Shaw v. Toyotomi America, Inc. , 101 Ohio App. 3d 54 ( 1995 )

Because I feel that the plaintiff failed as a matter of law to prove the existence of a defect in the manufacturer's product at the time that it left the manufacturer's hands, I dissent.

In order to establish a prima facie case of strict product liability based on a manufacturing defect, a plaintiff has the burden of proving that the defect existed at the time the product left the hands of the defendant. State Farm Fire Cas.v. Chrysler Corp. (1987), 37 Ohio St.3d 1, 6-7, 523 N.E.2d 489,493-495; Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 35 O.O.2d 404, 218 N.E.2d 185. Thus, "evidence of unsafe, unexpected performance of a product, while sufficient to infer the existence of a defect, satisfies but one of the three elements necessary for recovery. Plaintiffs are still required to demonstrate by a preponderance of direct or circumstantial evidence that the claimed defect was present when the product left the hands of the manufacturer and proximately caused the claimed injuries." State Farm, 37 Ohio St.3d at 6-7,523 N.E.2d at 494.

During his deposition, the plaintiff's expert, James D. Madden, P.E., testified as follows:

"Q: What was the cause of the fire in the tray?

"A: Leakage of kerosene.

"Q: And from where did the kerosene leak?

"A: Somewhere in the apparatus.

"Q: Can you be any more specific?

"A: Well, it would be any place that didn't hold together properly.

"Q: Have you identified any place in this heater that didn't hold together properly?

"A: No."

"* * *

"Q: And barring leakage, do you know do [if] these heaters perform within their design parameters?

"A: I don't know what the design parameters are so I wouldn't know whether they perform within them."

In an affidavit submitted with the plaintiff's memorandum contra the defendant's motion for summary judgment, Madden attested that "the most probable location for the source of the leak was the point where the removable fuel container makes its connection with the heater. * * *"

Testimony of a defect must be credible, specific, and related to the facts of the case. State Farm, 37 Ohio St.3d at 9-10,523 N.E.2d at 496-497; Moreland v. Ford Motor Co. (Dec. 18, 1992), Allen App. No. 1-92-61, unreported, 1992 WL 380275; Springer v.Am. Motors Corp. (Dec. 24, 1987), Crawford App. Nos. 3-86-33 and 3-86-34, unreported, 1987 WL 32137; Naugle v. Campbell Soup Co. (June 20, 1986), Henry App. No. 7-84-24, unreported, 1986 WL 7312. In the instant case, the plaintiff's expert could not even identify the defect, and at best can only point to the possible location of a kerosene leak. In my view, the plaintiff's expert testimony at best establishes that a defect may have existed. However, neither Madden's deposition testimony nor his rebuttal affidavit identifies the specific manufacturing defect and that this alleged defect existed when the heater left the manufacturer's hands.

"A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. Here, there was a complete failure of proof on an essential element, and therefore I feel the trial court properly granted summary judgment in favor of the defendant on the plaintiff's manufacturing defect claim.

Furthermore, the plaintiff failed to establish the existence of a design defect. The plaintiff's expert testified as follows during his deposition:

"Q: Well, you've testified that if you break and remake the connection such as where the can goes in, that would not be adequate protection, correct, against leakage?

"A: Well, of course any time you make and break a connection, every time you make and break a connection, you're stressing it a little bit. And it is very commonly the first place that you find leakage, if you ever find leakage in an item, so I'm simply saying that the design includes an aspect to it which is generally speaking less than desirable if you're dealing with toxic or flammable materials and I have not gotten enough information to see how well it was designed but I do know that the basic concept is not best. * * *

"Q: But based on what you told me a few minutes ago, you are not testifying that it was that particular connection which caused the leakage in this case?

"A: No, I have not identified that is the particular connection but it is the most probable location in the system if the rest of the system is solidly designed and I have not seen enough of the system in its pristine condition to know if it is solidly designed."

Such testimony is neither specific, credible, nor related to the facts of this case to support a strict product liability action based on a defective design theory. Furthermore, the plaintiff's rebuttal evidence is insufficient to establish a genuine issue of material fact. The plaintiff's expert points to four or more possible alternative design defects without establishing the existence of any one. SeeStinson v. England (1994), 69 Ohio St.3d 451, 633 N.E.2d 532, paragraph one of the syllabus. In my view, this is simply not enough to survive a motion for summary judgment. The plaintiff merely presented expert testimony that, in some way, the heater may have been defectively designed.

I would affirm the judgment of the trial court.