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
Perspective
• 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
Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302
Conn. 123, 139, 25 A.3d 571, 583 (2011).
Overview
• 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.
Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302
Conn. 123, 139, 25 A.3d 571, 583 (2011).
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.
Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302
Conn. 123, 139, 25 A.3d 571, 583 (2011).
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.
Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302
Conn. 123, 139, 25 A.3d 571, 583 (2011).
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.”
Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302
Conn. 123, 139, 25 A.3d 571, 583 (2011).
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.
Barnish v. KWI Bldg. Co., 602 Pa. 402, 410, 980
A.2d 535, 540 (2009).
Overview
• 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.
Barnish v. KWI Bldg. Co., 602 Pa. 402, 410, 980
A.2d 535, 540 (2009).
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.
Barnish v. KWI Bldg. Co., 602 Pa. 402, 410, 980 A.2d
535, 540 (2009).
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
Successfully
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
Instructions
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
Instructions
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
Successfully
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.
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