Unless Irene decides otherwise this weekend, I have a boat docked on Long Island. She's a picnic boat and, at under 30 feet, the smallest craft in the marina. She's basically a means of transportation to a restaurant or bar, and has never been out of the immediate environs of the Peconic Bay, Gardiner's Bay, and Long Island Sound. And yes, she's a motorboat. (I'd never have the patience to sail.) The enormous yachts in the marina -- and there are many -- no doubt taunt my boat when no one is around. To look at her is to know that she is a mere dalliance, and that her skipper is no great (or ancient) mariner. It's precisely because she so obviously is what she is that I named her Res Ipsa.
Res ipsa loquitur, of course, is Latin for "the thing speaks for itself," and it is the legal doctrine which holds that a plaintiff need not provide direct evidence of negligence where the accident itself is of the sort that would only occur as a result of negligence and the instrumentality was solely in the defendant's control. A classic example is the clamp left inside a patient after surgery. Under res ipsa, the jury is free to infer that the clamp was left as a result of the surgeon's negligence even if the plaintiff puts on no direct proof that the surgeon failed to exercise reasonable care.
Res ipsa (the negligence doctrine, not the boat) has a kissing cousin in strict liability doctrine: malfunction theory. In strict liability, many states hold that a plaintiff need not provide direct evidence of a product's defect if that evidence has been destroyed, the incident that harmed the plaintiff was of the sort that ordinarily occurs as a result of a product defect, and no factors suggest that the defect may have developed after the product left the manufacturer's control.
The cases suggest that the purpose underlying the malfunction theory is to not punish a plaintiff where the evidence has disappeared through no fault of her own -- such as where the product has been consumed in a fire that the product itself allegedly caused. Of course, this rationale only makes sense for manufacturing defects (where the product does not meet the manufacturer's specifications). If the product has been destroyed, it cannot be inspected for evidence of a manufacturing defect. But where the alleged defect is a design defect, the evidence lies in the plans themselves, and the plaintiff's burden to conduct a risk-utility balancing and present a feasible alternative design as a prerequisite to liability should remain unchanged. Indeed, the fact that the individual unit that the plaintiff owned may no longer be available is irrelevant; the plans and other units of the product are available from which the plaintiff -- usually through expert testimony -- can make her case. (Similarly, if the defect is a failure to adequately warn or instruct, the warnings and instructions survive the destruction of the product and cannot support lessening the plaintiff's evidentiary burden.) Establishing a design defect requires a risk-utility balancing, whereas the "malfunction" exception is tantamount to using a "consumer expectations" test for design defect with no justification for the switch in standards.
Interestingly, although the Restatement (Third) of Torts: Products Liability concedes that the "malfunction" exception to ordinary burdens of proof in strict liability "most often appl[ies] to manufacturing defects," it suggests in the commentary that the exception also might apply to design defects where the product "malfunction[s] in a manner identical to that which would ordinarily be caused by a manufacturing defect." Restatement (Third) at sec. 3, comment b. It justifies this laxness based on "the cost of proving whether the failure resulted from a manufacturing defect or from a defect in the design of the product," and suggests that the plaintiff not be required in such situations to specify the type of defect responsible for the product malfunction. Id.
Notably, this "fudging the lines" approach is the direct opposite of the first draft of Section 3 of the Restatement, which provided:
Section 3 is limited to manufacturing defects. . . . A moment's reflection will demonstrate why it is unnecessary and unwise to expand the scope of this Section to cover [the] contingency [of a design so bad that it fails to perform the designer's intended function]. First, design defect cases are not cases where evidence of defect is unavailable. Since the error is on the drawing board, it is available in the design plans of the product. The only reason to make use of this Section would be to bypass the need to utilize expert testimony to establish defect. That, in itself, seems a rather questionable basis for creating an inference of defect.
Restatement (Third) of Torts: Products Liability (Tentative Draft No. 1) at sec. 3, comment b (Apr. 12, 1994); see also id. at sec. 3, comment d ("Although one occasionally finds dictum to the effect that the malfunction theory also supports inferences of defective design, the only cases actually applying the doctrine involve manufacturing defects") (citation omitted).
Because malfunction theory is an exception to the general rule, decisions involving it are uncommon. But this week there have been three reports about decisions applying malfunction theory. And none of the cited decisions seem to adequately focus on whether the defect alleged was a manufacturing defect or a design defect, i.e., whether the fact that the product was destroyed truly makes it impossible for the plaintiff to prove her case. This is troubling, because broadening the use of the malfunction theory has the practical effect of allowing claims to go to the jury where plaintiffs necessarily have not met the ordinary burden of proof regarding the defect. The elements of the "malfunction" exception to the ordinary burdens of proof in strict liability should be clearly stated and strictly construed by courts. Otherwise, defendants may be forced to defend meritless claims through trial and may risk being unfairly assessed with liability.
Decision #1: Connecticut Supreme Court
This morning my friends over at Abnormal Use beat me to a description of the most interesting recent case addressing malfunction theory, Metropolitan Property & Casualty Insurance Company v. Deere & Company, 2011 WL 3505226 (Conn. Aug. 16, 2011). Briefly, a homeowner bought a lawn tractor that worked fine for four years. After taking it in for a tune-up, it kicked, sputtered and backfired. After another service visit where the spark plugs were replaced, the tractor still acted oddly. Nearly a year after the first tune-up, the tractor allegedly caught fire and burned down the home. The tractor was destroyed. The property insurer sued the maker of the lawn tractor, using malfunction theory to assert that an electrical failure in the tractor caused the fire, and thus the tractor was defective. The case went to trial, and at the close of the evidence, the manufacturer moved for a directed verdict, arguing that the plaintiff did not present sufficient evidence to establish strict liability. The trial court denied the motion.
The Connecticut Supreme Court reversed. Other than a passing mention that plaintiff's theory was a manufacturing defect, the court paid little attention to the type of defect alleged. But although the Connecticut Supreme Court was willing to recognize the malfunction theory as an exception to the plaintiff's ordinary burden of proof, the court was very mindful of the fact that applying this rule in the strict liability context results in allowing much more speculation than the res ipsa doctrine allows in the negligence context. In negligence, res ipsa requires that the defendant has exclusive control of the instrumentality causing the injury. But the malfunction theory can allow a jury to speculate as to a defect and causation where the manufacturer has not had control of the product for years, and where many others have had access to (and the potential for altering the performance of) the product. Id. at *6.
The court explained:
[I]t is important that appropriate limitations be placed on the application of the malfunction theory, and, when the evidence presented by the plaintiff does not remove the case from the realm of speculation, courts must intervene to prevent such cases from reaching a jury. Before permitting a case to go to the jury on the basis of the malfunction theory, a court must be satisfied that the plaintiff's evidence is sufficient to establish the probability, and not the mere possibility, that the plaintiff's injury resulted from a product defect attributable to the manufacturer.
. . . [A] jury may rely on circumstantial evidence to infer that a product that malfunctioned was defective at the time it left the manufacturer's or seller's control if the plaintiff presents evidence establishing that (1) the incident that caused the plaintiff's harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time of the product left the manufacturer's or seller's control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller. . . . A plaintiff may establish these elements through the use of various forms of circumstantial evidence, including evidence of (1) the history and use of the particular product, (2) the manner in which the product malfunctioned, (3) similar malfunctions in products that may negate the possibility of other causes, (4) the age of the product in relation to its life expectancy, and (5) the most likely causes of the malfunction.
Id. at *7-*8 (citations omitted). The court was careful to admonish that where the plaintiff has no evidence to counter the likelihood that, over time, other causes of the malfunction may exist, the case cannot go to the jury:
If a product is not new or nearly new when it allegedly malfunctioned, and the product functioned without problems indicative of a defect before the malfunction, the plaintiff must present some evidence to explain how the product could have operated without incident for a time and then have failed on this particular occasion. In the absence of such evidence, any link between the product failure and a defect attributable to the manufacturer is simply too attenuated to serve to establish liability on the part of the manufacturer.
Id. at *11 (citations omitted).
Using these principles, the court concluded that the plaintiffs had sufficient evidence to prove that the fire was caused by the lawn tractor, and that the tractor had a defect. But, the court held that plaintiffs did not have sufficient evidence to establish that the defect was in the product at the time of sale, particularly where the product performed well for 4 years, and then started performing differently after two tune-ups. Accordingly, the court held that the court should have granted the directed verdict motion and not allowed the case to go to the jury.
Decision #2: Pennsylvania Superior Court
On Wednesday, the prolific and profound Jim Beck over at Drug & Device Law devoted a post to Wiggins v. Synthes (U.S.A.), 2011 WL 3524286 (Pa. Super. Aug. 12, 2011), in which the court affirmed the judgment in a case involving some bone screws that broke in a boy's leg. Jim questioned why the strict liability doctrine of malfunction theory even should apply, given that under Pennsylvania law, strict liability does not apply to prescription drugs and medical devices.
The Wiggins decision also troubles me because it never addresses what type of defect was at issue and thus, why the malfunction theory should apply. Certainly the plaintiff did not establish a feasible alternative design. And even though the screws broke and then were discarded by the hospital -- not the manufacturer -- none of the testimony seemed to establish that this could only have been due to the screws' failure to meet the manufacturers' specifications. Clearly, bone screws can break even though they conform to the manufacturer's specifications and thus have no manufacturing defect. For example, the surgeon can select the wrong screw to withstand the force that the bones will place on it. Similarly, if the bones fail to fuse, the screw may not be designed to endure such tensions for long periods of time. The Wiggins case seems more like a decision in which the court was willing to have the jury determine the issue of strict liability simply because there was an injury -- even though the plaintiff had not met the burdens of proof for defect under strict liability.
Decision #3: Pennsylvania Federal Court
On Tuesday, Steven Gerber published an article at Product Liability Law 360 discussing Liberty Mutual Fire Insurance Company v. Sharp Electronics Corporation, 2011 WL 2632880 (M.D. Pa. July 5, 2011), in which the plaintiff blamed a restaurant fire on a cash register. The defendant moved for summary judgment for the plaintiff's failure to present sufficient evidence to establish a defect. The district court denied the motion, holding that the plaintiff had presented sufficient circumstantial evidence of defect to get to the jury not only on a strict liability theory, but also on breach of warranty and negligence theories as well.
This is precisely the kind of "everything should go to the jury" mindset that the malfunction theory invites. The opinion contains little recognition of the fact that the malfunction theory is a very narrow exception to the basic burdens of proof, which lie with the plaintiff. Nor does it exhibit any of the safeguards against prejudicing the defendant that the Connecticut Supreme Court set out in Deere & Co.
And that's the real slippery slope presented by the malfunction theory in the first place. It already is capable of more unfairness than the res ipsa doctrine because it involves products removed in time and space from the defendant's control, and other potential causes of the "malfunction" multiply the longer the plaintiff has possessed the product. And where the defendant is not the one who has controlled and then discarded the product, there is little rational reason for altering the burden of proof to disadvantage the defendant.
And there you have it: once the exception is untethered from the extremely narrow policies that purportedly support it, the exception inexplicably becomes the rule. Why shouldn't a plaintiff be able to satisfy her burden and reach the jury without expert testimony or direct evidence in every situation? Because causes of action have elements that the plaintiff bears the burden of proving as a prerequisite to shifting responsibility for the loss to someone else. (The apparent sympathy for the plaintiff makes even less sense in "fire" cases like Deere and Sharp, where the plaintiff is the property insurer.) Accidents happen. And to adopt a rule that simply equates an accident with a product defect makes the manufacturer an insurer of its products and is "contrary to the purposes of our product liability laws." Deere & Co., 2011 WL 3505226 at *6.
Here's hoping that "malfunction theory" cases remain the exception, rather than the rule, and that courts strictly enforce the prerequisites for invoking the "malfunction theory" exception to plaintiffs' burden of proof.