Pavlik v. Lane Ltd./Tobacco Exporters International

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
2-4-1998
Pavlik v. Lane Ltd/Tobacco
Precedential or Non-Precedential:
Docket 97-1121,97-1199
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Recommended Citation
"Pavlik v. Lane Ltd/Tobacco" (1998). 1998 Decisions. Paper 24.
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Filed February 4, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 97-1121 and 97-1199
GEORGE PAVLIK, Administrator of the Estate of
STEPHEN MICHAEL PAVLIK; GEORGE PAVLIK,
in His Own Right
v.
LANE LIMITED/TOBACCO EXPORTERS INTERNATIONAL,
Third-Party Plaintiff
v.
KEEN (WORLD MARKETING) LIMITED; GEORGE PAVLIK;
REGINA PAVLIK, h/w,
Third-Party Defendants
George Pavlik, Administrator of the Estate of
Michael Pavlik and George Pavlik, in his own right,
Appellant in No. 97-1121
(D.C. Civ. No. 95-cv-04582)
GEORGE PAVLIK, Administrator of the Estate of
STEPHEN MICHAEL PAVLIK, in his own right,
Appellant in No. 97-1199
v.
KEEN (WORLD MARKETING) LIMITED
(D.C. Civ. No. 96-cv-02221)
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
Argued: September 22, 1997
Before: BECKER, Chief Judge,* SCIRICA, and McKEE,
Circuit Judges.
(Filed February 4, 1998)
JOANNE W. RATHGEBER, ESQUIRE
(ARGUED)
Rathgeber & Associates
111 East Court Street
Doylestown, PA 18901
Attorney for Appellant George Pavlik
DENNIS L. PLATT, ESQUIRE
(ARGUED)
JENNIFER S. BRESLIN, ESQUIRE
Sweeney & Sheehan, P.C.
1515 Market Street
Three Penn Center Plaza
Philadelphia, PA 19102
Attorneys for Appellee Lane Limited/
Tobacco Exporters International
JEFFREY N. GERMAN, ESQUIRE
(ARGUED)
German, Gallagher & Murtagh
200 South Broad Street, Suite 500
Philadelphia, PA 19102
Attorney for Appellee,
Keen (World Marketing) Limited
OPINION OF THE COURT
BECKER, Chief Judge.
This is an appeal in a strict product liability case brought
by plaintiff George Pavlik, administrator of the estate of
Stephen Pavlik, a 20 year old man who died as the result
_________________________________________________________________
*Judge Becker became Chief Judge as of February 1, 1998.
2
of self-administered butane inhalation. The district court
granted summary judgment in favor of the defendants,
Keen (World Marketing) Ltd. ("Keen") and Lane
Limited/Tobacco Exporters International ("Lane"), the
manufacturer and distributor respectively of "Zeus" brand
butane fuel, the product that was close-at-hand when
Stephen collapsed, and which plaintiff alleges to be the
cause of Stephen's death. The butane was sold in 5.3 ounce
cans, primarily as fuel for cigarette lighters. The only
relevant warning, printed on the back panel of the can,
reads "DO NOT BREATHE SPRAY". The gravamen of the
plaintiff's claim is that the Zeus brand can is defective
because this warning inadequately warns potential users
like Stephen Pavlik of the extreme hazards of butane
inhalation.
The district court held that the plaintiff's failure to warn
claim fails for two reasons. First, the court determined that
there was insufficient evidence in the record to prove that
Stephen actually inhaled from the Zeus can on the night of
his death, as opposed to the "Clipper" brand butane cans
subsequently found buried in his bureau drawer.
Alternatively, the court concluded that Stephen was already
aware of the dangers of serious bodily injury associated
with inhaling butane, and that a more specific warning
would not have affected his conduct. The court reasoned
that the alleged inadequate warning was therefore not the
proximate cause of Stephen's injury. The court based this
latter conclusion primarily on the fact that Stephen had
also purchased and used cans of Clipper brand butane and
therefore was presumed to have had notice of Clipper's
more detailed warning.
We believe that both of these conclusions are flawed.
First, there is scientific evidence in the record that the
onset of Stephen's ultimately fatal reaction to the butane
fumes could have been quite sudden, which, combined with
evidence that only the Zeus can was in close proximity to
him at the time the injury occurred, would permit a jury to
infer that Stephen had in fact inhaled from the Zeus can.
Second, we conclude that plaintiff has raised genuine
issues of material fact on the defendant's proximate cause
challenge.
3
Under Petree v. Victor Fluid Power, Inc., 831 F.2d 1191(3d Cir. 1987), to succeed in their causation defense,
defendants must demonstrate that Stephen was fully aware
of the risk of bodily injury posed by Zeus butane prior to
the accident. Plaintiff, however, has successfully
undermined defendants' claim that the text of the Zeus and
Clipper warnings provided sufficient notice to break the
causal chain, and he has identified genuine issues of fact
concerning alleged warnings given by Stephen's mother, the
other evidence on which defendants' rely. In the absence of
direct evidence about Stephen's knowledge of the serious
consequences of butane inhalation, and given the
inconclusiveness of what Stephen's mother is purported to
have told him, there is a genuine issue of material fact on
the causation issue, and hence we will reverse and remand
with respect to the product liability claim.
We do, however, affirm the district court's grant of
summary judgment on plaintiff's intentional infliction of
emotional distress claim. We agree with the district court
that there is insufficient evidence in the record to support
a conclusion that defendants' conduct in this matter has
been extreme and outrageous, the standard under
Pennsylvania law for establishing that tort.
I. Background Facts and Procedural History
On April 10, 1994, at about 2:30 a.m., plaintiff George
Pavlik was asleep on his sofa when he was awakened by
the sound of his twenty-year-old son, Stephen, arriving
home after having spent the evening with his sister and
friends. Shortly thereafter, Mr. Pavlik heard a loud"thud"
coming from an upstairs room. When he investigated this
unusual sound, Pavlik found Stephen lying on thefloor of
his bedroom, gasping for breath. Pavlik immediately called
the police and began to perform CPR. Paramedics soon
arrived and unsuccessfully attempted to revive Stephen. He
was pronounced dead later that morning.
The coroner listed the cause of Stephen's death as
cardiac dysrhythmia complicating abusive hydrocarbon
inhalation. It is uncontroverted that this was the result of
Stephen's intentional inhalation of butane gas. At the time
4
of his death, a canister of Zeus brand butane was found
atop Stephen's bedroom bureau. Warning language on the
front of the Zeus can reads:
DANGER
CONTENTS EXTREMELY FLAMMABLE
READ CAREFULLY OTHER CAUTIONS ON THE BACK
PANEL
The warning label on the back panel of the can reads:
PRESSURIZED CONTAINER:
PROTECT FROM SUNLIGHT AND DO NOT EXPOSE TO
TEMPERATURE EXCEEDING 120F. DO NOT PIERCE
OR BURN, EVEN AFTER USE. DO NOT SPRAY ON A
NAKED FLAME OR ANY INCANDESCENT MATERIAL.
DO NOT USE NEAR FIRE OR FLAME OR WHILST
SMOKING.
DO NOT BREATHE SPRAY
KEEP OUT OF REACH OF CHILDREN
Shortly after Stephen's death, Mr. and Mrs. Pavlik searched
their son's room and found seven more cans of butane
hidden under Stephen's underwear in a drawer of the
bureau. Five of these cans were Zeus brand butane, and
the other two bore the Clipper brand name. The back panel
of the Clipper can warns:
CAUTION:
PRESSURIZED CONTAINER. PROTECT FROM
SUNLIGHT AND DO NOT EXPOSE TEMPERATURE
EXCEEDING 50C. DO NOT PIERCE OR BURN, EVEN
AFTER USE. DO NOT SPRAY ONTO A NAKED FLAME
OR ANY INCANDESCENT MATERIAL.
USE ONLY DIRECT FILLING
AEROSOL PRODUCT
UN 1950
LIGHTER REFILL
CONTAINS BUTANE
FLAMMABLE KEEP AWAY FROM SOURCES OF
IGNITION-NO SMOKING.
KEEP OUT OF REACH OF CHILDREN DELIBERATELY
INHALING THE CONTENTS MAY BE HARMFUL OR
EVEN FATAL.
5
In contrast to the Zeus can, the Clipper front panel
contains no additional warning or language directing the
user to consult the back panel.
Plaintiff filed the present lawsuit against Lane, the United
States distributor of Zeus brand butane, alleging strict
product liability for failure to warn and intentional infliction
of emotional distress. Lane joined Keen as a third-party
defendant. The manufacturer of Clipper brand butane is
not a party to this lawsuit.
Following discovery, defendants moved for summary
judgment. According to the defendants, Stephen's allegedly
fatal inhalation was not his first attempt at inhaling
butane. Rather, they characterize Stephen's conduct as an
attempt to "get high" in deliberate disregard of all warnings.
They contend that, on at least two prior occasions, Stephen
had been caught in the act by his mother, and that on both
occasions she had warned him that his abuse of butane
was dangerous. Additionally, they contend that Mrs. Pavlik
had threatened Stephen in 1992 that he would be thrown
out of the family home if he continued his butane abuse.
Accordingly, defendants argued that plaintiff could not
establish that the alleged inadequate warning was the
cause-in-fact and proximate cause of Stephen's death.
Defendants further claimed that their conduct in allegedly
failing to provide an adequate warning was not sufficiently
extreme and outrageous to permit recovery for intentional
infliction of emotional distress.
The district court granted the summary judgment motion
on both counts. Plaintiff's motion for reconsideration was
denied, and this timely appeal followed. The district court
had jurisdiction under 28 U.S.C. S 1332. We have appellate
jurisdiction over a final order of the district court pursuant
to 28 U.S.C. S 1291. We set forth our familiar plenary
standard of review of a grant of summary judgment in the
margin.1 We explain the facts bearing on the present
motion in greater detail infra.
_________________________________________________________________
1. See Knabe v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997)
(noting plenary standard of review). The motion should be granted if "the
pleadings, depositions, answers to interrogatories, and admissions on
6
II. The Failure to Warn Claim
A. Section 402A
The Pennsylvania Supreme Court, whose law we are
bound to follow as a court exercising diversity jurisdiction,
has adopted S 402A of the Restatement (Second) of Torts,
which imposes strict liability on the purveyor of a product
in a defective condition "unreasonably dangerous to the
user or consumer." See Webb v. Zern, 220 A.2d 853 (Pa.
1966). Under S 402A, an otherwise properly designed
product may still be unreasonably dangerous (and therefore
"defective") for strict liability purposes if the product is
distributed without sufficient warnings to apprise the
ultimate user of the latent dangers in the product. See
Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997).
To recover under S 402A, a plaintiff must establish: (1)
that the product was defective; (2) that the defect was a
proximate cause of the plaintiff's injuries; and (3) that the
defect causing the injury existed at the time the product left
the seller's hands. See id. (citing Berkebile v. Brantly
Helicopter Corp., 337 A.2d 893, 899 (Pa. 1975)). In the
context of a failure to warn case, to satisfy the second
prong, the plaintiff must establish that it was the total lack
or insufficiency of a warning that was both a cause-in-fact
and the proximate cause of the injuries. See Greiner v.
Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir.
1976); Conti v. Ford Motor Co., 743 F.2d 195, 197 (3d Cir.
1984). While the question of causation in Pennsylvania is
normally for the jury, "if the relevant facts are not in
dispute and the remoteness of the causal connection
between the defendant's negligence and the plaintiff's
_________________________________________________________________
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). The non-moving party
must adduce evidence "sufficient to establish the existence of [every]
element essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In evaluating the sufficiency of this evidence, we must grant all
reasonable inferences from the evidence to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
7
injury clearly appears, the question becomes one of law."
Conti, 743 F.2d at 197-98 (quoting Liney v. Chestnut
Motors, Inc., 218 A.2d 336, 338 (Pa. 1966)).
To reach a jury on a failure to warn theory of liability, the
evidence must be such as to support a reasonable
inference, rather than a guess, that the existence of an
adequate warning might have prevented the injury. See id.
at 197. As we develop infra, the plaintiff enjoys the benefit
of a rebuttable presumption that an adequate warning
would have been heeded if it had been provided; however,
one way the defendant can rebut this presumption is by
demonstrating that the plaintiff was previously fully aware
of the risk of bodily injury posed by the product. The
district court agreed with defendants that such a prior
awareness did exist in this case and that there was
insufficient evidence in the record to support a reasonable
inference that an adequate warning on the Zeus can might
have prevented Stephen Pavlik's death. Additionally, the
court held that plaintiff's S 402A claim fails for lack of
causation because there was insufficient evidence
demonstrating that Stephen even inhaled from the Zeus
can on the morning of April 10, 1994. We consider both
arguments below.
B. Did Stephen Inhale from the Zeus Can?
The district court held that summary judgment was
appropriate because a jury would have to speculate that it
was the Zeus can (as opposed to a Clipper can) from which
Stephen inhaled on the night of his death. The court found
that the only evidence in the record indicating that Stephen
inhaled Zeus butane was the fact that a Zeus can was
found on his bureau, while all the Clipper cans (plus other
Zeus cans) were found buried in his bureau drawer, and
that this alone was insufficient to create a genuine jury
question. We disagree.
Plaintiff points out that the onset of Stephen Pavlik's fatal
reaction had to have been sudden, and thus it was more
likely than not that he would neither have had the time nor
the wherewithal to bury the can that he actually had used
in his bureau drawer. Thus, plaintiff reasons that Stephen
must have inhaled from the Zeus can. As noted supra, we
8
must grant all reasonable inferences from the evidence in
favor of the non-moving party; moreover there is evidence
in the record that buttresses plaintiff's claim. For example,
an article attached to the affidavit of Earl Siegel, Pharm.D.,
describes the potential for "sudden sniffing death" caused
by butane abuse.2 See App. at 359-60. In addition, the
report prepared by Thomas J. Wallace, Ph.D., states that
"[d]efendants are well aware of the negative consequences
of Butane abuse and the fact that it can cause instant
death." App. at 353. Although this evidence might not
persuade a jury that Stephen's death was caused by the
Zeus can, the inference plaintiff would have us draw is both
logical and reasonable. One could reasonably (and easily)
infer from these reports that it is more likely than not that
it was the nearby Zeus can that triggered Stephen's death.
Therefore, the district court should not have granted
summary judgment on this ground.
C. Would a Better Zeus Warning Have Deterred Stephen
Pavlik?
The defendants' second argument in support of a grant of
summary judgment in their favor is considerably more
complicated. They contend (and the district court found)
that there was insufficient evidence in the record to support
a reasonable inference that a different warning on the Zeus
canister would have led Stephen Pavlik to act differently.
According to the defendants, Stephen had been previously
warned of the dangers of butane inhalation from three
_________________________________________________________________
2. In his brief to this court, plaintiff also cites a January 13, 1997,
letter-
report by Dr. Siegel which states that inhalation of butane can cause
death "within minutes". Appendix at 357. However, this document was
not in the record when the district court decided the defendant's
summary judgment motion. Plaintiff did attach the letter to his motion
for reconsideration in the district court, but under our rule in Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), when evidence is not
newly discovered, a party may not submit that evidence in support of a
motion to reconsider a grant of summary judgment. Since Dr. Siegel's
testimony was available (indeed, he even provided an affidavit which was
attached as an exhibit) prior to the filing of the plaintiff's original
answer
to the defendant's summary judgment motion, the January 13 letter
should not have been considered in the motion for reconsideration and
will not be considered here.
9
sources: (1) the warning on the Zeus can; (2) the warning
on the Clipper can; and (3) his mother. Based on these
combined warnings, the defendants contend that Stephen
was already aware of the dangers associated with butane
inhalation when he decided to inhale the contents of the
Zeus can on the night of his death. The district court
agreed and held that, even assuming that the Zeus warning
was inadequate, there was no evidence in the record that
an adequate warning would have had any deterrent value.
In support of their claim, the defendants rely on Conti,
supra; Overpeck v. Chicago Pneumatic Tool Co., 634 F.
Supp. 638 (E.D. Pa. 1986), aff'd, 823 F.2d 751 (3d Cir.
1987); and Powell v. J.T. Posey Co., 766 F.2d 131 (3d Cir.
1985). In all three of these cases, we concluded that the
allegedly defective lack of an adequate warning could not
have proximately caused the victim's injuries. In Conti and
Overpeck, there was evidence in the record that the victim
was already aware of the complained of danger prior to the
time of the injury. In Powell, while the victim was not aware
of the specific danger at issue prior to her injury, there was
no evidence in the record that she would have changed her
course of conduct had she been provided with the warning
she sought, and, in fact, there was evidence specifically
suggesting the contrary. The defendants nonetheless
submit that the facts here compel the same conclusion we
reached in Conti, Overpeck and Powell.
1. Proximate Cause in Failure to Warn Cases
Our precedents in this area of the law teach that, in a
failure to warn case, we focus our causation analysis on the
additional precautions that might have been taken by the
end user had the allegedly defective warning been different.
See Powell, 766 F.2d at 135. This analysis requires the fact
finder at trial or a court on summary judgment to"consider
not only what did occur, but also what might have occurred
. . . . Such a determination as to what might have happened
necessarily requires a weighing of probabilities." Remy v.
Michael D's Carpet Outlets, 571 A.2d 446, 449-50 (Pa.
Super. Ct. 1990) (citing Hamil v. Bashline, 392 A.2d 1280,
1286-87 (Pa. 1978)) (emphasis in original), aff'd sub nom.
Kimco Dev. Corp. v. Michael D's Carpet Outlets, 637 A.2d
603 (Pa. 1993).
10
Comment j to S 402A is directed in part to this weighing
process, providing that "[w]here a warning is given, the
seller may reasonably assume that it will be read and
heeded." Generally speaking, comment j sets forth a
presumption that works in favor of the manufacturer or
seller of a product where an adequate warning has been
provided.3 See Coffman v. Keene Corp., 608 A.2d 416, 421
(N.J. Super. Ct. App. Div. 1992) ("Coffman I"), aff'd, 628
A.2d 710 (N.J. 1993) ("Coffman II"); Technical Chemical Co.
v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972). From this, it
follows logically that the law should also presume that,
when no warning or an inadequate warning is provided, the
end-user would have read and heeded an adequate warning
had one been given by the manufacturer. See Coffman I,
608 A.2d at 421 (collecting cases following this logic); Wolfe
v. Ford Motor Co., 376 N.E.2d 143, 147 (Mass. App. Ct.
1978) (holding that the failure to give an adequate warning
"permits the inference that it would have alerted the user to
the danger and forestalled the accident."); but cf. Coffman
II, 628 A.2d at 717-18 (extension of comment j based more
on public policy than logic). Indeed, many jurisdictions
have construed comment j to provide just such a
presumption, referred to generally as the "heeding
presumption". See Coffman II, 628 A.2d at 720 (collecting
cases); Allan E. Korpela, Annotation, Failure to Warn as
Basis of Liability Under Doctrine of Strict Liability in Tort, 53
A.L.R. 3d 239 (1974). This presumption assists the failure to
warn plaintiff in satisfying his burden of showing proximate
cause. See Coffman II, 628 A.2d at 719.
While comment j has been adopted in Pennsylvania, see
Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971), to date the
Pennsylvania Supreme Court has not expressly decided
whether the heeding presumption would apply under
Pennsylvania's interpretation of S 402A. On two prior
occasions we have discussed this question without
_________________________________________________________________
3. It should be noted, however, that the comment j presumption will not
apply in those cases in which it is alleged that the warning provided,
while substantively adequate, suffers from communicative deficiencies
(e.g. small or otherwise illegible type) and is thus unlikely to convey
its
danger message to the user. We discuss this aspect of comment j infra
at pages 18-19.
11
predicting how the Court would rule, see Petree, 831 F.2d
at 1196 n.2, Overpeck, 823 F.2d at 756 & n.4; in those
cases, we found that even if the heeding presumption
existed, the defendants would have successfully rebutted it.
We now predict that Pennsylvania would adopt a
rebuttable heeding presumption as a logical corollary to
comment j. Since the very idea of imposing strict liability
for the failure to warn is premised on the belief that the
presence or absence of an adequate warning label will affect
the conduct of a product user, it would be illogical, and
contrary to the basic policy of S 402A, to accept that a
product sold without an adequate warning is in a "defective
condition", see Incollingo, while simultaneously rejecting the
presumption that the user would have heeded the warning
had it been given. Indeed, in its most recent (albeit limited)
discussion of comment j, the Pennsylvania Supreme Court
stated plainly that "the law presumes that warnings will be
obeyed." Davis, 690 A.2d at 190. We predict, therefore, that
Pennsylvania would agree that "[c]omment j provides ample
support for application of the rebuttable ``heeding'
presumption . . . to assist a plaintiff in proving the absence
of a warning proximately caused harm." Coffman, 608 A.2d
at 422.
While the heeding presumption benefits a failure to warn
plaintiff, it does not change the fact that he still bears the
burden of persuasion on the causation prong of his S 402A
claim. Accordingly, as we recognized in Petree and
Overpeck, the heeding presumption must be rebuttable,
and thus "[w]hen the opponent of the presumption has met
the burden of production thus imposed . . . the office of the
presumption has been performed; the presumption is of no
further effect and drops from the case." Overpeck, 823 F.2d
at 756 (citing Commonwealth v. Vogel, 268 A.2d 89 (Pa.
1970)). To get past the presumption and to a jury, the
opponent of the presumption need only introduce evidence
"sufficient to support a finding contrary to the presumed
fact." See McCormick on Evidence S 344 (3d ed. 1984).
Applied to the present case, this means that if Lane and
Keen can introduce evidence sufficient to support a finding
that Stephen Pavlik was "fully aware of the risk of bodily
injury, or the extent to which [his] conduct could contribute
12
to that risk, so as to be legally chargeable with the
consequences," see Petree, 831 F.2d at 1196, then the
presumption would be successfully rebutted and the
burden of production would shift back to Pavlik to come
forward with evidence demonstrating that an adequate
warning would have changed Stephen's behavior. At that
point, "only the facts or actual evidence from which the
presumption arose remain, free from any artificial effect, to
be considered along with other evidence." See Lynn v.
Cepurneek, 508 A.2d 308, 312 (Pa. Super. Ct. 1986)
(discussing general law of presumptions in Pennsylvania); 9
Wigmore on Evidence S 2487; cf. Overpeck, 823 F.2d at 756
& n.3 (Where "an inference that a warning would have
reminded a user of a known danger is unsupported by
independent evidence, such an inference is impermissible
as mere jury speculation.").
To prevail on summary judgment, however, defendants
must satisfy a more substantial burden. While they need
only produce evidence sufficient to support afinding
contrary to the presumed fact to rebut the presumption at
trial, see supra, to satisfy Rule 56 the record must show
that a reasonable fact finder would be bound tofind that
Stephen Pavlik was fully aware of the risk of bodily injury;
otherwise, we are presented with a genuine issue of fact for
the jury. With this standard in mind, we turn now to
determine whether the evidence cited by the defendants is
sufficient to establish (to the extent just described) that
Stephen Pavlik was fully aware of the risk of bodily injury
posed by butane inhalation prior to his accident.
2. Mrs. Pavlik's Warnings
There is evidence in the record indicating that Stephen
Pavlik's mother, who passed away approximately one year
after Stephen's death, knew that her son had inhaled
butane on at least two prior occasions, once in 1992 and
again in 1994. The coroner's certificate of identification, for
example, states that Mrs. Pavlik had caught Stephen
inhaling butane about two years before his death, though
she believed that he had since stopped. App. at 290.
Stephen's sister, Theresa, also testified that Mrs. Pavlik had
caught Stephen "doing something that's not right" with two
cans of butane sometime in 1992, and that Mrs. Pavlik had
13
told Stephen that if he continued, he would be thrown out
of the house. App. at 302-04.
In addition, Denise Johnson, a friend of Stephen's,
testified that Mrs. Pavlik had informed her that she had
caught Stephen inhaling butane:
A: . . . after Stephen's death, she had told me that he
had used it previously.
Q: Who's the "she"?
A: Mrs. Pavlik.
. . .
Q: Was the topic of the use of the butane discussed
[between you and Mrs. Pavlik] a lot?
A: No, not a lot, no. A couple times, but not a lot.
. . .
Q: Did Mrs. Pavlik indicate exactly what she said to,
like her son when she caught him?
A: I believe she did, but I can't remember exact words.
You know, it was a really long time ago.
Q: Do you remember any words to the effect that,
"The stuff 's dangerous"?
A: Of course, yes.
Supplemental Appendix at 75b-77b.4 It is this statement
upon which the defendants rely to show that Mrs. Pavlik
had warned Stephen of the dangers of butane inhalation.
This evidence, however, is not uncontroverted. Theresa
Pavlik consistently testified that Mrs. Pavlik did not know
specifically what Stephen was doing with the cans of
butane when the alleged 1992 incident occurred:
Q: Did your mother ever ask you what is your brother
doing with these cans?
A: Not that I remember.
Q: Did your mother ever indicate that she found out
what your brother was doing with these cans?
A: Specifically, no.
Q: Did your mother say, "I think he was inhaling or
_________________________________________________________________
4. It is unclear from the briefs and the deposition transcripts in the
record to which of the two (or possibly other) occasions noted above
Denise Johnson's testimony refers.
14
ingesting this material?"
A: No sir, not that I remember.
Q: Wasn't there any conversation between you and
your mother as to what your brother was doing
with this material?
A: Yes sir, there was. She was not sure exactly what
it was that he was doing with them. She just had
a feeling that it just was not right, whatever it was
he was doing with it.
Q: And did you indicate or did you suggest anything
as to what he may be doing with this material?
A: Not that I remember.
App. at 304-05. As for the second incident, in 1994,
Theresa Pavlik testified that neither she nor her mother
specifically confronted Stephen about butane inhalation at
that time:
Q: When you spoke to your mother in January of``94,
did she indicate that this was only the second time
she ever heard this laughing, the first time being
about --
A: Yes, sir.
Q: -- a year and a couple months earlier?
A: Yes, sir.
. . .
Q: Did she indicate that she spoke to her son again?
A: No, sir, not that I remember.
App. 307-08.
It is tempting to superimpose upon the record our own
street-wise assumption that everyone knows the dangers
(and warning signs) of butane abuse. But, as judges, we
cannot do so. Since we must decide whether Stephen Pavlik
was fully aware of the danger of bodily harm posed by
butane inhalation, and since there may be degrees of
apprehension of danger with respect to the seriousness of
harm, viewing this evidence in the light most favorable to
the plaintiffs, we cannot agree with defendants that it is
beyond dispute that Mrs. Pavlik's warning was sufficient to
break the causal chain. The jury may well find for
defendants, but it is a question for the jury.
15
First of all, while it appears that Mrs. Pavlik gave some
warning to Stephen, it is uncertain what the content of that
warning was. Next, since the content of Mrs. Pavlik's
warning is unclear, we cannot conclusively determine
whether it was adequate to put Stephen on notice of the
full extent of the risk of bodily injury, see Petree, supra,
posed by butane inhalation. Indeed, there is also a genuine
issue of material fact whether Mrs. Pavlik even knew what
Stephen was doing with the butane cans -- and hence
whether she was even capable of providing Stephen with
sufficient knowledge of the danger at issue.
Theresa Pavlik's testimony that Mrs. Pavlik had said "the
stuff's dangerous," is an insufficient basis for us to decide
as a matter of law that Stephen was sufficiently warned of
the danger at issue prior to his fatal inhalation, and
therefore that the heeding presumption has been rebutted.
This statement provides no more information than the
warning on the Zeus can that a user should not "breathe
spray." Indeed, it may actually provide less information,
since Mrs. Pavlik's admonition does not relate what exactly
about the butane is dangerous and/or what uses of the
product would be dangerous. Below we consider whether a
different result is commanded when we consider this
evidence in conjunction with the warnings on the Clipper
and Zeus cans.
3. The Clipper and Zeus Warnings
The defendants also argue that Stephen had the type of
adequate prior knowledge of the danger at hand that we
found in Conti and Overpeck, supra, because he had read
the warnings on the Clipper and Zeus cans prior to his fatal
inhalation. As we have noted throughout, to fall within the
scope of these cases, the record must demonstrate that
Stephen was fully aware of the risk of bodily injury posed
by butane inhalation. See Petree, supra . We deal first with
the Zeus warning. As a matter of basic logic, the
defendants' argument that Stephen read the Zeus label and
therefore a more detailed warning would not have altered
his course of conduct is not really a claim about causation
at all, but is a claim about the ultimate issue in this case
-- the adequacy of the existing Zeus warning under S 402A.
16
The initial determination of whether a warning is
adequate in Pennsylvania is a matter of law. See Nowak v.
Faberge USA, Inc., 32 F.3d 755, 757 (3d Cir. 1994), aff'g,
812 F. Supp. 492 (M.D. Pa. 1992); Davis, supra. Since, as
we develop below, we discern a genuine issue of material
fact regarding the adequacy of the Clipper warning, and
since we believe that Clipper more adequately warns of the
danger of using butane as an inhalant than does the Zeus
can, we cannot conclude that Stephen's awareness of the
Zeus label provides a reason for finding no causation. To
the contrary, based on the present record, we have serious
doubts that the Zeus warning sufficiently warns users of
the potentially fatal consequences of butane inhalation, and
we are not convinced of its adequacy under S 402A. More
specifically, the "DO NOT BREATHE SPRAY" warning
appears to give the user no notice of the serious nature of
the danger posed by inhalation, intentional or otherwise,
and no other language on the Zeus can does so. Yet, we
similarly cannot find that such a directive is inadequate as
a matter of law, and so we must leave the question for the
jury.5
The present case does not, however, present the typical
manner in which the adequacy of a warning becomes an
issue. Normally, it is only the warning on the defendant's
product -- here, Zeus brand butane -- whose adequacy
courts are called upon to consider. The twist in this case is
that the defendants and the district court have also made
the adequacy of the Clipper warning a central issue by
virtue of their proximate cause analysis. While the district
court did not make a formal finding regarding the legal
adequacy of the Clipper warning, it is apparent that its
proximate cause analysis incorporated a belief that the
Clipper warning would itself be adequate for S 402A
purposes.
The Clipper warning states, in small capital letters on the
back panel of the can, "Deliberately inhaling the contents
_________________________________________________________________
5. We make clear, however, that this conclusion presupposes that the
district court will first engage in the necessary Azzarello analysis. See
Nowak, 32 F.3d at 757 (citing Azzarello v. Black Bros. Co., 391 A.2d
1020, 1025-27 (Pa. 1978).
17
may be harmful or even fatal."6 The district court presumed
that Stephen Pavlik had read this warning because Stephen
had "apparently inhaled" Clipper brand butane at some
point. The basis for this inference is the fact that several
Clipper cans were found in Stephen's bureau drawer. Since
we must draw all inferences in favor of plaintiff, the non-
moving party, it cannot be conclusively determined that
Stephen inhaled Clipper butane from that fact alone. We
agree, however, that it is reasonable to infer that Stephen
had previously used the Clipper product in some manner or
other.
As we have explained, it is normally presumed, pursuant
to comment j, that when an individual uses a product he or
she has read and heeded any warning labels attached to
that product. However, there is an exception to this
presumption, implicit in cases that hold that the victim's
actual failure to read a warning label does not necessarily
bar recovery "where the plaintiff is challenging the
adequacy of the efforts of the manufacturer to communicate
the dangers of the product to the buyer or user." Nowak,
supra, 812 F. Supp. at 498; see also Baldino v. Castagna,
478 A.2d 807, 810 (Pa. 1984) (holding that drug
manufacturer can breach duty of reasonable care by
promoting product in such a way as to nullify printed
warnings). That is, in cases where the alleged failure to
warn is based on claims that a warning was given but was,
for example, printed in small or unreadable type, the
comment j presumption should not apply so as to compel
a verdict for the defendant. This is because manufacturers
cannot rely upon a presumption that the victim read a
warning to shield themselves from liability for warnings
that are inadequate precisely because they are not
presented in a manner sufficient to attract the user's
attention. See id.
In the present case, the inadequacies of the Clipper
warning alleged by plaintiff are both substantive (i.e. the
warning does not adequately describe the danger posed)
and communicative (i.e. the warning does not command the
attention of the user). To demonstrate the problems with
_________________________________________________________________
6. The full text of the Clipper warning label is set forth in Part I,
supra.
18
the Clipper warning, plaintiff primarily relies upon a report
by E. Patrick McGuire, who is offered as a warnings expert.
McGuire concludes that the Clipper warning is defective for
the following reasons:
1) The inhalant danger is not listed on the front panel
of the can, despite the fact that this is one of the
"primary biological hazards associated with the
foreseeable use of this product";
2) The warning fails to specifically warn of the
dangers of concentrating the product -- i.e. the
prohibitions about breathing the "contents" of the
can are misleading such that some readers "will
interpret this admonition to mean that a harmful
dosage level is only reached if the entire can is
inhaled";
3) The warning is set in conditional language, as
opposed to stating that inhalation is "likely" to
produce a fatal reaction.
App. at 329. McGuire's opinion raises genuine issues of fact
about the adequacy of the Clipper warning. On a
substantive level, we can reasonably infer from McGuire's
second and third critiques set forth above that even if
Stephen Pavlik had read the Clipper warning, he would not
have adequately been fully warned of the danger of bodily
harm posed by butane inhalation.
But even if the warning was substantively sound, that
might not be enough, for the case law suggests that factors
such as the placement and size of warning labels should
also be considered. The opinion of the district court in
Nowak, supra, surveyed the cases discussing these factors
and found that:
A manufacturer may be liable for failure to adequately
warn where its warning is not prominent, and not
calculated to attract the user's attention to the true
nature of the danger due to its position, size, or
coloring of its lettering. A warning may be found to be
inadequate if its size or print is too small or
inappropriately located on the product. The warning
must be sufficient to catch the attention of persons
who could be expected to use the product, to apprise
19
them of its dangers, and to advise them of the
measures to take to avoid these dangers.
Nowak, 812 F. Supp. at 497 (citations omitted). Although
our opinion on appeal in Nowak affirmed the verdict and
judgment of the district court, see Nowak, 32 F.3d at 759,
we did not expressly adopt this portion of the district
court's analysis. We do so here.
Following Nowak, we could also conclude from McGuire's
testimony that the Clipper warning was insufficient to
"catch the attention" of Stephen Pavlik. As McGuire noted
in his report, the Clipper warning is listed on the back
panel of the can. It is printed in relatively small type, of the
same font, color, and size as the instructions for use.
Indeed, we note that against the bright yellow label
background, the non-highlighted, black text of the warning,
in which the admonitions about avoiding extreme
temperatures, flammability, and keeping the product away
from children, run directly into the warning about
inhalation, may appear as a blur to the average user.
Thus, drawing all inferences from the record in plaintiff's
favor, we find that there is a genuine issue of material fact
whether the Clipper warning was sufficient to catch
Stephen Pavlik's attention and, by its terms, render an
additional warning on the Zeus can unnecessary. We reach
this conclusion regardless of whether we can apply
comment j and presume that Stephen read the warning (in
which case plaintiff 's expert testimony suggests that it is
substantively deficient), or whether the exception discussed
supra applies (in which case plaintiff has introduced
sufficient evidence of communicative inadequacies to raise
a question for the jury).
The defendants have pointed to no specific evidence in
the record that would render the Clipper warning sufficient
to defeat causation. Instead, defendants argue in their
briefs that Stephen Pavlik "deliberately disregarded" the
Clipper and Zeus warnings "in an attempt to misuse a
product for the sole purpose of getting high." While a jury
could certainly find the Clipper warning adequate and
reach this conclusion, the defendants do not cite to
evidence in the record demonstrating that a reasonable jury
20
could not find otherwise. Although we have thus far
considered defendants' evidence of the three possible
sources of Stephen's prior knowledge separately, we make
clear that even considering the evidence of the Clipper
warning in conjunction with the evidence of Mrs. Pavlik's
alleged warnings and the (otherwise inadequate) Zeus
warning, we are not persuaded that the defendants have
met their burden of rebutting the comment j heeding
presumption to the extent necessary to warrant summary
judgment.
Our conclusions here are not contrary to the results or
rationales of Conti, Overpeck, or Powell, cases relied upon
by defendants. Both Overpeck and Conti were concerned
with reminder warnings -- that is, those cases dealt with
the question whether an additional warning by the
manufacturer was needed when there was undisputed proof
that the victim was at one time aware of the specific danger
posed by the product. In Conti, the plaintiff was injured as
she was entering the passenger side of her husband's car.
The husband had failed to disengage the clutch when he
started the car and, as a result, it lurched backwards,
injuring the plaintiff as she tried to enter. Plaintiff alleged
that the defendant's failure to place a warning about
disengaging the clutch in the car's interior caused the
injury, and a jury agreed.
After the district court denied Ford's post-trial motion for
a judgment notwithstanding the verdict, this Court
reversed. We determined that the issue of causation should
have been decided in the defendant's favor as a matter of
law. Mr. Conti had testified that he knew that in"driving a
standard transmission you would have to depress the
clutch," and testified that he had read the portion of the
Owner's Manual to his car which stated "[o]n manual
transmission vehicles, depress the clutch pedal and place
the gear shift lever in the neutral position." Conti, 743 F.2d
at 198. In light of these admissions of actual awareness of
the danger, which would rebut the comment j heeding
presumption, we discerned no evidence in the record to
suggest that Mr. Conti would have paid any greater
attention to what he was doing when starting the car if
additional warnings had been contained in the operator's
manual or on a sticker in the car. See id. at 198-99.
21
In Overpeck, the plaintiff was injured when a tire
mounting tool manufactured by the defendant became
disengaged from a tire and struck him in the eye. The
780plaintiff brought suit alleging, inter alia, that the
manufacturer had failed to adequately warn him of this
danger. The jury found for the plaintiff, but the district
court granted a motion for judgment notwithstanding the
verdict concluding that the record was devoid of evidence
directly establishing that any warning would have caused
the plaintiff to act differently. We affirmed. See Overpeck,
823 F.2d at 757. This conclusion was based on the fact
that while Overpeck had apparently received no formal
advance warning, he specifically testified that he was aware
that the mounting tool might fly off during operation. See
id. at 755-56. In fact, he further indicated that he knew
how to prevent the precise injury caused in that case. See
id. Thus, we concluded that any additional warning would
have provided plaintiff with no new information, and"thus
would not logically have affected his behavior." Id. at 755.
In this case, we are not presented with similarly
uncontroverted evidence demonstrating that Stephen Pavlik
was aware at the time of his accident that inhaling butane
could cause sudden death or serious bodily harm. Unlike
Conti and Overpeck, we have no direct testimony
demonstrating the victim's knowledge. We only have
evidence before us that Mrs. Pavlik may have warned
Stephen (the content and adequacy of which is unclear and
hence in dispute), and, at most, the possibility, see S 402A
cmt. j, that he read a Clipper warning whose adequacy is
likewise at issue. Unlike Overpeck and Conti, therefore, we
are not dealing solely with the narrow question whether
there is independent evidence demonstrating that a
reminder warning would have made a difference. In this
case, there are genuine issues of fact concerning whether
Stephen Pavlik was adequately warned in the first instance
(i.e. was inhalation known to pose a danger of bodily harm),
and thus whether the heeding presumption has been
rebutted.
Moreover, and more importantly, we held in Petree that
the user's mere awareness of a hazard does not establish
that the user was fully aware of the risk of serious bodily
22
injury, such that the user should be legally accountable.
See Petree, 831 F.2d at 1196. In that case, the plaintiff was
injured when he was struck in the face by a steel bar which
was ejected from a hydraulic press being operated by his
fellow employee. The plaintiff alleged that the hydraulic
press was defective for lack of a warning regarding the
possibility that it could forcefully eject pieces of scrap
metal. See id. at 1192. Although there was evidence in the
record from the operator of the press and others indicating
some prior awareness of the complained of danger, we
found that the evidence did not demonstrate an awareness
of "the full extent that an adequate warning might have
provided," and thus held that the failure to warn claim
should have gone to the jury. See id. at 1196-97. Similarly,
in the present case the defendants' evidence does not
demonstrate that a reasonable jury could only conclude
that Stephen Pavlik was fully aware of the extreme nature
of the consequences he faced when he chose to inhale
butane.
The injury to the victims in Conti and Overpeck did not
result in death, the result that befell Stephen Pavlik here.
While our decision in those cases turned on deposition
testimony by the victims, defendants here obviously did not
have the opportunity to depose Stephen Pavlik and
determine what his exact level of knowledge was at the time
the injury occurred. However this is a distinction without a
difference, for it is not the mere lack of direct testimony by
the victim (which would be missing in any products case
resulting in death) that distinguishes this case from Conti
and Overpeck. We simply find that Pavlik has met his
burden of demonstrating that there is a disputed question
of fact concerning what Stephen knew and thus whether
additional information ex ante would have altered his
course of conduct. We also note that while Pavlik has met
his burden on summary judgment, he faces the more
difficult burden of demonstrating causation to the jury at
trial, and the evidence before us now might fall short of
that mark.
Powell does not command a different result. In that case,
the plaintiff, a hospital nurse, was injured when a hand-
tied restraining vest manufactured by the defendant and
23
designed to secure geriatric patients to a chair or bed was
removed by a patient, causing the patient to fall. The
plaintiff attempted to grab onto the patient as he fell,
resulting in an injury to the plaintiff's back. She brought
suit against the manufacturer for failure to adequately
warn of the danger of the patient's ability to remove the
vest by himself.
Evidence in the record indicated that the hospital had a
policy of using more secure restraining devices in addition
to hand-tied vests only on patients who posed a threat of
violence or escape. See Powell, 766 F.2d at 134. There was
also testimony that the patient involved in the accident was
not, at the time of the accident, a known threat. See id.
Thus, even if the additional warning desired by the plaintiff
in Powell had been affixed, there was no reason to believe
that the plaintiff would have acted any differently since she
produced no evidence that she would have diverged from
hospital policy with this particular patient (i.e. used
additional restraints on a non-threatening person) had she
been warned that patients using the defendant's vest could
untie themselves. See id. In short, although unlike Conti
and Overpeck in that Powell does not pose a scenario in
which the plaintiff was specifically aware of the complained-
of danger, the record made clear that even had she known
that patients could untie the defendant's vests themselves,
she would not have acted differently.
This case is far different from Powell because, as we have
explained, the record is not unequivocal as to Stephen
Pavlik's knowledge of the dangers posed by butane
inhalation and his likely course of conduct. Unlike the
defendant in Powell, which introduced the evidence of the
hospital policy to demonstrate that (even with the benefit of
a heeding presumption) plaintiff had not met her burden of
persuasion on the causation issue, here the defendants
have not directed us to similar evidence.7 Accordingly,
Powell does not control. In sum, although a jury may not
_________________________________________________________________
7. Moreover, Pavlik has introduced evidence that indicates that warnings
are heeded in the non-consumable products context presented by this
case. Thomas J. Wallace, Ph.D., for example, has stated very plainly that
"[e]ffective labels do warn and do deter." App. at 352.
24
find enough evidence here to find for Pavlik at trial, he has
introduced at least enough to create a genuine issue of
material fact precluding summary judgment.
III. Intentional Infliction of Emotional Distress
The district court also granted defendants' motion for
summary judgment on plaintiff's claim of intentional
infliction of emotional distress. The court found no evidence
in the record to support plaintiff's contention that
defendants' conduct was "extreme and outrageous" or
"beyond all bounds of decency." Op. at 11. We agree.
As we have explained in prior opinions, the Pennsylvania
Supreme Court has yet to decide whether a cause of action
for intentional infliction of emotional distress is cognizable
under Pennsylvania law, see Kazatsky v. King David
Memorial Park, Inc., 527 A.2d 988 (Pa. 1987) (leaving "to
another day" whether this cause of action is viable in the
Commonwealth), generating confusion among the courts
that have been presented with this type of tort claim.
Compare, e.g., Andrews v. City of Philadelphia, 895 F.2d
1469, 1486-87 (3d Cir. 1990), with Ford v. Isdaner, 542
A.2d 137, 139 (Pa. Super. Ct. 1988), and Small v. Juniata
College, 682 A.2d 350, 355 (Pa. Super. Ct. 1996). We have
consistently predicted, however, that the Pennsylvania
Supreme Court will ultimately recognize this tort. See Trans
Penn Wax Corp. v. McCandless, 50 F.3d 217, 232 (3d Cir.
1995); Silver v. Mendel, 894 F.2d 598, 606 (3d Cir. 1990);
see also Corbett v. Morgenstern, 934 F. Supp. 680, 683-84
(E.D. Pa. 1996) (noting confusion caused by Kazatsky and
our subsequent prediction).
We have also predicted that Pennsylvania would generally
follow the basic formulation of the tort found in S 46 of the
Restatement (Second) of Torts. See Trans Penn Wax, 50
F.3d at 232. Section S 46 provides that:
One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it for such bodily harm.
25
See also Small, 682 A.2d at 355 (citing S 46). We have
further held that S 46 liability will only be found where "the
conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, as to be regarded as atrocious, and utterly
intolerable in a civilized community." Restatement (Second)
of Torts S 46 cmt. d (cited in Kazatsky, 527 A.2d at 991;
Trans Penn Wax, 50 F.3d at 232). This is a heavy burden
for a plaintiff to meet, as recovery under S 46 has been
"highly circumscribed". Kazatsky, 527 A.2d at 991.
The thrust of plaintiff's S 46 claim is that Keen was
aware that butane inhalation was widespread and deadly,
but did nothing about it, while Lane was similarly put on
notice and failed to make inquiries into this danger. We
agree with the district court that the plaintiff has not
adduced sufficient evidence (the sum and substance of
which we have outlined in the margin) to justify afinding
that either defendant's acts in this regard amount to
outrageous conduct that is intolerable in a civilized society.8
_________________________________________________________________
8. With regard to Keen, plaintiff alleges that the company "refused" to
participate in programs or take independent actions designed to alert the
public to the dangers of inhalant abuse despite its knowledge of those
dangers. To illustrate this, plaintiff points to Keen's "refusal" to
contribute to a campaign of public interest television advertisements in
the United Kingdom and its purported failure to comply with proposals
made by Re-Solve, a manufacturer's association. The evidence in the
record, however, indicates only (1) that Keen was "not asked" to
contribute to the advertising campaign; and (2) that Keen offered
revisions to Re-Solve's proposals and decided to take no action when Re-
Solve did not respond. See App. at 385, 391-92. Plaintiff also argues
that, in response to a set of five recommendations by a British
government advisory council designed to curb butane inhalation abuse,
Keen only chose to adopt the one measure that it believed could also
prove profitable. See App. at 394, 396. While this may be true, and while
perhaps the act of following only one of many recommendations
proposed by an advisory group may appear suspect, we cannot conclude
that this act in this instance constitutes outrageous conduct.
The evidence against Lane, plaintiff contends, demonstrates a failure
to "learn about or prevent death from butane inhalation" after Lane was
sued in Massachusetts in 1989. However, it is unclear from the record
what the precise allegations in the Massachusetts case were, and we
26
See Small, 682 A.2d at 355 (court must initially decide
whether defendant's conduct was so extreme and
outrageous that recovery may be justified). Accordingly, the
district court's grant of summary judgment for defendants
will be affirmed on plaintiff's intentional infliction of
emotional distress claim. However, as explained above, the
order granting summary judgment on the failure to warn
claim will be reversed, and the case remanded to the
district court for further proceedings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
could only speculate that the case arose out of similar facts to those
alleged here. Moreover, the record only supports the conclusion that
Lane viewed the Massachusetts case as an "isolated incident" that did
not warrant further investigation. App. at 400. Furthermore, there is
nothing in the record to suggest that Lane was aware that butane was
being used as an inhalant prior to that lawsuit, and nothing that
suggests that Lane learned from that case that their present warnings
were inadequate. Plaintiff also offers other evidence of Lane's alleged
failure to inquire into the harmful effects of butane inhalation,
including
its alleged failure to question why Keen wanted to add the "DO NOT
BREATHE SPRAY" language to the Zeus label in 1987-88, and its alleged
failure to reevaluate the Zeus warning when other label changes were
proposed in 1992. Once again, we find nothing in the record that
demonstrates that Lane's knowledge of the butane abuse problem was
such that these actions are indicative of outrageous conduct.
27