Gordner v. Dynetics Corp.

• Decision Date: 20 September 1994
• Docket Number: No. 4:CV-93-1124.,4:CV-93-1124.
• Parties: Ruth J. GORDNER, Plaintiff, v. DYNETICS CORPORATION, Defendant, v. McMASTER-CARR SUPPLY COMPANY and B & G Manufacturing Co., Third-Party Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

862 F. Supp. 1303

Ruth J. GORDNER, Plaintiff, v. DYNETICS CORPORATION, Defendant, v. McMASTER-CARR SUPPLY COMPANY and B & G Manufacturing Co., Third-Party Defendants.

No. 4:CV-93-1124.

United States District Court, M.D. Pennsylvania.

September 20, 1994.

John M. Humphrey, Rieders, Travis, Mussina, Humphrey & Harris, Williamsport, PA, for plaintiff.

Anthony Piazza, Murphy, Piazza & Genello, P.C., Scranton, PA, for original defendant Dynetics.

Norman D. Namey, Fine, Wyatt & Carey, P.C., Scranton, PA, for third-party defendant B & G Mfg.

Joseph P. Lenahan, Lenahan & Dempsey, Scranton, PA, for third-party defendant McMaster-Carr Supply Co.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

On July 22, 1993, plaintiff Ruth J. Gordner initiated this action by filing a complaint against defendant Dynetics Corporation alleging that she suffered injuries caused by the breaking of a part on a machine made by Dynetics. Dynetics on September 28, 1993, filed a third-party complaint against McMaster-Carr Supply Co. and B & G Mfg. Co., as makers of the component part alleged to have failed.

Before the court are motions for summary judgment filed by all defendants, based upon plaintiff's failure to produce the allegedly defective product.

DISCUSSION:

I. SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added).

... The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 323, 325, 106 S.Ct. at 2552, 2553.

Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir.1988).

II. STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

1. This action was filed by plaintiff against original defendant Dynetics in this court on or about July 22, 1993.

2. Plaintiff seeks recompense, through this action, for damages she claims to have suffered as a result of an incident that occurred on July 23, 1991.

3. Plaintiff's claim for damages is the result of the purported failure of a component part of an industrial machine that occurred on the above-referenced date while she was in the scope and course of her employment.

4. Plaintiff bases her claim against Dynetics on product liability theories of recovery.

5. Dynetics filed a third-party complaint naming B & G Mfg. Co. and McMaster-Carr Supply Co. as additional defendants on September 28, 1993, seeking contribution and/or indemnity.

6. Dynetics' third-party complaint against B & G and McMaster-Carr asserts product liability theories of recovery as the basis for its claims of contribution and/or indemnity.

7. The defect alleged to be the legal cause of plaintiff's harm and Dynetics' claims for contribution and/or indemnity concerns a metallic pin or stud which is alleged to have failed.

8. The metallic pin or stud at issue was not recovered after the incident, is lost and is therefore unavailable for inspection and/or testing by any of the parties to this action. There is no allegation that plaintiff or agents acting on behalf of plaintiff caused the loss of the metallic pin or stud at issue.

III. ISSUE PRESENTED TO THE COURT

Defendants contend that they cannot be held liable for injuries caused by a defective product which is lost and therefore not available for examination and testing by experts. They base this contention on a line of cases discussing the concept of spoliation of evidence. Plaintiff responds that the instant case varies from the normal spoliation of evidence case because there is no allegation that plaintiff or anyone acting on her behalf caused the loss of the product. She claims that she can establish a case of product liability based upon a theory of recovery known as the malfunction theory of product liability.

Based upon the arguments of the parties, the issue presented to the court is: Under Pennsylvania law, can a plaintiff asserting a cause of action for product liability rely upon a malfunction theory for recovery when the plaintiff cannot produce for examination the product in question?

IV. MALFUNCTION THEORY

In Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751, 754 (1989), the Pennsylvania Supreme Court specifically adopted the malfunction theory of product liability. The court described the theory as follows:

This theory encompasses nothing more than circumstantial evidence of product malfunction.... It permits a plaintiff to 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. ... It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes....

Id. (citations omitted).

Based upon Rogers, then, it is obvious that a plaintiff need not prove directly that a defect existed in the product. The question, then, is whether a plaintiff's ability to prove a defect indirectly, i.e. through a malfunction, extends to the point that the plaintiff can prove a defect without actually producing the allegedly defective product.

In Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665, allocatur denied, 529 Pa. 642, 600 A.2d 1259 (1990) (table), the plaintiffs sued based upon an explosion in the laundry room of a campground. The plaintiffs sued the owners of the campground and the manufacturers of appliances located within the laundry room. Three days after the explosion, the building site was leveled and the remains of the appliances were destroyed, so that experts for some of the parties never had the opportunity to examine either the building or the appliances. 581 A.2d at 666. The trial court granted summary judgment in favor of the manufacturers of the appliances and their components because the plaintiffs were unable to prove directly the existence of a defect in the appliances. 581 A.2d at 668.

In reversing, the Superior Court reviewed the standards for the malfunction theory of product liability, quoting directly from Rogers. Troy, 581 A.2d at 668 (quoting Rogers, 565 A.2d at 754). As material to the instant case, the Troy opinion is important in that the plaintiffs did not have direct evidence of a defect, in fact had argued that the failure of a particular valve had caused the explosion despite not having possession of the valve itself, and summary judgment was held to be inappropriate. It appears from this case, then, that a plaintiff need not produce the actual product in question to recover under the malfunction theory of product liability.¹

Defendants, however, point to two cases which support their argument that, without producing the allegedly defective product, a plaintiff cannot recover. In Roselli v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685 (1991), allocatur granted, 530 Pa. 645, 607 A.2d 255 (1992), appeal discontinued, plaintiffs sued for injuries received by one plaintiff when a coffee carafe shattered in her hand. The plaintiffs inadvertently disposed of the broken pieces of the carafe, and were unable to produce them for inspection by the defendant's experts. The trial court granted summary judgment in favor of the defendant for two reasons: (1) the defendant had been deprived of the most direct means of countering the plaintiffs' allegations; and (2) the defendant was deprived of the opportunity to determine the identity of the manufacturer of the glass carafe. 599 A.2d at 227.

In affirming the trial court as to the first reason, the Superior Court quoted Martin v. Volkswagen of America, 1989 WL 81296 (E.D.Pa.1989), as to the "public policy rationale" for not allowing recovery by the plaintiffs. That court had held that, when a plaintiff is responsible for the destruction of evidence, the plaintiff should not be permitted to recover. The Superior Court continued:

To permit claims of defective products where a purchaser of the product has simply thrown it away after an

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