In a shocking revelation, the FDA confirmed yesterday that the Georgia peanut company linked to the salmonella outbreak knowingly shipped products it knew were laced with the contamination. Apparently the company had confirmed contamination as far back as 2007, according to an AP article appearing in today’s Baltimore Sun.

There are many defective product cases which cause serious personal injury or death. Often, fire or explosion may cause such significant damage to the product that the actual specific cause for the accident can not be determined. The first example to come to mind is an airplane exploding into a million pieces. We know that this is not supposed to happened and that something obviously went wrong. The problem for the lawyer representing victims is how to prove it? Often times, when no physical evidence is preserved in a products liability case, the victim’s lawyers may be forced to rely on the “Indeterminate Defect Theory” . I have done significant research in this area and hope that the legal analysis below will help others similarly situated.

As a threshold matter, in a Maryland product liability action, proof of a defect must arise above surmise, conjecture or speculation, and a plaintiff may not base recovery solely on any presumption that might arise from the happening of an accident. See International Motors, Inc v. Ford Motor Co., 133 Md. App. 269, 275 n.7, 754 A.2d 115, 118 n. 7 (2000). Notwithstanding the above, an inference of a defect may be drawn from the happening of an accident where circumstantial evidence tends to eliminate other causes, such as product misuse or alteration; i.e., an indeterminate defect. The first case in Maryland to address this circumstance was Harrison v. Bill Cairns Pontiac, 77 Md. App. 41, 549 A.2d 385 (1988). The Harrison Court found that the five factors to be considered when determining whether a product defect may be inferred include:

(1) expert testimony as to possible causes;
(2) the occurrence of the accident a short time after the sale;
(3) same accidents in similar products;
(4) the elimination of other causes of the accident;
(5) the type of accident that does not happen without a defect
Not surprisingly, how each of these factors is applied varies based on the testimony at issue in each case, and in many cases, on the whims of each particular judge. The cases set forth below help illustrate the basic tenets of each factor and how Maryland’s state and federal courts have interpreted the same.

Harrison v. Bill Cairns Pontiac

In Harrison, used car buyers brought a product liability action against the manufacturer and seller to recover for damages caused by a fire that started behind the vehicle’s dashboard instrument panel. At the time of purchase by the Plaintiffs, the car was approximately 4 years old and had over 58,000 miles on it. At deposition, one of plaintiffs’ experts stated that the fire was caused by an “electrical short in the dashboard directly behind the instrument cluster.” Harrison, at 44. The expert’s two-fold rationale for reaching this conclusion was: (1) because “all the wires were burnt and they were what was burnt the most” and therefore “that is what I presumed was the central point of the fire;” and (2) because the only way that [the wires] would have caught on fire that way is through a short.” Harrison, at 44. A second expert also concluded that an unidentified defect in the car caused the fire. The basis for that expert’s conclusion was simply that “cars don’t drop molten material on people’s feet while in operation.” (referencing the plaintiff’s testimony that molten plastic from the internal fire dropped on her feet while she was operating the vehicle). Harrison, at 45. In short, the second expert was unable to specifically identify the electrical defect or say whether it was a manufacturing or design defect.. Harrison, at 45. Perhaps more damning, however, was the fact that the second expert conceded that a faulty repair in that area could have caused a problem that resulted in an electrical fire. Harrison, at 46.
Based on the foregoing testimony, the trial court granted summary judgment in favor the defendants. On appeal, the Court of Special Appeals affirmed that decision, holding that the plaintiffs’ evidence did not tend to eliminate the likelihood that a defect in the car, if any, was created after Ford’s manufacture of the vehicle. Curiously, despite enunciating the five factors to be considered when considering whether an expert may infer a product defect from particular circumstances, the appellate court failed to engage in a factor by factor analysis. Rather, in reaching this holding, the Court merely focused on those factors it concluded swung the balance in the defense’s favor. Specifically, the court placed considerable reliance on the second, fourth and fifth factors, highlighting the fact that the automobile had been purchased more than four years after the date of manufacture, had more than 58,000 miles on it at the time of purchase and that nothing was known about its operational or repair history. Such evidence made it impossible, in the court’s mind, to permit an inference that a defect existed at the time of manufacture when combined with the possibility that a faulty repair or other happening might have caused the problem.
Continue Reading ›

In Maryland, liability of a lessor may NOT be imposed in a tort action via the doctrine of strict liability. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Restatement (Second) § 402A, quite simply, is not applicable to lessors.

Section 402A states:

(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and (b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

In Maryland, liability of a bailor/lessor for hire of a chattel may be imposed in a tort action for negligence. In a negligence case, the plaintiff must prove not merely that the lessor failed to make proper inspections, but either that the lessor knew of a defect or that a reasonable inspection, if made, would have disclosed the defect. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Maryland Civil Pattern Jury Instruction 26:4 states that the lessor of a product “must use reasonable care to make it safe for its reasonably foreseeable usage, and this duty includes the giving of adequate warning of dangers which are not obvious to the user but are known, or through reasonable care should be known to the lessor.” Arguably, a lessor, at times may occupy a similar role/position to a retailer or non-manufacturing supplier. Maryland courts have held that where a seller or other non-manufacturing supplier is nothing more than a conduit between the manufacturer and a customer, the retailer ordinarily has no duty in a negligence to discovery the defects or dangers of a particular product. Eagle Picher Ind. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992). The non-manufacturing supplier, however, may do something more than merely act as a conduit of goods, such as installation, and those additional acts may impose a higher standard of care upon the supplier; i.e., inspect or test the product. Id. (although the issues regarding improper installation were not made).

Beginning in 1995, liability of a bailor/lessor of a chattel may also be imposed in a tort action for breach of express or implied warranty. Maryland Code Annotated, Commercial Law Article, §§ 2A-210, 2A-212, and 2A-213 govern the extension of express and implied warranties to the leasing of goods. The official comment to Section 2A-210 notes that “all of the express and implied warranties of the Title on Sales (Title 2) are included in this Title (2A), revised to reflect the differences between a sale of goods and a lease of goods.”
Continue Reading ›

Our firm has recently had considerable success against automobile manufacturers for defective airbags. We are familiar with the technical issues involving airbags that deploy with excessive force, untimely deployment, and airbags that do not deploy at all.