Nowak v. Faberge USA, Inc.
| Citation | 812 F. Supp. 492 |
| Decision Date | 13 November 1992 |
| Docket Number | Civ. No. CV 90-1919. |
| Parties | 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; Leo Nowak, Individually; and Elizabeth Nowak, Individually, Plaintiffs, v. FABERGE U.S.A., INC.; and Precision Valve Corporation, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Michael J. Cefalo, Lesa S. Gelb, Cefalo & Associates, West Pittston, PA, for plaintiffs.
David L. Pennington, Ernest J. Bernabei, III, Harvey, Pennington, Herting & Renneisen, Ltd., Patrick T. Ryan, Drinker, Biddle & Reath, Philadelphia, PA, Cody H. Brooks, Kreder, O'Connell, Brooks & Hailstone, Scranton, PA, for defendants.
On April 7, 1992, a jury verdict was returned against defendant Faberge1 in this products liability case for serious burn injuries sustained by the minor plaintiff when she punctured a can of Aqua Net hair spray resulting in the ignition of the spray when it came into contact with the flame from a gas stove. The jury found that the valve system in the hair spray can was defective when it was distributed for sale by Faberge because it failed to operate properly and was also defective because it did not contain adequate warnings. On the separate theory of design defect in the hair spray formulation,2 the jury found for the defendant. The jury found that those defects were the proximate cause of Alison's injuries and awarded her3 $1,500,000.00. Defendant Faberge filed post-trial motions for judgment notwithstanding the verdict, see Fed.R.Civ.P. 50, and for a new trial, see Fed.R.Civ.P. 59. See also documents 179 and 203 of record. The plaintiff has filed both a reply and a brief in opposition to the defendant's motions. See documents 185 and 206 of record. Oral argument was held on August 5, 1992, and the motions are now ripe for disposition. For reasons which follow, the defendant's motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial, will be denied.
MOTION FOR JUDGMENT N.O.V.
In deciding a motion for judgment n.o.v., the record is reviewed in the light most favorable to the verdict-winner, Link v. Mercedes-Benz, 788 F.2d 918 (3rd Cir. 1986), and the motion must be denied "unless the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief". Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3rd Cir.1980). The motion will be addressed with those principles in mind.
Faberge manufactures the product "Aqua Net Hair Spray" by assembling component parts, inserting the liquid solvent under pressure and applying the labeling language on the can. The valve assembly component involved here was purchased from Precision Valve Company, one of three suppliers. The main ingredient in the solvent is alcohol and a liquified propellant to activate the spray is mixed into and dissolved in the solvent. A rosin is also inserted in order to hold the hair in place upon application. (The can in question contained an "extra super hold" rosin, which was larger in amount and created more film than the standard spray and could cause clogging on the surface of the valve assembly.) At one time, a non-flammable fluorocarbon propellant was utilized but had to be discontinued because it caused environmental problems in the ozone layer. In fact, a fluorocarbon propellant spray was not only non-flammable, but could actually put out a fire. As a result, hydrocarbons, butane and propane, were substituted as propellants for the non-flammable fluorocarbon. Butane and propane are extremely flammable, more so than gasoline, and are considered to be dangerous.
After the fluorocarbons were discontinued in favor of hydrocarbons, Faberge concluded that it would be to its advantage for marketing purposes if consumers would not perceive any change in the product. The marketing department at Faberge had the final word as to the warning to be placed on the product, and it was decided that "everything must be made to appear the same" even after being made aware that a more hazardous material was now involved. This decision was made notwithstanding the fact that reports Faberge received from the Consumer Products Safety Commission, as well as consumer complaints directly to the company, disclosed incidents of consumers being injured while puncturing aerosol cans near an open flame.
On April 2, 1989, plaintiff's sister, Amy Nowak, purchased the can of Aqua Net hair spray at an Acme Market. The front of the can contained the language and the label "AQUA NET" in large letters. There was no wording on the top of the can. The back of the can contained the usual product promotional claims as well as the ingredients against a light violet background and, in the middle between the claims and the ingredients, and of the same color (white), the following information appeared:
This lettering was of lesser size and prominence than the references on the front and back of the can to ; "AQUA NET"; and "HAIR SPRAY."
Amy Nowak attempted to use the product that night but it wouldn't spray. When she pushed the nozzle down "nothing came out." Later, plaintiff tried it but "it didn't work as it should, the spray came out in spurts." When plaintiff started to spray the next evening, "it didn't work at all." She had previously used an Aqua Net product from a pump bottle, as well as a spray can, and didn't know the differences between the contents of each. It was her belief that she could remove the contents from the spray can and pour it into a pump bottle. Additionally, she thought that she would be able to remove the top with a can opener and, when this was tried unsuccessfully, she punctured the side of the can. The spray spurted out and came in contact with an open flame on a nearby gas stove, of which she was unaware, and enveloped her in flames causing serious burns to her head and body. The extent of the injuries and the amount of damages awarded has not been challenged.
As previously noted, the product did not operate as it was intended inasmuch as the spray initially came out in spurts and then not at all. The valve assembly was destroyed and/or lost, and was unavailable for inspection and analysis. Consequently, plaintiff proceeded on the malfunction theory to establish the defect. A plaintiff may "... 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." Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751, 754 (1989). (Emphasis Supplied) The resolution of these factual issues was for the jury which was properly instructed on plaintiff's burden to eliminate abnormal use or reasonable secondary causes for the malfunction. The malfunction in this case was the failure of the valve assembly to operate and there was no evidence indicating abnormal use that could have caused the valve to malfunction. As to reasonable secondary causes, there was evidence of a potential for clogging of the valve but Faberge would be responsible for this cause inasmuch as the solution was inserted in the can by Faberge. The alleged misuse of the can by puncturing it occurred after the malfunction and is relevant on the issue of proximate cause. However, even misuse by the consumer doesn't provide an absolute defense in a strict liability case because "under Pennsylvania Law, only unforeseeable contributory conduct by the consumer will insulate the manufacturer from strict products liability, and the question of foreseeability is for the jury." Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1195 (3rd Cir.1987). The misuse must be extraordinary and "... whether the act is reasonably foreseeable is to be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisioned the events which unfolded and caused the accident". Baker v. Outboard Marine Corp., 595 F.2d 176, 183 (3rd Cir.1979). As previously pointed out, the warnings on the can specifically advised against puncturing and avoiding proximity to a flame and, consequently, it is difficult to understand how the manufacturer can claim that the puncturing in this case near a flame was unforeseeable. In fact, the defendant's expert witness, Craig Clauser, admitted that it was foreseeable that a purchaser would puncture the can. The effort is made by defendant to distinguish the language referring to the puncture from that of the open flame, but this distinction is completely unpersuasive. The jury was properly instructed on the issue of foreseeability, both as to defect and proximate cause, and accepted the plaintiff's position. In sum, it concluded that the valve was defective; that it was foreseeable that plaintiff would puncture the can in an effort to remove the contents; and that the product might be used near fire or flame.
The applicable law concerning the adequacy of warnings is set out in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), as follows:
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