Practice Tip: Prove Your Case with Circumstantial Evidence of Defect

In order to recover for any injury caused by a product, the product must be proven to have been defective. Yet many product injuries are caused by defects that are not readily ascertainable. Does that mean you should reject the case or discontinue?

If the action is based on an express warranty or misrepresentation, it is generally not necessary to prove that the product was defective or unreasonably dangerous. Such a claim focuses on whether a product conforms to the manufacturer's statements about the product rather than on whether or not the product is defective. UCC 2-313.

If a plaintiff is injured in an automobile accident, must the plaintiff identify some character trait or personality defect in the defendant, which caused the defendant to drive negligently? Of course not. Likewise, a plaintiff does not necessarily have to prove the specific defect in a product that caused injury to the plaintiff. Proof of a defect may be made by: 1) direct proof based on the nature of the accident in the context of the particular product involved; 2) direct affirmative proof through opinion testimony by an expert witness; or 3) circumstantial proof based on an inference of the defect from a weighing of several factors.

Most states permit circumstantial proof of the existence of a defect if a product malfunctions during foreseeable use. What are the circumstances in which a design defect may be inferred? In New York, for example, if the steering mechanism of a 4-month-old automobile causes the car to suddenly swerve off the road, that has been held sufficient proof of defect to go to the jury. Codling v. Paglia, 32 NY2d 330, 345 NYS2d 461 (1973).

Under New York law, a specific defect need not be proven by direct evidence but may be shown through circumstantial evidence that the product did not perform as intended by the manufacturer. Taft v. Sports Page Shop, 640 NYS2d 698 (3d Dept., 1996). It has been held that in New York the plaintiff must exclude all other causes of the accident not attributable to defendant. Henry v. General Motors Corp., 201 AD2d, 949, 609 NYS2d 711 (4th Dept., 1994) while some cases require the plaintiff only to rule out other “reasonable causes,” Garcia v. Rivera, 143 Misc2d 788, 541 NYS2d 880 (Sup. Bx, 1989). If the defendant comes forward with any evidence that the accident was not necessarily attributable to the defect, the plaintiff must then produce direct evidence of defect.

In Maryland, the elements needed to prove circumstantial evidence of product defect are:

• expert testimony as to possible causes;
• the occurrence of the accident a short time after sale;
• same accidents in similar products;
• the elimination of other causes of the accident;
• the type of accident that does not occur without a defect.

(Harrison v. Bill Cairns Pontiac, 77 Md. App. 41, 549 A2d 385 (1998))

Under the test in Maryland, plaintiff must rule out other potential explanations of the injury-causing occurrence, not all other causes. Shreve v. Sears Roebuck, 166 F.Supp.2d 378, (Dist. Md., 2001).

Pennsylvania appears to have the most-developed law on the subject. In Pennsylvania, a plaintiff need not present direct evidence of the defect in cases where plaintiff is claiming “product malfunction.” In such cases, a plaintiff can present evidence in his case-in-chief of a malfunction and eliminate abnormal use or reasonable secondary causes of the malfunction. In Pennsylvania, a “malfunction theory” does not relieve the plaintiff of the burden of establishing a defect, but permits the malfunction itself to serve as circumstantial evidence of a defective condition provided the remaining evidence is sufficient to support the other elements. Dansak v. Cameron Coca-Cola Bottling Co., 703 A2d 49 (Pa. Super. 1997).

Under this theory, the plaintiff must show that the product malfunctioned, that plaintiff used the product as intended or reasonably expected by the manufacturer and the absence of other reasonable secondary causes. A prima facie case under the “malfunction theory” does not require expert testimony explaining how the product was defective or how the defect arose. A plaintiff may sustain his burden by producing circumstantial evidence of the defect as follows: 1) the malfunction of the product; 2) expert testimony as to a variety of possible causes; 3) the timing of the malfunction in relation to when the plaintiff first obtained the product; 4) similar accidents involving the same product; 5) elimination of other possible causes of the accident; 6) proof tending to establish that the accident does not occur absent the manufacturing defective. Dansak, supra.

With respect to number 5 above, the plaintiff must negate evidence of reasonable secondary causes of the malfunction but the courts in Pennsylvania have interpreted this concept liberally, allowing the plaintiff to reach a jury if he presents “a case-in-chief free of secondary causes.” The plaintiff's case-in-chief need not negate every conceivable secondary cause for the malfunction. Rather, the plaintiff only fails to establish a prima facie case if he does not negate evidence of other reasonable secondary causes or abnormal use that is introduced in the plaintiff's case-in-chief. In other words, the plaintiff fails to establish a prima facie case if, based upon his own proof, more than one cause could have accounted for the accident. Dansak, supra at 497. Thus, in Pennsylvania, summary judgment will not be granted against the plaintiff simply because the defendant hypothesizes or even presents evidence of reasonable secondary causes; however, the plaintiff still has to convince the jury.

The careful practitioner must research whether or not his/her state requires the plaintiff to rule out all other causes of the accident not attributable to defendants or merely elimination of other reasonably probable causes.

Lawyers prosecuting products liability actions should not “throw in the towel” merely because they and their experts cannot find the precise defect.

In order to recover for any injury caused by a product, the product must be proven to have been defective. Yet many product injuries are caused by defects that are not readily ascertainable. Does that mean you should reject the case or discontinue?

If the action is based on an express warranty or misrepresentation, it is generally not necessary to prove that the product was defective or unreasonably dangerous. Such a claim focuses on whether a product conforms to the manufacturer's statements about the product rather than on whether or not the product is defective. UCC 2-313.

If a plaintiff is injured in an automobile accident, must the plaintiff identify some character trait or personality defect in the defendant, which caused the defendant to drive negligently? Of course not. Likewise, a plaintiff does not necessarily have to prove the specific defect in a product that caused injury to the plaintiff. Proof of a defect may be made by: 1) direct proof based on the nature of the accident in the context of the particular product involved; 2) direct affirmative proof through opinion testimony by an expert witness; or 3) circumstantial proof based on an inference of the defect from a weighing of several factors.

Most states permit circumstantial proof of the existence of a defect if a product malfunctions during foreseeable use. What are the circumstances in which a design defect may be inferred? In New York, for example, if the steering mechanism of a 4-month-old automobile causes the car to suddenly swerve off the road, that has been held sufficient proof of defect to go to the jury. Codling v. Paglia , 32 NY2d 330, 345 NYS2d 461 (1973).

Under New York law, a specific defect need not be proven by direct evidence but may be shown through circumstantial evidence that the product did not perform as intended by the manufacturer. Taft v. Sports Page Shop , 640 NYS2d 698 (3d Dept., 1996). It has been held that in New York the plaintiff must exclude all other causes of the accident not attributable to defendant. Henry v. General Motors Corp., 201 AD2d, 949, 609 NYS2d 711 (4th Dept., 1994) while some cases require the plaintiff only to rule out other “reasonable causes,” Garcia v. Rivera , 143 Misc2d 788, 541 NYS2d 880 (Sup. Bx, 1989). If the defendant comes forward with any evidence that the accident was not necessarily attributable to the defect, the plaintiff must then produce direct evidence of defect.

In Maryland, the elements needed to prove circumstantial evidence of product defect are:

• expert testimony as to possible causes;
• the occurrence of the accident a short time after sale;
• same accidents in similar products;
• the elimination of other causes of the accident;
• the type of accident that does not occur without a defect.

( Harrison v. Bill Cairns Pontiac , 77 Md. App. 41, 549 A2d 385 (1998))

Under the test in Maryland, plaintiff must rule out other potential explanations of the injury-causing occurrence, not all other causes. Shreve v. Sears Roebuck , 166 F.Supp.2d 378, (Dist. Md., 2001).

Pennsylvania appears to have the most-developed law on the subject. In Pennsylvania, a plaintiff need not present direct evidence of the defect in cases where plaintiff is claiming “product malfunction.” In such cases, a plaintiff can present evidence in his case-in-chief of a malfunction and eliminate abnormal use or reasonable secondary causes of the malfunction. In Pennsylvania, a “malfunction theory” does not relieve the plaintiff of the burden of establishing a defect, but permits the malfunction itself to serve as circumstantial evidence of a defective condition provided the remaining evidence is sufficient to support the other elements. Dansak v. Cameron Coca-Cola Bottling Co., 703 A2d 49 (Pa. Super. 1997).

Under this theory, the plaintiff must show that the product malfunctioned, that plaintiff used the product as intended or reasonably expected by the manufacturer and the absence of other reasonable secondary causes. A prima facie case under the “malfunction theory” does not require expert testimony explaining how the product was defective or how the defect arose. A plaintiff may sustain his burden by producing circumstantial evidence of the defect as follows: 1) the malfunction of the product; 2) expert testimony as to a variety of possible causes; 3) the timing of the malfunction in relation to when the plaintiff first obtained the product; 4) similar accidents involving the same product; 5) elimination of other possible causes of the accident; 6) proof tending to establish that the accident does not occur absent the manufacturing defective. Dansak, supra.

With respect to number 5 above, the plaintiff must negate evidence of reasonable secondary causes of the malfunction but the courts in Pennsylvania have interpreted this concept liberally, allowing the plaintiff to reach a jury if he presents “a case-in-chief free of secondary causes.” The plaintiff's case-in-chief need not negate every conceivable secondary cause for the malfunction. Rather, the plaintiff only fails to establish a prima facie case if he does not negate evidence of other reasonable secondary causes or abnormal use that is introduced in the plaintiff's case-in-chief. In other words, the plaintiff fails to establish a prima facie case if, based upon his own proof, more than one cause could have accounted for the accident. Dansak, supra at 497. Thus, in Pennsylvania, summary judgment will not be granted against the plaintiff simply because the defendant hypothesizes or even presents evidence of reasonable secondary causes; however, the plaintiff still has to convince the jury.

The careful practitioner must research whether or not his/her state requires the plaintiff to rule out all other causes of the accident not attributable to defendants or merely elimination of other reasonably probable causes.

Lawyers prosecuting products liability actions should not “throw in the towel” merely because they and their experts cannot find the precise defect.