Malfunction theory as a triple threat for the defense.

• Author: Raymond, Bruce H.

MALFUNCTION THEORY allows plaintiffs in a products liability case to prove the probability of a defect by eliminating normal causes of malfunctions, even without proving the specific existence of a product defect." Plaintiffs have applied malfunction theory to devastating effect on the defense of a products liability case, which is already a plaintiff-friendly environment. Courts throughout the nation are utilizing and developing malfunction theory to relax, or even excuse proof of defect and causation in products liability cases. This article argues that malfunction theory poses a triple threat to defendants by: (i) removing the requirement that plaintiffs prove a specific product defect; (ii) relaxing the causation requirements that plaintiffs must show; and (iii) potentially allowing plaintiffs' experts to provide otherwise impermissibly unsupported opinions. However, at least one recent case provides the possibility that unsupported expert testimony presents the Achilles heel to this otherwise unbounded theory.

1. Plaintiff-friendly Product Liability Law

   Product liability law essentially undid previous common law. Most notably, product liability law created a dangerous environment for any person operating in the stream of commerce by allowing claims against any defendant in the stream of commerce relative to the product with no privity requirement and without proof of fault. Courts also did away with the traditional requirement of proving fault, or negligence--allowing strict liability against any product seller. When neither privity of contract nor negligence is required, the burden often effectively shifts to defendants to figure out who is responsible for the harm allegedly caused to a plaintiff.

   Ordinarily in product liability cases in most jurisdictions, a plaintiff must prove that: a product was in a defective condition unreasonably dangerous to the consumer, the defect caused the injury, the defect existed at the time of sale, and the product was expected to and did reach the consumer without substantial change in condition. (2)

   The application of the malfunction theory to this already plaintiff-oriented body of law has the potential to expose defendants in the stream of commerce even further.

   Malfunction theory is being expanded in most jurisdictions, some in a very relaxed manner, to provide alternate ways in which plaintiffs may successfully bring a products liability case despite the lack of direct evidence of defect and/or causation due to factors such as destruction or loss of the product in question. Under varying circumstances in different jurisdictions, courts are permitting circumstantial evidence as the basis for a prima facie products liability case in the absence of direct evidence of defect, causation, or both.

2. Malfunction Theory Basics

   A plaintiff in a product liability action may be able to establish a prima facie case by providing evidence of the nature of a product's malfunction under circumstances that give rise to an inference that the malfunction would not have occurred absent a defect existing at the time of sale. Product liability cases may arise out of a product malfunction that damages or completely destroys a product that is the basis of the products liability case. (3) As a result, plaintiff would not be able to produce direct evidence of a specific defect. The malfunction theory essentially allows a plaintiff to present circumstantial evidence of a defect or evidence of an unspecified dangerous condition when direct evidence is unavailable or there is insufficient evidence to identify the specific defect. Additionally, application of the malfunction theory allows the plaintiff to present circumstantial evidence that rules out reasonable secondary causes in lieu of direct evidence of causation.

   Given that the malfunction theory implicates permissible inferences for a fact-finder absent direct evidence, the theory essentially operates as a rule of evidence. As such, the rules of evidence and the RESTATEMENT (THIRD) OF TORTS, PRODUCTS LIABILITY, as a synthesis of and historical perspective on the common law, have contributed to and have informed the development of the malfunction theory.

   According to Section 3 of the RESTATEMENT (THIRD) OF TORTS, PRODUCTS LIABILITY, "Circumstantial Evidence Supporting Inference of Product Defect":

   It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution." (4) The commentary clarifies that "quite apart from the question of what type of defect was involved, the plaintiff need not explain specifically what constituent part of the product failed. For example, if an inference of defect can be appropriately drawn in connection with the catastrophic failure of an airplane, the plaintiff need not establish whether the failure is attributable to fuel tank explosion or engine malfunction." (5) The plaintiff:

   must establish by a preponderance of the evidence that the incident was not solely the result of causal factors other than defect at time of sale. The defect need not be the only cause of the incident; if the plaintiff can prove that the most likely explanation of the harm involves the causal contribution of a product defect, the fact that there may be other concurrent causes of the harm does not preclude liability under this Section. But when the harmful incident can be attributed solely to causes other than original defect, including the conduct of others, an inference of defect under this Section cannot be drawn. Evidence may permit the inference that a defect in the product at the time of the harm-causing incident caused the product to malfunction, but not the inference that the defect existed at the time of sale or distribution. Such factors as the age of the product, possible alteration by repairers or others, and misuse by the plaintiff or third parties may have introduced the defect that causes harm. (6) III. Malfunction Theory In Practice

   Under a malfunction theory, plaintiff may prevail on a strict liability claim without having to prove a specific product defect. For example, in Welge v. Planters Lifesavers Co., the court reversed the grant of summary judgment for defendant and remanded the case despite the fact that the plaintiff could not prove any specific defect which caused a jar of peanuts to shatter as plaintiff was replacing the cap. (7) The court found that plaintiff's accident was not caused by mishandling or misuse after purchase, but was more likely caused by a defect that had been introduced earlier in the stream of commerce. The court stated that a "plaintiff in a products liability suit is not required to exclude every possibility, however fantastic or...