presumed defective : the impact of the malfunction theory on products cases

PRESUMED DEFECTIVE: THE IMPACT OF THE MALFUNCTION THEORY ON PRODUCTS CASES

PRESENTERS • Hon. F. Keith Brown, (Ret.): Senior Mediator & Arbitrator

at ADR Systems• Sarah Cronan, Senior Litigation Counsel at Husqvarna

Group• Steven Levin, Levin & Perconti • Ryan Nilsen, Partner at Bowman and Brooke, LLP

MODERATOR: Carolyn Purwin Ryan, Cipriani & Werner, P.C.

Overview of the

Malfunction Theory

The malfunction theory allows a plaintiff in a product liability action to rely on circumstantial evidence to support an inference that an unspecified defect attributable to a product seller was the most likely cause of a product malfunction when other possible causes of the malfunction are absent.1

• 1. Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 139, 25 A.3d 571, 583 (2011).

Elements of the

Malfunction Theory

• The incident that caused the plaintiff’s harm was of a kind that ordinarily does not occur in the absence of a product defect.

• Any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of the reasonably possible causes not attributable to the manufacturer or seller.1

1. Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 139, 25 A.3d 571, 583 (2011)

Pre-Suit: How the Malfunction Theory Is Established

How Can a Plaintiff

Establish the

Malfunction Theory

Elements?

• The history and use of the product• The manner in which the product

malfunctioned• Similar malfunctions in similar products

that may refute other possible causes• The age of the product, taking into

account its life expectancy• The causes most attributable to the

malfunction1

1. Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 139, 25 A.3d 571, 583 (2011).

Considerations Before Filing

a Lawsuit?

• Expert testimony (cost/availability)

• Choosing an expert

• Experts determining the cause of malfunction and/or eliminating other possible causes

• Proceeding without the actual product

• Law still evolving and very fact specific

What Are the

Benefits of Pre-Suit

Mediation?

• Total confidentiality which is not possible in litigation

• Risk avoidance as the matter is handled privately

• Predictability of outcome because the parties work together to craft a settlement agreement

• Time and cost savings, and lower discovery costs

During Litigation: How Parties Can Develop Their Case(And

Win)

Ideal Case – A

Plaintiff’s Perspectiv

e

• Malfunction undeterminable with normal use of the product

• Single owner

• Relatively new product

• Expert witness testimony to exclude all causes other than malfunction

Potential Types of

Circumstantial Evidence Used by Plaintiffs

• The malfunction of the product

• Expert testimony as to a variety of possible causes

• The timing of the malfunction in relation to when the plaintiff first obtained the product

• Similar accidents involving the same product

• Elimination of other possible causes of the accident

• Proof tending to establish that the accident does not occur absent a manufacturing defect1

1. Barnish v. KWI Bldg. Co., 602 Pa. 402, 410, 980 A.2d 535, 540 (2009).

Examination of the Case Law

Overview

Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 139, 25 A.3d 571, 583 (2011).

• The Plaintiff, through its subrogation rights, successfully brought a product liability action against the defendant.

• The trial court rendered a judgment for the Plaintiff in the amount of $749,652.69.

• Upon appeal, the Supreme Court of Connecticut held that the Plaintiff’s evidence was insufficient to find the Defendant liable for the fire that damaged their home.

Key Facts


• The tractor ran well for four years up until the homeowners took it to their local dealer for a tune-up.

• The first time the homeowners used the tractor after the tune-up the tractor did not run well and continued to have problems.

• The service technician that performed work on the tractor testified that he inspected the condition of the electrical system and found no problems.

• Furthermore, the Plaintiff’s experts had no opinion as to the cause of the fire or whether a defect existed at the time of sale. The Plaintiffs argued that the fire started in the electrical system.

• Only 30% of the electrical system remained undamaged and could be inspected. No defect was found.

Key Facts


• The Defendant’s fire investigator concluded that the fire “was more likely than not” to have originated at a workbench in the garage.

• The fire investigator also stated that the tractor had safe guards that would protect against a fire if an electrical failure occurred.

Court’s Analysis


• The court stated that cases that rely upon the Malfunction Theory will only go to trial if the Plaintiff can establish that it is more probable than not that the injury was caused by a defect in the product that can be attributed to the manufacturer.

• Furthermore, the Plaintiff “need not conclusively eliminate all possible causes of the product defect but only negate reasonably possible secondary causes.”

• In this specific case, the court stated the Plaintiff’s “failed to present sufficient evidence to eliminate other reasonably possible secondary causes of the defect and to establish that the fire in the tractor most likely resulted from a defect attributable to the defendant.”

Court’s Analysis


• Since the product was not new when it malfunctioned, the Plaintiff needed to provide the Court with additional evidence to explain how the tractor could have had a defect in the electrical system.

• Plaintiff also did not explain how the tractor could be defective when it left the manufacturer’s control and still function properly for several years.

Overview

Barnish v. KWI Bldg. Co., 602 Pa. 402, 410, 980 A.2d 535, 540 (2009).

• Plaintiffs alleged that the spark detection system malfunctioned when it failed to detect a spark that had entered the plant.

• The spark resulted in an explosion and fire that killed one worker and severely injured three others.

• Pennsylvania Supreme Court ruled that the Plaintiffs were unable to rely upon the Malfunction theory because they had failed to show that the product in question had a defective condition prior to the accident.

Key Facts


• The detection system was purchased in 1991 and the fire occurred in February of 2001. This system functioned properly during this time.

• The Plaintiffs were unable to present direct evidence because the fire sensors were lost after the fire.

• Plaintiffs did not produce circumstantial or direct evidence that the fire detection system was defective when it left the manufacture’s control.

Court’s Analysis


• In order for a Plaintiff to rely on the malfunction theory, a Plaintiff must “prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction.”

• The Court held that because the Plaintiff acknowledged that the sensors were successful prior to the incident, this “undermines the inference that the product was defective when it left the manufacturers control.”

• However, the Court made it clear that this holding will not bar all malfunction cases when the product involved had been successfully used prior. “Instead, to survive summary judgment, a Plaintiff who admits that the product functioned properly in the past must present some evidence explaining how the product could be defective when it left the manufacturers control and yet still function properly for a period of time.”

How Different

States Treat the

Malfunction Theory

• Illinois

• Pennsylvania

• Connecticut

• Oregon

• Texas

What Can a

Defendant Do to

Succeed Against the Malfunction Theory?

• Motions for Summary Judgment

• Daubert/Frye Challenges

• Motions in Limine

• Jury Instructions

Mediation In a Malfunction Theory Case

Why Mediate

Malfunction Theory Cases?

• The wide range of possibilities at trial and the ‘fog of war’

• The unique ability of the mediator to help parties mitigate risk, such as:

– Providing an objective view of the strengths and weaknesses of each side

– Leveling the playing field when one side is being unreasonable or overly aggressive

What Tools Are

Necessary for the

Mediator?

• Expert reports from both sides

• Hybrid expert reports:

– The opinions of experts are disclosed

– The identity of the expert is not disclosed

• Disclosure of as much information as possible

What Benefits

Does a Mediator Bring to

the Table?

• Helping to prepare counsel for the mediation

• Helping clients with reality checks

• Helping clients understand the potential pitfalls in their case

What Benefits

Can Mediation Provide If the Case Does Not

Settle?

• Identifying issues

• Narrowing of issues

• Creating a forum for productive negotiation, and the settlement of the case at a later date

Trial: The Malfunction Theory How to Win and Lose

How Can a

Plaintiff Successfull

y Assert the

Malfunction Theory?

A Plaintiff generally can successfully assert the malfunction theory if the following are established:

• The product is new or nearly new1 (the age of the product is not an absolute bar against recovery especially when the product is still within its expected lifespan).

• The Plaintiff can establish the product was properly used.

• There was no known trauma to the product.

• The Plaintiff offers expert opinions regarding the cause, if any.

• The Plaintiff can provide sufficient evidence to establish the probability, and not just a possibility, that the injury resulted from a product defect which can be attributed to the manufacturer.2

1. C.J.S. Products Liability § 222

2. Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 139, 25 A.3d 571, 583 (2011).

Jury Instruction

s for Plaintiffs

(basic)

• The Plaintiff was injured.

• The injury was received from the Defendants product.

• In normal course of events, the injury would not have occurred if the Defendant had used ordinary care while manufacturing the product.

• If you find that each of these propositions have been proven, the law permits you to infer from them that the defendant was negligent in respect to the manufacturing of the product.

Jury Instruction

s for Plaintiffs(detailed)

• The situation, condition, or apparatus causing the injury must be such that, in the ordinary course of events, no injury would have occurred unless someone had been negligent.

• At the time of the injury, both inspection and operation of it must have been in the control of the party charged with neglect.

• The defect existed at the time product left control of Defendant.

• The defect was the proximate cause of injuries.

• Injury would not have occurred but for Defendants conduct.

• No other reasonable cause existed.

How Can a Defendant Successfull

y Defeat the

Malfunction Theory?

A Defendant generally can successfully defeat the malfunction theory if the following are established:

• The product is not new and has been successfully used for a substantial period of time without any incident.

• The Plaintiff misused or mishandled the product prior to the accident.

• There is evidence of reasonable secondary causes that can be attributed to the malfunction.

• Expert testimony concluding injury is likely attributable to other reasonable secondary causes.

Helpful Tips and Comments

presumed defective : the impact of the malfunction theory on products cases

Documents