Illinois Association of Defense Trial Counsel Springfield, Illinois | www.iadtc.org | 800-232-0169 IDC Quarterly | Volume 24, Number 4 (24.4.41)

Product Liability Brian J. Benoit and Davis J. Kim Goldberg Segalla LLP, Chicago

No Defect? No Problem. Proving a Product Liability Claim Through Circumstantial Evidence: Differentiating the RESTATEMENT (THIRD) OF TORTS § 3 from Res Ipsa Loquitor

When and how can a plaintiff be divorced of the burden to show a specific product defect? Illinois and a majority of jurisdictions have long held that evidence of a defective product may be proven through circumstantial evidence. Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370 (1st Dist. 1993). Consistent with Illinois law, the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 3, “Circumstantial Evidence Supporting Inference of Product Defect” (1998) (Restatement Third), states:

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.

Notably, the comments to Restatement Third § 3 trace the “historical antecedents to the law of negligence” and cite specifically to RESTATEMENT (SECOND) OF TORTS, § 328D (1965), which pertains to res ipsa loquitor. There are fundamental differences between product liability proven through circumstantial evidence and the theory of res ipsa loquitor. Understanding the differences between the two will help the practitioner investigate and defend a case where the plaintiff is relying on circumstantial evidence to prove a defect in a product liability case. Illinois law provides that:

[A] plaintiff may create an inference that a product was defective by direct or circumstantial evidence that: (1) there was no abnormal use of the product; (2) that there was no reasonable secondary cause of the injury; and (3) that the product failed to perform in the manner reasonably to be expected in light of its nature and intended function.

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Doyle, 249 Ill. App. 3d at 377. This language tracks the language of the Restatement Third § 3. By contrast, the United States Court of Appeals Seventh Circuit, interpreting Illinois law, specifically rejected the notion that res ipsa loquitor is applicable in products cases. Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994). Res ipsa loquitor is grounded on the presumption that because the instrumentality that created the incident was in the defendant’s control at the time of the incident, the incident would not have occurred but for some fault on the part of the defendant. RESTATEMENT (SECOND) OF TORTS, § 328D (1965). Product liability cases differ in that the focus is not on the fault of the manufacturer, but on the condition of the product itself at the time the product leaves the manufacturer. While there have not been any Illinois cases demonstrating the specific elements required to prove a strict liability claim absent a specific defect, the recent Connecticut case of White v. Mazda Motor of Am., 139 Conn. App. 39 (2012) provides unique insight into some of the issues to be addressed when defending a strict product liability case based on circumstantial evidence. In White, the plaintiff filed a product liability action against a vehicle manufacturer and dealership, alleging that he was injured when his vehicle caught fire one month after he purchased it. The plaintiff specifically alleged that his injuries were caused by a defective and unreasonably dangerous condition with the vehicle. In support of its claim, the plaintiff cited a laundry list of various alleged defects within the vehicle that may have caused the fire. White, 139 Conn. App. at 43. Under cross examination, the plaintiff’s expert admitted that “he was ‘not offering an opinion that the [vehicle] was defective . . . .’” Id. at 42. The defendants filed a motion for summary judgment arguing that the plaintiff failed to produce any evidence to establish that the vehicle was defectively designed or manufactured. The trial court agreed and granted the defendant’s motion. On appeal, the plaintiff focused on the sufficiency of its expert’s opinions and argued that he could prove his case through circumstantial evidence, i.e., the malfunction theory. The Appellate Court of Connecticut affirmed, citing the need for expert testimony in product liability cases despite the existence of the malfunction theory. The appellate court did not consider the malfunction theory in their ruling, which upheld the trial court’s decision. Id. at 50-51. Justice West authored a dissenting opinion, stating that the plaintiff had asserted the malfunction theory in the trial court and that he could have defeated summary judgment based on the existence of circumstantial evidence. Id. at 510. Justice West pointed out that the plaintiff may prove a product liability case in the absence of direct evidence of a defect when it is shown 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 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.

White, 139 Conn. App. at 57 (West, J. dissenting). The dissenting opinion further noted that these two elements could be established through “various forms of circumstantial evidence,” which include:

(1) the history and use of the particular product, (2) the manner in which the product malfunctioned, (3) similar malfunctions in similar 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.

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Id. White subsequently appealed to the Connecticut Supreme Court, which has heard oral argument. Connecticut Network (Oct. 29, 2013), http://ct-n.com/ctnplayer.asp?odID=9559. During oral argument, there was substantial discussion on whether the plaintiff’s expert ruled out all potential alternative causes. Id. These potential causes, as discussed by the justices, could have ranged from a rock puncturing the fuel tank to a bird taking refuge in the engine compartment. Id. The plaintiff’s counsel argued that there was no testimony regarding alternative causes and, as a result, the “lack of alternative causes” factor had been met by the plaintiff. Id. The justices, however, took the lack of testimony by the plaintiff’s experts regarding alternative causes to suggest that potential alternative causes were not eliminated by the plaintiff’s expert. Id. Similar to res ipsa loquitor cases, the justices’ questions appeared to place the burden of eliminating potential alternative causes on the plaintiff. Id. It is clear that the impending decision in White will have a significant impact on product liability cases in Connecticut and perhaps throughout the country. Thus, the relevant inquiry becomes to what extent must an expert conclusively rule out alternative causes in order to raise the malfunction theory of liability? A logical follow-up question is whether expert testimony is necessary to rule out alternative causes. A few cases stand for the proposition that no expert testimony is required in a malfunction theory case. Those cases are uncommon and typically involve an incident in which there were direct witnesses to the accident. For example, in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 217–218 (1997), the court held that the plaintiffs, who alleged that they sustained injuries as a result of excessive vibration from power tools used during their employment, did not need expert testimony to prove a design defect because “a jury may, under appropriate circumstances, infer a defect from the evidence . . . .” Potter, 241 Conn. at 218. The defense must take an active role in evaluating potential alternative causes. The defense can establish its own alternative causation scenarios with which to confront the plaintiffs’ experts or cast doubt on the elimination of alternative causes. To do so may require expert consultation by the defense at the outset, but will preserve the defense’s ability to evaluate any evidence of alternative theories while it still exists. Evidence in product liability cases can be fluid and should be preserved as soon as possible. At first glance, the malfunction theory seems to provide the plaintiffs with an “out” when a specific defect cannot be identified. The recent case law suggests that the malfunction theory carries with it the additional burden on the plaintiff to rule out other potential explanations for the incident. Therefore, it is the defense attorney’s job to ensure that the plaintiff’s analysis in excluding all other causes is grounded in fact.

About the Authors

Brian J. Benoit is a partner in the Chicago office of Goldberg Segalla LLP. His nationwide practice focuses on the defense of product manufacturers, specializing in catastrophic losses involving fires and explosions. Mr. Benoit has authored articles and presented nationwide on investigating fire losses, evidentiary challenges, and deposing expert witnesses.

Davis J. Kim, associate, is a member of Goldberg Segalla’s Products Liability and Global Insurance Services Practice Groups. He defends manufacturers, commercial property owners, property managers, general contractors, subcontractors, motor carriers, and real estate professionals in personal injury and property damage actions. In addition, he handles insurance coverage matters and business and com-mercial litigation, and has significant appellate experience. While receiving his J.D. at the University of Maryland School of Law, Mr. Davis served as President of the International Law Society and participated in the Philip C. Jessup International Law Moot Court Competition. Mr. Davis was a National Dean’s List honoree at Georgetown University, where he received the MacDonald Prize in Korean Studies.

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About the IDC

The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org.

Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 24, Number 4. © 2014. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.

Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, [email protected]

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