noting that the inference has been applied to cases in which the malfunction was such as to cause the product's disappearance
How later courts described this case
- noting that the inference has been applied to cases in which the malfunction was such as to cause the product's disappearance
- setting out prevailing Pennsylvania law on this subject and explaining that “malfunction theory permit[s] ‘a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction’” (quoting Rogers v. Johnson & Johnson Prods., Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989))
- stating that under the malfunction theory, "the plaintiff does not have to specify the defect in the product"
- “[A] plaintiff does not present a prima facie malfunction theory case if the plaintiff’s theory of the case includes facts indicating that the plaintiff was using the product in violation of the product directions and/or warnings. In such a case, no reasonable jury could infer that an unspecified defect caused a malfunction when the more likely explanation 1s abnormal use.”
Written by the judges who cited it.
The opinion
Justice SAYLOR,
Concurring.
I join the majority opinion, subject to a few modest differences.
Principally, in matters premised upon malfunction theory, I would specifically discontinue the concept of a plaintiff “presenting a case[-in-chief] free from abnormal uses” or secondary causes, Majority Opinion, at 412, 980 A.2d at 541, as I believe this language is ambiguous and fosters gamesmanship. 1 Rather, I would simply align our jurisprudence with the prevailing view that the plaintiff bears the burden of proffering evidence that, if credited, negates reasonable alternative causes of the malfunction. See Plaintiff’s Proof of a Prima Facie Case § 15:18 (2009); Restatement (Third) of Torts, Products Liability § 3 cmt.d (1998). I would also define the term “reasonable alternative causes” to mean causes that are as or more likely to have resulted in a malfunction, as compared to the possibility of a defect.
The majority references the essential requirement of negating other causes, see Majority Opinion, at 411-14, 980 A.2d at 541-42, but declines to apply it in this case. See id. at 420, 980 A.2d at 547 (indicating that “this case does not turn on ... whether the resultant wear and tear of the prior years of *424 successful use was a cause of the malfunction or whether that potential wear and tear is part of the Plaintiffs case-in-chief or the Manufacturer’s theory of the case”). This is my main point of difference, as I believe it was Appellant’s burden to address ten years’ wear and tear as an obvious possible cause of the malfunction. Indeed, I regard the prolonged-use factor in a malfunction-theory case, which the majority treats as dispositive, and the other-causes aspect, as being integrally interrelated. Accord Barnish v. KWI Bldg. Co., 916 A.2d 642, 648 (Pa.Super.2007) (“Plaintiff/Appellants did not present a case-in-chief free of reasonable, secondary causes, e.g., wear and tear from prolonged use, which is necessary to establish a prima facie case of product liability under the malfunction theory.”). I also differ with the majority to the degree it suggests that product inactivity or failure during expected lifespan is necessarily sufficient to create a jury issue, see Majority Opinion, at 421-22, 980 A.2d at 547-48, since, for example, neither of these circumstances, in and of itself, accounts for the possibility that the system was damaged during its prolonged period of use. 2
Finally, I note that the majority opinion discusses the requirements for a Section 402A claim, but does not mention the “unreasonably dangerous” requirement. Compare Majority Opinion, at 411, 980 A.2d at 541, with Restatement (Second) § 402A (1965). In this regard, I merely note that the proper approach to the foundational elements of a strict-liability claim is a subject in current controversy in this Court. See Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1229-49 (Pa.2009) (Saylor, J., dissenting).
Chief Justice CASTILLE joins this concurring opinion.
. For example, in this case, Appellants take the position that, as long as they do not mention any potential alternate causes for the failure of the fire suppression system at the pre-trial stage, apparently- no matter how obvious or likely the alternative causes, they are entitled to a jury trial. See, e.g., Brief for Appellants at 9-11. It is a plaintiff's burden, however, to advance a prima facie case of product defect, and, as the majority explains, malfunction theory functions merely as a principle channeling the use of circumstantial evidence and does not alter the overall burden allocation. Therefore, in a case in which the plaintiff relies on malfunction theory, where there are alternate causes which appear as or more likely as a possible product defect to have resulted in a malfunction, the plaintiff must address them in order to state a prima facie case.
. Because of the multitude of factors that could affect a product during a decade of use, it seems to me that it would be very difficult for a plaintiff to create a jury issue under malfunction theory after such extended period. At a minimum, I believe, the plaintiff would need to present evidence demonstrating how the product was protected from damage, inspected, and maintained throughout the period of its use.