Products Liability Law Daily Jury must decide whether PAM spray cans defective in design and warning
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Wednesday, December 2, 2020

Jury must decide whether PAM spray cans defective in design and warning

By Pamela C. Maloney, J.D.

Whether PAM cooking spray cans were defectively designed and contained inadequate warnings because Conagra used A-70 propellant raised questions for the jury.

Two caterers who sustained serious burn injuries when an allegedly defective can of PAM cooking spray unexpectedly vented, causing a fire, provided sufficient evidence in the form of expert and personal testimony to raise questions as to whether the use of A-70 propellant in the product constituted a design defect and whether the label on the can was adequate to warn users of the danger, the U.S. District Court for the District of Connecticut ruled. The court granted the manufacturer’s motion for summary judgment on the caterers’ manufacturing defect claims and excluded the expert testimony proffered on that issue. The court also evaluated the testimony proffered by the caterers’ experts on the issues of design defect and inadequate warnings in light of Daubert standards, providing guidelines for admissibility of those opinions (Schmidt v. Conagra Foods, Inc., November 30, 2020, Underhill, S.).

The owners of a baking and catering company were deep frying potatoes in preparation for an event when a fire suddenly erupted in the kitchen of the residence in which they were cooking. Both women were injured but were able to escape the residence. Alleging that the fire was caused by a defective can of PAM cooking spray that unexpectedly vented, causing flammable material to ignite near the stove, the caterers filed a products liability lawsuit against Conagra Foods, the seller of PAM cooking spray. The complaint asserted violations of the Connecticut Products Liability Act, alleging that the spray can was defectively manufactured and designed and that Conagra had failed to provide adequate warnings. Conagra moved for summary judgment, arguing that there was no direct evidence linking a can of PAM spray to the fire or to the caterers’ injuries. Conagra has also moved to preclude several of the caterers’ experts.

Causation. Conagra argued that summary judgment was warranted because the caterers’ experts were not able to identify which one of a number of cans of PAM cooking spray found after the fire was the origin of the fire. Instead, Conagra maintained that the caterers’ deep-frying activities started the grease fire, which then caused two of the PAM containers to overheat and vent. Drawing all inferences in favor of the caterers, the court found that there was sufficient evidence in the record to support the caterers’ theory that the spray can at issue was the origin of the fire. The caterers had alleged that at least one PAM can had "vented" at some point during the fire and one of the caterers had testified that she saw a PAM can explode near the stove at the start of the fire. That testimony was consistent with the fire marshal’s investigation and with statements made to emergency personal immediately after the fire. In addition, a report submitted by the caterers’ fire origin expert ruled out other potential causes of the fire. Concluding that the question of whether the spray cans vented as a result of a grease fire or spontaneously due to a manufacturing or design defect could not be determined from the record and, therefore, Conagra’s motion for summary judgment on causation was denied.

Manufacturing defect. In support of their manufacturing defect claim, the caterers alleged that the spray can located near the stove had unexpectedly "vented" below the product’s intended design specification of 180 psi. However, the caterers did not present any direct evidence to establish that the spray can at issue contained any mistake in the assembly process that would have resulted in a product which differed from Conagra’s specifications or the company’s intended result. According to the court, the caterers’ experts primarily had focused their analysis on the design defect claims, providing little analysis that explained how the spray can itself was faulty. In addition, direct measurements of the spray can at issue, which were taken in connection with destructive testing, demonstrated that the can’s average thickness and strength at the bottom were consistent with Conagra’s specifications and refuted the manufacturing defect opinions offered by the caterers’ experts. Thus, summary judgment was granted as to the manufacturing defect claims.

Malfunction defect. The court also rejected the "malfunction theory" as an alternative basis for the caterers’ manufacturing defect claims. Although most product liability claims were based on direct evidence of a particular product defect, Connecticut courts have allowed plaintiffs to proceed under a malfunction theory when such evidence was unavailable. In this case, the subject spray can, although moderately damaged, was not completely destroyed and was available for inspection. Furthermore, the caterers had the opportunity to design, and had signed off on, the destructive testing protocol that was employed by a third-party lab. Finally, the direct measurements of the subject demonstrated that its average thickness was within specification.

Design defect. The caterers’ design defect claims were based on two purported defects in the PAM spray cans. First, the caterers contended that the U-shape design at the bottom of the spray cans failed to account for well-known variances in metal thickness and yield strength that were common during the manufacturing process. As a result, some cans could fail even below the low tolerance of 180 psi set by Conagra for vented cans. According to the caterers, these variances caused under-pressure venting. The caterers proffered testimony by three experts, each of whom offered a different theory to explain how a PAM can could vent below the designated tolerance. However, the court found that the reasoning used by each expert was flawed because it was based on the assumption that the cans vented at temperatures below the design specification of 180 psi. In order to raise a jury question, the caterers were required to present evidence that the allegedly defective can vented under pressure without presuming that the can had vented prematurely. In addition, the experts’ theories that it was possible for PAM cans to vent below 180 psi were inconsistent with the objective evidence in the record.

The caterers also alleged that the can itself was defective in that it failed to meet the requirements of a DOT regulation for transporting hazardous material. The court declared that the cited regulation was irrelevant to the design defect claim, and even if the caterers could establish that the allegedly defective can violated the regulation, that regulation only governed the transportation of hazardous materials and there was no claim that the caterers had been injured by the improper transportation of the can. Thus, Conagra’s motion for summary judgment on the design defect claims based on under pressure venting was granted.

Second, the caterers claimed that the use of A-70 propellant-a highly flammable compressed liquid-to propel the cooking spray out of the container was a design defect. According to one of the caterers’ experts, the use of A-70 propellant in a cooking spray can was inherently dangerous because of its propensity to create flash-fire fireballs when it leaked near a heat source. Conagra contended this design defect theory must also fail because the caterers were not able to explain how the can’s existing design, which ensured that the can would not vent "under intended and reasonable uses," was unreasonably dangerous. The court rejected Conagra’s argument, noting that it was undisputed that the A-70 propellant used in PAM cans was highly flammable and that at least two of the PAM cans were recovered from the fire in the "vented" position. From these undisputed facts, combined with the caterers’ description of the fire, a reasonable jury could find that the risks inherent in designing a can of cooking spray with a highly flammable propellant clearly outweighed the benefits of that design. Thus, summary judgment was denied with regard to the caterers’ design defect claims based on the use of A-70 propellant.

Failure to warn. The caterers had argued that the label on the PAM Original can, which warned consumers of the risks of leaving the can near a stove or other heat source, was inadequate because (1) it failed to warn them that the subject could "overheat;" (2) even though it stated that the can could burst if left on a stove or near a heat source, the label did not define what "near" or "on" meant; and (3) it did not include a "DANGER" warning or warn that the contents were "extremely flammable. The court agreed, explaining that although the PAM label explained that the contents were "under pressure," the label did not warn consumers specifically that the can contained A-70 propellant, thus presenting a factual question for a jury.

There was also a question as to whether the caterers would have been injured had an adequate warning been given. Conagra argued there was no evidence that the caterers would have changed their behavior had a more comprehensive warning label been provided because one caterer had testified during her disposition that she did not recall reading the warning label, and the other testified that she did not recall what the label said. However, both caterers stated that had the front label on the cans said "DANGER" and "EXTREMELY FLAMMABLE," they would not have purchased the PAM Original cooking spray. These statements were sufficient to raise a jury question as to the adequacy of the warnings given.

Expert testimony. In response to Conagra’s motion to exclude the testimony proffered by a number of the caterers’ experts, the court noted as a preliminary matter that any expert opinion pertaining solely to the manufacturing defect claim or design defect claim based on under-pressure venting was not admissible because summary judgment had been granted on those claims.

The court next examined ten opinions offered by the caterers’ rebuttal expert to determine whether they were offered to directly refute opinions rendered by Conagra’s supplemental expert reports and, if so, whether they were reliable and relevant under the Daubert standard. The court concluded that all but three of the opinions offered were in direct rebuttal to the new evidence offered by Conagra’s supplemental experts and, thus, were admissible.

The court also determined that the testimony proffered by the caterers’ fire origin expert was admissible because the expert had adhered to the generally accepted methodology set forth in the National Fire Protection Association’s Guide for Fire Investigations when performing his investigation and his conclusions took into account other possible causes for the fire, including the auto-ignition of the cooking oil in the pan being used by the caterers while deep frying the potatoes. However, the fire origin expert was not qualified to render an opinion as to the existence of any alleged manufacturing or design defects in the PAM can that exploded and, even if he had been qualified to testify on those issues, he provided no methodology or facts in his report to support his conclusion that the can was defective. Thus, his testimony on the defect issues was excluded.

In response to Conagra’s challenge to the admissibility of opinions proffered by the caterers’ engineering expert, the court determined that the engineer’s conclusion that the can at issue vented at a pressure below 180 psi was not admissible because it was based on a cooking simulation that was not a "scientifically valid" methodology which could be applied to the facts in issue. However, the FEA computer model that the engineering expert used to explain how the can could have vented below 180 psi due to a manufacturing defect in the can’s bottom was admissible because the modeling was performed by a qualified third party; it was not used to establish the precise temperature at which the can vented, but offered to establish that there could be variations in thickness at the bottom of the can; and the model provided a reliable method to explain variances in the measurements taken of the can’s bottom.

The court also found that the caterers’ engineer was qualified to offer an expert opinion regarding the engineering and design of aerosol cans and that his design defect opinions, which were supported by facts and analysis, including an analysis of Conagra’s own models, would assist the trier of fact.

The court also found that the expert who offered a mathematical model, based in part on "fracture mechanics," to conclude that the temperature of the can at issue due to heat transfer from the stove was less than 120 degrees Fahrenheit when it vented was admissible. Although the expert agreed that she was not an expert in the field of fracture mechanics, she was a common user of fracture mechanics and was educated through the doctoral level in fracture mechanics. The court concluded that the expert need not be an expert with respect to a specific mathematical model in order to rely on the model in formulating her report. The court further found that Conagra’s arguments that her opinions were unreliable because they amounted to speculation went to the credibility of her conclusions, not to their admissibility and thus, Conagra’s motion to strike her conclusions was denied.

Finally, the court determined that the caterers’ warnings expert, who had over 30-years of experience in the consumer product safety arena, was qualified to testify even though he did not have an advanced degree in engineering, and he lacked experience with aerosol can labels. However, his expert report was inadmissible because it did not mention or rely on any type of methodology, but simply listed various regulations authorized by the Federal Hazardous Substances Act and noted that Conagra failed to comply with those regulations, many of which were voluntary, in concluding that the can at issue could vent at a pressure less than 180 psi. In addition, the warnings expert failed to explain how other similar cooking spray cans complied with the various regulations listed or mention in his report how potential consumers understood and reacted to certain labels.

The case is No. 3:14-cv-1816 (SRU).

Attorneys: Kathleen L. Nastri (Koskoff Koskoff & Bieder, PC) for Emma Schmidt. Emily A. Ambrose (Blackwell Burke P.A.) for Conagra Foods, Inc

Companies: Conagra Foods, Inc.

MainStory: TopStory DesignManufacturingNews WarningsNews CausationNews ExpertEvidenceNews FoodBeveragesNews ConnecticutNews

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