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.
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