Nowak By and Through Nowak v. Faberge USA Inc.

• Decision Date: 06 July 1994
• Docket Number: Nos. 92-7660,93-7051,s. 92-7660
• Citation: 32 F.3d 755
• Parties: Prod.Liab.Rep. (CCH) P 13,947 Alison NOWAK, a minor by and through her parent and natural guardian Leo NOWAK; Amy Nowak, a minor by and through her parent and natural guardian, Leo Nowak; Elizabeth Nowak, individually; Leo Nowak, individually v. FABERGE USA INC., t/d/b/a Aquanet, a/k/a Faberge International, a/k/a Marimo Inc.; Precision Valve Corporation Faberge U.S.A., Inc., t/d/b/a Aqua Net, a/k/a Faberge International, a/k/a Marimo, Inc., Appellant in 92-7660. Faberge U.S.A., Inc., Appellant in 93-7051.
• Court: U.S. Court of Appeals — Third Circuit

Page 755

32 F.3d 755

Prod.Liab.Rep. (CCH) P 13,947

Alison NOWAK, a minor by and through her parent and natural guardian Leo NOWAK; Amy Nowak, a minor by and through her parent and natural guardian, Leo Nowak; Elizabeth Nowak, individually; Leo Nowak, individually v. FABERGE USA INC., t/d/b/a Aquanet, a/k/a Faberge

International, a/k/a Marimo Inc.; Precision Valve

Corporation

Faberge U.S.A., Inc., t/d/b/a Aqua Net, a/k/a Faberge

International, a/k/a Marimo, Inc., Appellant in 92-7660.

Faberge U.S.A., Inc., Appellant in 93-7051.

Nos. 92-7660, 93-7051.

United States Court of Appeals, Third Circuit.

Argued July 2, 1993.

Decided July 6, 1994.

Michael J. Cefalo (argued), Lesa S. Gelb, Kurt J. Kwak, Cefalo & Associates, West Pittston, PA, for appellees.

Ernest J. Bernabei, III, Harvey, Pennington, Herting & Renneisen, Ltd., Patrick T. Ryan (argued), Alfred W. Putnam, Jr., Lawrence

A. Nathanson, Drinker, Biddle & Reath, Philadelphia, PA, for appellant.

Before: BECKER, ALITO and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

This case arises from a tragic accident involving appellant Faberge's hair spray product, Aqua Net. The appellee Alison Nowak punctured an aerosol can of Aqua Net near a flame and suffered severe injuries from the resulting fire. The jury found that a defective valve system and inadequate warnings on the hair spray can proximately caused Alison's injuries. She was awarded damages of $1.5 million.

Appellant Faberge contends that the district court failed to make a ruling as a matter of law that the product was defective. Under Pennsylvania tort law, the district court was required on the basis of the averments made by the plaintiff to determine whether or not Faberge's product was defective, both as to the valve system and as to the warnings on the can, prior to sending the case to the jury for its deliberations on whether the facts in evidence supported these averments. The district court did not explicitly make the findings as to defect. However, we conclude that under Pennsylvania law the district court could implicitly make these determinations by the fact that it sent the case to the jury. Appellant Faberge bore the burden of requesting an explicit ruling on this issue if it desired one.

The parties do not contest the main facts. Faberge manufactures Aqua Net hair spray worldwide in both aerosol and non-aerosol pump spray containers. Aqua Net contains a mixture of butane or propane, as the aerosol propellant, and alcohol, as a solvent for the propellant and the hair-holding agent. Alcohol is flammable and both propane and butane are extremely flammable. Aerosol cans of Aqua Net carry a warning on the back stating, among other things, "Do not puncture" and "Do not use near fire or flame."

On April 3, 1989, Alison Nowak, a fourteen-year-old girl, tried to spray her hair with a newly-purchased aerosol can of Aqua Net. The spray valve would not work properly. Alison decided to cut open the can with a can opener. She thought she could then pour the contents into an empty pump bottle of Aqua Net which had a working spray mechanism. Alison was standing in the kitchen near a gas stove when she punctured the can. A cloud of hair spray gushed from the can and the stove's pilot light ignited the spray into a ball of flame. Alison suffered severe, permanently disfiguring burns over 20% of her body.

Alison, along with her parents and her twin sister, filed suit against Faberge. They claimed that Alison's injuries had three causes: a manufacturing defect in the nozzle valve of the aerosol can, inadequate warnings on the can, and a defect in the design of the hair spray because it included a flammable solvent and propellant. The Nowaks also filed a separate suit against Precision Valve Corporation which had designed, manufactured, and sold the valve mechanism used on the can. The two lawsuits were consolidated and tried together. At trial the district court granted Precision Valve's motion for a directed verdict because plaintiffs had not demonstrated that the valve was defective at the time it left Precision Valve's control. The district court also directed verdicts against Alison's parents and sister on their claims against Faberge.

At the conclusion of the presentation of evidence, the district court submitted the case to the jury on special interrogatories: 1) Was the valve system in the product defective when it was distributed for sale by the defendant, Faberge? 2) Was the product defective because it contained a flammable solvent and propellant? 3) Was the product defective because it did not contain adequate warnings? The jury answered "No" to the second question, but it answered "Yes" to the first and third questions, finding further that these particular defects were each a proximate cause of plaintiff's injuries. The jury awarded $1.5 million in damages to Alison. On November 13, 1992, the district court denied Faberge's motions for judgment n.o.v. and for a new trial. 812 F.Supp. 492. This appeal followed.

The district court's jurisdiction over this case rested on 28 U.S.C. Sec. 1332. This Court's jurisdiction arises from 28 U.S.C. Sec. 1291. The parties agree that Pennsylvania law governs this case. Federal courts sitting in diversity "must apply the substantive law of the state whose laws govern the action." Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir.1990) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). This Court's review of the district court's decision to submit the issues of product defect and causation to the jury is plenary.

Under Pennsylvania law, whether a product is defective under the facts alleged by the plaintiff is initially a question of law to be answered by the trial judge. Mackowick v. Westinghouse Elec. Corp., 525 Pa. 52, 575 A.2d 100, 102 (1990). The supplier of a product is the guarantor of its safety. A product is considered to be defective "where the product left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use." Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1027 (1978). The determination of whether a product is defective under Pennsylvania law is a two-stage inquiry. Id. 391 A.2d at 1025-26; Griggs v. BIC, 981 F.2d 1429, 1432 (3d Cir.1992). Initially, the question of whether a product is defective, given the facts as alleged by the plaintiff, is a question of law to be answered by the trial judge. If the judge determines as a matter of law that Pennsylvania's social policy supports placing the risk of loss on the manufacturer in the situation alleged by the plaintiff, then the case goes to the jury for a determination as to whether the facts alleged by the plaintiff are true. The Pennsylvania Supreme Court has stated this proposition clearly:

Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? ... [This is a question] of law and [its] resolution depends upon social policy.... It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after the judicial determination is made is the case submitted to the jury to determine whether the facts of the case support the averments of the complaint.

Azzarello, 391 A.2d at 1025-26.

Under Pennsylvania strict liability law, a defect may be in the warnings given for the use of the product as well as in the design of that product. A product can be held to be defective "if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product." Mackowick, 575 A.2d at 102. In Mackowick, the Pennsylvania Supreme Court reaffirmed Azzarello, explicitly holding that the determination that a product is defective because of inadequate warnings is initially a question of law to be answered by the trial judge. Id. See also Mazur v. Merck & Co., 964 F.2d 1348, 1366 (3d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 463, 121 L.Ed.2d 371 (1992).

Our review of the record in this case demonstrates that the trial judge did not make an explicit determination, prior to sending the case to the jury, that Faberge's product was defective, either as to the spray mechanism or as to the warnings on the can. The Nowaks argue that the judge implicitly made the necessary threshold legal finding in three ways: by sending the case to the jury, by denying Faberge's motion for a directed verdict, and by ruling against one of Faberge's motions in limine that challenged the Nowaks' ability to present evidence on the inadequacy of the warning. The Nowaks also argue that Faberge failed to request a specific ruling by the judge that its product was defective. Based on our reading of Pennsylvania law and our review of the record, these arguments are valid.

Faberge asserts that the Azzarello threshold determination by the trial court should be made explicitly. We agree that this is desirable. Given the many complex and fact-based considerations involved, requiring an explicit ruling by trial courts on this often difficult question of social policy would increase the instructive value of the holding for other courts, for potential plaintiffs, and for manufacturers who seek guidance from the courts' products liability decisions. Explicit rulings would also improve the clarity of the trial court record for purposes of appellate review. ¹ However, the Pennsylvania Superior Court, sitting in banc in review of a...