situations.
The other "trial" going on here is one that the OP is attempting to manufacture by trying REI in the court of public opinion. Like I said earlier: The OP accuses REI of being an unethical organization, gives one side of the evidence, issues the verdict, and expects all of us to carry out the sentence (by not shopping at REI.) I don't think this is an appropriate way to present this situation.
As a juror in the court of public opinion - we all get to decide in this court
This describes the situation.
We each get to decide. I do not think they are worse than other organizations, but they are not as good as they would have us believe. In other words, they are just another big amoral corporation, no worse than their competitors, but probably not worse either.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 03:47pm PT
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I sent this to REI:
Hi, I've read a lot about REI's litigation with Monika Johnson.
Is REI in control of its own defense of this, or is an insurance company in the driver's seat?
Thanks!
REI' response:
Monika Johnson was highly regarded in the outdoor community, a member of the REI community, and a dear friend of many REI employees. Please know that we have expressed our condolences to Monika's family.
The issues addressed in any lawsuit are often complex and sometimes, as is the case here, have broad impacts beyond just the parties. I’d like to stress that REI's appeal is not about the amount of money Monika's estate should receive through either a trial or a settlement. Instead, it is about the degree to which responsibility should be shared between a private label seller, like REI, and the manufacturer who designed and made the bike component. REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible.
As we have since REI was founded in 1938, we stand behind our products, and we are committed to acting in accordance with the co-op’s values. We have kept those values front and center throughout this case, and we will continue to do so through final resolution. I can assure you that REI will do the right thing.
This is similar, if not identical, to the responses that other people have gotten when asking about the case.
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atchafalaya
Boulder climber
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May 25, 2011 - 04:02pm PT
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"REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible."
That means an unreasonable demand from the unreasonable lawyers representing plaintiff. Remember, this aint about Monika. The plaintiffs are usually irrelevant once the lawyers get involved.
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Fat Dad
Trad climber
Los Angeles, CA
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May 25, 2011 - 04:07pm PT
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I'm clearly really late to this thread but, as a former products liability associate at a large firm, I can comfortably say that this discussion would have been moot had it happened in CA since the product liability cases here permit the injured party to sue anyone in the manufacturer/retail chain. At least that was the case the last time I checked (though that was probably a good 15 yrs. ago).
The policy behind that theory is that the injured party shouldn't have to conduct extensive discovery to determine who is at fault. Since all the entities in the chain benefitted from the purchase, any or all can be properly named as a defendant. If one party in the chain is truly at fault for the injury, then that defendant has a right to cross claim and sue them for indemnification.
Edit:
"REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible."
That means an unreasonable demand from the unreasonable lawyers representing plaintiff. Remember, this aint about Monika. The plaintiffs are uually irrelevant once the lawyers get involved. Kind of a riduclous comment. The whole post, not just the quotes. Still, what the quoted sentence really means is that she was demanding too much. End of story.
Also, good lawyers represent their clients. Even when he or she has a good case, ironically, that plaintiff can present the biggest obstacle to resolution--unrealistic expectations, failing to respond to requests for information, changing their version of the events, saying completely different things at depo and trial than what they've consistently said sitting in your office, etc. While some plaintiffs are deserving of your sympathy, it's important to remember that they went to a lawyer because they wanted MONEY.
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JEleazarian
Trad climber
Fresno CA
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May 25, 2011 - 04:18pm PT
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Also, good lawyers represent their clients. Even when he or she has a good case, ironically, that plaintiff can present the biggest obstacle to resolution--unrealistic expectations, failing to respond to requests for information, changing their version of the events, saying completely different things at depo and trial than what they've consistently said sitting in your office, etc. While some plaintiffs are deserving of your sympathy, it's important to remember that they went to a lawyer because they wanted MONEY.
Truth. Some of my biggest battles in my 30 years of practice were trying to get clients to act reasonably (or sometimes to act at all). There's a saying in the legal profession: No client ever lost a case, and no lawyer ever won one.
That's obviously from a client's perspective.
John
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 04:40pm PT
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"REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible."
That means an unreasonable demand from the unreasonable lawyers representing plaintiff. Remember, this aint about Monika. The plaintiffs are uually irrelevant once the lawyers get involved.
Atcha, remember there are two sides to this. It could mean an unreasonable demand from unreasonable lawyers representing the plaintiff, but it could just as likely mean an unreasonable offer from unreasonable lawyers representing the defendant.
Or, if an insurance company is involved, it could mean that REI wanted to settle on terms different from that allowed by the insurance company.
Edit: Also, REI claims that it is not about the money but about the precedent. If we believe them, then it's not about there being an unreasonable demand. See my next post.
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