Will Sylianteng ()
On an almost daily basis, my practice involves sifting through fire debris to find the remnants of products that may have caused the fire. For this reason, the very thought of electronics and their batteries getting even smaller makes me cringe. Now, do not get me wrong, I’m typing this article on my ultra-thin laptop, and checking Twitter on my super-lightweight smartphone (both from the same manufacturer), so I understand the consumer appeal of the ever-changing, ever-shrinking product. But for products liability plaintiffs and defendants, the smaller the product, the harder it is to prove and defend against a product defect claim. This is most often the case in those instances where the product, or its component parts, are no longer identifiable or are completely destroyed by a fire.
While “malfunction theory,” the products liability doctrine that allows a plaintiff to use evidence of a malfunction to prove a defect, has been around for close to 25 years, its significance to products liability actions continues to grow as we continue to super-shrink just about everything we use. As such, it is appropriate that we re-examine the doctrine here.
Malfunction Theory in Pennsylvania
In 1989, the Pennsylvania Supreme Court adopted malfunction theory in Rogers v. Johnson & Johnson Products, 565 A.2d 751 (Pa. 1989). In doing so, the court recognized that a plaintiff could prove a defect in a product by simply presenting evidence of the “occurrence of a malfunction,” so long as evidence is also presented eliminating abnormal use or reasonable, secondary causes for the malfunction. The doctrine relieves the plaintiff from having to prove the specific defect, and permits a jury to infer a defect existed from evidence of a malfunction and the absence of abuse and secondary causes.
Twenty years after the adoption of the doctrine, the state’s highest court revisited malfunction theory in Barnish v. KWI Building, 980 A.2d 535 (Pa. 2009). Barnish involved a fire and explosion that occurred at a particle board manufacturing plant. Several employees were killed or injured in the explosion. The injured workers, and the estates of those killed in the tragedy, brought an action against numerous defendants, including the manufacturer of a spark-detection system. The plaintiffs alleged that this system was designed to detect sparks and prevent explosions. Unfortunately, the sensors were not recovered after the fire, and the plaintiffs—out of necessity—had to proceed under the malfunction theory, alleging the explosion itself evidenced the defect. The theory here is simple and logical: had the sensors detected a spark, the fire could have been prevented.
The manufacturer filed a motion for summary judgment claiming that an admission by the plaintiffs that the sensors had functioned properly for more than 10 years prior to the incident was proof that the plaintiff could not make out a prima facie case of strict products liability, because they could not establish that the spark-detection system was defective when it left the manufacturer’s hands—a requirement of Section 402A of the Restatement (Second) of Torts. The defendant’s motion was granted by the trial court and affirmed by the Superior Court, which gave rise to the appeal to the Pennsylvania Supreme Court.
In its opinion, the Supreme Court went on to further clarify that the doctrine, while eliminating the need to prove a specific defect, nonetheless was still at its core a strict products liability claim that required adherence to Section 402A’s requirements. The court noted that while it is permissible to prove a defect in a product using merely the “occurrence of a malfunction,” that proof only satisfies one element of the strict products liability claim. As such, plaintiffs proceeding under a malfunction theory still had the burden of proving the second and third elements of a Section 402A case: that the alleged defect caused the injury and that the defect existed when it left the manufacturer’s control.
However, the court noted that, in a malfunction theory case, those elements of the Section 402A case could also be established through inferences made from circumstantial evidence. A plaintiff may satisfy its burden by presenting evidence of no “abnormal uses” and no “reasonable secondary causes.” Circumstantial evidence, the court was quick to note, was different than “conjecture or guesswork”; a plaintiff would not be able to depend on the latter. As the plaintiffs in Barnish failed to provide any evidence, circumstantial or otherwise, that the defect was present when the product left the manufacturer’s hands, the court affirmed the lower court’s granting of the defendant’s motion for summary judgment.
Notwithstanding, the court declined to hold “that the prior successful use of a product, in and of itself, dooms a plaintiff’s ability to present a prima facie case for strict products liability pursuant to malfunction theory.” In fact, the court specifically noted, “Instead, we recognize that a product can perform successfully for years and yet still be defective.”
Proving and Defending a Malfunction Theory Case
As with all good products liability cases, the initial investigation into the mechanism of failure is critical. In a malfunction theory case, the importance of the initial on-scene investigation is even more critical, because the findings taken from that investigation—unlike a case where the product is mostly intact—are likely the sole basis for the prosecution and the defense of the defect claim. Accordingly, it may be prudent for both sides to hire a multi-disciplined team of experts from the outset to perform a comprehensive examination of not only the product but also the premises where the subject failure occurred.
In the typical scenario of an alleged defect causing a fire, destroying the property and the product itself, most parties begin by hiring a fire investigator as their on-scene expert to determine the origin of the fire. His or her role is to make a determination about the initial cause of the fire and document the scene. After the fire investigators complete their examination of the subject premises, if they identify a product as the potential cause of the fire, they generally secure the product in preparation for a laboratory examination. The scene is then released for repair shortly thereafter and a laboratory exam of the product is scheduled in order for the engineers to examine the product in an attempt to determine the specific defect.
Proceeding in this fashion in cases where malfunction theory may be at play may be fatal for both plaintiffs and defendants, but more so for plaintiffs, because the circumstantial evidence necessary to prove the case (which may very well be the overall scene itself) may be altered prior to a thorough examination by experts more specialized than the initial fire investigator.
For instance, as noted above, a plaintiff typically must prove that the product was not used in a fashion inconsistent with its intended purposes (no abnormal use) and must rule out, usually through expert testimony, the presence of any reasonable secondary explanations for the loss. While a fire investigator may be able to eliminate all other causes using skill and knowledge of fire science or interpretation of burn patterns, he or she is generally not as qualified as an electrical engineer to rule out a subject premises’ electrical wiring as a possible cause, nor as qualified as a mechanical engineer to rule out a gas line or HVAC equipment as potential alternate causes.
Additionally, fire investigators—once they have identified a product cause—often fail to take and secure all other products in or around the alleged failed product. While this is normally permissible when the product’s specific defect is ascertainable, the elimination of all other potential causes, and the process undertaken to do so, is crucial to a successful malfunction theory presentation, and therefore securing that evidence is, in practice, necessary to impose liability on the manufacturer.
The same is equally important for the potential defendant, as it would have to prove, assuming the plaintiff presents a prima facie case, a possible non-defect-oriented explanation. As with the plaintiff’s case, potential defenses could be lost during the overhaul and repair of the subject premises.
As evidence of other things being “not the cause” is central to a malfunction theory case, the need for early and on-site multi-disciplined investigation is critical and should not be taken lightly by counsel for both plaintiffs and defendants. Best practices would dictate that an attorney get involved on both sides from day one of any investigation, and for the site exam to be directed by the attorneys, as malfunction theory is a legal construct often lost on non-attorney experts.
Will Sylianteng is the managing partner of WES Litigation Group. He practices in the area of large loss subrogation, commercial litigation and general civil litigation. He has received The Legal’s Lawyers on the Fast Track and Diverse Attorney of the Year awards.