The Law Tribune previews interesting or important cases most weeks when the state Appellate Court or the state Supreme Court are in session.

Case: Roland Todd White v. Mazda Motor of America Inc., et al.

Court: Supreme Court (meeting at Tolland High School)

Date: Wednesday, Oct. 29

Time: 11 a.m.

Attorneys: Frank J. McCoy, Paul D. Williams

Summary: Weeks after a man bought a new Mazda, the car caught fire and he was injured. His lawsuit against Mazda and the dealership, however, was dismissed because he failed to prove the explosion was caused by a defect. In a product liability case that has attracted several amicus briefs, he is appealing to the state Supreme Court in an effort to get the case to trial.

Background: On Oct. 16, 2006, Roland Todd White, of the Windham County town of Brooklyn, purchased a new 2007 Mazda3 compact car from Central Mazda in Plainfield. White used the car to commute to and from work, which was about 60 miles away in Westborough, Mass. He claims he made the trip about 40 times with the new car.

White hadn’t had any problems until the morning of Nov. 15, 2006. While driving on Interstate 395, he noticed a strong gasoline odor coming through the vents, so he pulled over to the side of the highway. When White got out of the car, he didn’t notice any heat, smoke or flames. But he said that when he opened the hood, he saw a flame and there was a small explosion.

White claims the explosion threw him backwards and he landed on the ground five or 10 feet away. As he fell, White said he heard his left knee pop. He claims to have suffered permanent damage to the knee, and sought damages.

White, through his lawyer, Frank J. McCoy, of McCoy & McCoy in Hartford, brought a product liability action against the dealership and manufacturer, Mazda Motor of America Inc., alleging that the vehicle was defective and unreasonably dangerous. Specifically, the lawsuit alleged that a fuel leak caused the fire.

The suit claimed that the fuel lines were improperly installed, or were secured with the wrong type of clamps, causing damage to the lines, the eventual leak and the subsequent fire. A certified fire investigator, who was the plaintiff’s sole liability expert, backed up the plaintiff’s claims concerning the improper installation or maintenance of the fuel lines.

The defendants filed a motion for summary judgment, arguing that White hadn’t produced any evidence, expert or otherwise, establishing that the vehicle was defectively designed or manufactured, or that the alleged defect caused the plaintiff’s injuries.

Superior Court Judge Antonio Robaina granted the motion, ruling that because the plaintiff’s expert did not offer an opinion as to whether the vehicle was defectively designed or manufactured, the plaintiff failed to provide sufficient expert testimony to establish a prima facie product liability case.

The plaintiff appealed, arguing that he had submitted sufficient circumstantial evidence to pursue claim based on “malfunction theory,” which permits a plaintiff to establish a prima facie case on the basis of circumstantial evidence when direct evidence of a defect is unavailable. Under the malfunction theory, when a relatively new product fails to perform its intended function, the mere fact that the product failed supports an inference that the product was defective, regardless of whether the plaintiff presents expert testimony.

The state Appellate Court, however, ruled against White, opining that the plaintiff relied on the expert to make his case and further stating that he never raised the malfunction theory to the trial court judge. The Supreme Court will now decide whether the Appellate Court properly declined to consider the plaintiff’s malfunction theory claim.

White’s lawyer, McCoy, claims he did bring up the malfunction theory at various times to the trial judge. McCoy hopes he can convince the justices to give his client his day in court. McCoy says other than a design flaw, there is no other explanation for what happened to his client.

There has been no evidence presented, McCoy wrote in his briefs, “that the automobile was struck by foreign objects or was impacted by anything along the roadway it traveled. The defendants could have presented evidence to validate wild theories… yet notably did not do so.”

Paul D. Williams, of Day Pitney in Hartford, represents the Mazda defendants. Williams wants the trial court and Appellate Court opinions upheld. Williams said use of the malfunction theory might make sense if the product in question were a television. “But a car, and particularly one that has already been driven several thousand miles over open highway, is much more vulnerable to damage from post-sale use,” writes the defense lawyer.

“On plaintiff’s long drives to and from work, the engine compartment of his vehicle was exposed to all manner of pebbles, rocks, highway debris, and many other foreign objects that could affect the operation of the vehicle and potentially lead to damage or a fuel leak,” wrote Williams. “That history and use cautions against resort to the malfunction theory here.”

The Connecticut Trial Lawyers Association has submitted an amicus brief supporting the plaintiff’s case.

“At the end of the day, this case comes down to the simple proposition that you really don’t need an expert to reach the conclusion that a brand new automobile should not burst into flames within one month of purchase,” wrote Brenden Leydon, of Stamford’s Tooher, Wocl & Leydon in Stamford. “By forcing the injured victim to identify the specific defect which caused the fire in a factual scenario where doing so is likely to be impossible or overly burdensome, consumers are left lacking protection from dangerous products and product sellers are left lacking motivation to address it now that they are armed with the ‘it’s complicated’ defense.”

The national Product Liability Advisory Council disagrees with Connecticut’s trial lawyers. In its amicus, the council argues that even a relatively new vehicle can be damaged on the open road. If so, the brief stated, that doesn’t mean there was anything wrong with the car’s design.

Further, attorney Jonathan Hoffman, of Portland, Ore., wrote on the council’s behalf, “the proponent of most product defect claims – whether based on a theory of specified defect or a malfunction – should anticipate the need for expert testimony, and trial courts should ordinarily reject any claim of unspecified defect unsupported by qualified and reliable expert evidence.”