Clarification of Evidentiary Sufficiency in Products Liability Cases
by Dennis E. Merkley
In DiCosolo v. Janssen Pharmaceuticals, the Illinois Appellate Court addressed the issue whether circumstantial evidence is sufficient to sustain a jury verdict in a products liability action based on a malfunction theory. In DiCosolo, the decedent died while using a skin patch design manufactured and distributed by the defendants. An autopsy of the decedent showed that she had over 15 times the level of medicine that was supposed to be delivered by the skin patch. Plaintiff filed suit. Ultimately, the jury returned a verdict in plaintiff's favor. Defendants appealed.
On appeal, defendants contended that plaintiff presented insufficient evidence of product "malfunction" to support a jury verdict based on inferences of a "non-specific" product defect. The court rejected defendants' arguments, affirming the jury verdict.
In a products liability case based on a malfunction theory a plaintiff need not show a malfunction such as an exploding coffeepot, collapsed ladder, or brake pedal that goes all the way to the floor in order to prove a non-specific defect. The evidence must be weighed by the finder of fact in order to determine whether the device failed to perform in a manner reasonably to be expected. Evidence of an obvious malfunction is one type, but not the only type, of evidence that a plaintiff may use to prove that a product failed to perform in the manner reasonably to be expected in the light of its nature and intended functions. As such, the court reaffirmed that circumstantial evidence can be sufficient to prove a malfunction theory product liability claim.
The Illinois Supreme Court recently readdressed the factors to be considered in a strict liability design defect case, whether a manufacturer has a post sale duty to warn if a defect was not present at the time of sale, and the extent of the duty in a voluntary undertaking situation in the case of Jablonski v. Ford Motor Company. In Jablonski, the plaintiff suffered severe burns as a result of a fuel fed fire following a rear end accident. Plaintiff was the passenger in a 1993 Lincoln Town Car. Plaintiff's husband was the driver and died as a result of the fire. Plaintiff's vehicle had a wrench in the trunk that pierced the fuel tank at the time of the rear end auto accident. Plaintiffs filed suit, alleging strict liability based on a design defect in the 1993 Lincoln Town Car. Following a jury trial, plaintiffs were awarded $28 million in compensatory damages and $15 million in punitive damages. Defendant appealed. The appellate court affirmed and the case was taken by the Illinois Supreme Court, which reversed.
The key question in any negligent design case is whether the manufacturer exercised reasonable care in designing the product. To determine whether the manufacturer's conduct was reasonable, the question is whether in the exercise of ordinary care the manufacturer should have foreseen at the design would be hazardous to someone. To show that the harm was foreseeable, plaintiff must show that the manufacturer knew or should have known of the risk posed by the product design at the time of manufacture of the product. Whether the manufacturer exercised reasonable care in designing its product also encompasses a balancing of the risks inherent in the product design with the utility or benefit derived from the product. Conformance with industry standards is not dispositive but rather a factor. Other factors include evidence of the availability and feasibility of alternate designs at the time of the product manufacture, the utility of the product to the user and to the public as a whole, the safety aspects of the product including the likelihood that it will cause injury and the probable seriousness of the injury, and the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. Risk utility balancing remains operative in determining whether a defendant's conduct is reasonable in a negligent design case. This list of factors is not exhaustive and the factors to be considered vary depending upon the unique facts and circumstances of each case.
A manufacturer is not required to guard against every conceivable risk regardless of the degree of harm. In this case, plaintiff did not produce sufficient evidence to show that Ford Motor Company was unreasonable in designing the fuel system used in the 1993 Lincoln Town Car.
The Court again rejected the imposition of any post sale duty to warn if the product was not defective at the time of sale. When a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk created by its fault. However, a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.
Plaintiff alleged a duty based on a voluntary undertaking theory in that Ford had previously worked with representatives of law enforcement to develop additional safety measures for loose objects in the trunk of its vehicles. The court held that under a voluntary undertaking theory of liability the duty of care to be imposed upon a defendant is limited to the extent of the undertaking. Since plaintiff was outside the scope of the undertaking, Ford did not owe a duty to the plaintiff in this case.