Nowak Ex Rel. Nowak v. Faberge USA Inc.

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-6-1994
Nowak, et. al. v. Faberge, Intnat'l
Precedential or Non-Precedential:
Docket 92-7660
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Recommended Citation
"Nowak, et. al. v. Faberge, Intnat'l" (1994). 1994 Decisions. Paper 72.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/72
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 92-7660 & 93-7051
ALISON NOWAK, a minor, by and through
her parent and natural guardian LEO NOWAK;
AMY NOWAK, a minor by and through her parent
and natural guardian, LEO NOWAK;
ELIZABETH NOWAK, individually; LEO NOWAK, individually
v.
FABERGE USA INC., t/d/b/a/ AQUANET,
a/k/a Faberge INTERNATIONAL, a/k/a MARIMO INC.;
PRECISION VALVE CORPORATION
FABERGE U.S.A., INC.
t/d/b/a AQUA NET, a/k/a
FABERGE INTERNATIONAL,
a/k/a MARIMO, INC.,
Appellants in 92-7660.
Faberge U.S.A., Inc.,
Appellant in 93-7051.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 90-01919)
Argued: July 2, 1993
Before: BECKER, ALITO and ROTH, Circuit Judges
(Opinion Filed July 6, 1994)
Michael J. Cefalo, Esquire (Argued)
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Lesa S. Gelb, Esquire
Kurt J. Kwak, Esquire
Cefalo & Associates
309 Wyoming Avenue
West Pittston, PA 18643
Attorneys for Appellees
Ernest J. Bernabei, III, Esquire
Harvey, Pennington, Herting & Renneisen, Ltd.
1835 Market Street
Eleven Penn Center, 29th Floor
Philadelphia, PA 19103
Patrick T. Ryan, Esquire (Argued)
Alfred W. Putnam, Jr., Esquire
Lawrence A. Nathanson, Esquire
Drinker, Biddle & Reath
1345 Chestnut Streets
Philadelphia Natinal Bank Building
Philadelphia, PA 19107
Attorneys for Appellant
OPINION OF THE COURT
ROTH, Circuit Judge:
This case arises from a tragic accident involving
appellant Faberge's hair spray product, Aqua Net. The appellee
Alison Nowak punctured an aerosol can of Aqua Net near a flame
and suffered severe injuries from the resulting fire. The jury
found that a defective valve system and inadequate warnings on
the hair spray can proximately caused Alison's injuries. She was
awarded damages of $1.5 million.
Appellant Faberge contends that the district court
failed to make a ruling as a matter of law that the product was
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defective. Under Pennsylvania tort law, the district court was
required on the basis of the averments made by the plaintiff to
determine whether or not Faberge's product was defective, both as
to the valve system and as to the warnings on the can, prior to
sending the case to the jury for its deliberations on whether the
facts in evidence supported these averments. The district court
did not explicitly make the findings as to defect. However, we
conclude that under Pennsylvania law the district court could
implicitly make these determinations by the fact that it sent the
case to the jury. Appellant Faberge bore the burden of
requesting an explicit ruling on this issue if it desired one.
The parties do not contest the main facts. Faberge
manufactures Aqua Net hair spray worldwide in both aerosol and
non-aerosol pump spray containers. Aqua Net contains a mixture
of butane or propane, as the aerosol propellant, and alcohol, as
a solvent for the propellant and the hair-holding agent. Alcohol
is flammable and both propane and butane are extremely flammable.
Aerosol cans of Aqua Net carry a warning on the back stating,
among other things, "Do not puncture" and "Do not use near fire
or flame."
On April 3, 1989, Alison Nowak, a fourteen-year-old
girl, tried to spray her hair with a newly-purchased aerosol can
of Aqua Net. The spray valve would not work properly. Alison
decided to cut open the can with a can opener. She thought she
could then pour the contents into an empty pump bottle of Aqua
Net which had a working spray mechanism. Alison was standing in
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the kitchen near a gas stove when she punctured the can. A cloud
of hair spray gushed from the can and the stove's pilot light
ignited the spray into a ball of flame. Alison suffered severe,
permanently disfiguring burns over 20% of her body.
Alison, along with her parents and her twin sister,
filed suit against Faberge. They claimed that Alison's injuries
had three causes: a manufacturing defect in the nozzle valve of
the aerosol can, inadequate warnings on the can, and a defect in
the design of the hair spray because it included a flammable
solvent and propellant. The Nowaks also filed a separate suit
against Precision Valve Corporation which had designed,
manufactured, and sold the valve mechanism used on the can. The
two lawsuits were consolidated and tried together. At trial the
district court granted Precision Valve's motion for a directed
verdict because plaintiffs had not demonstrated that the valve
was defective at the time it left Precision Valve's control. The
district court also directed verdicts against Alison's parents
and sister on their claims against Faberge.
At the conclusion of the presentation of evidence, the
district court submitted the case to the jury on special
interrogatories: 1) Was the valve system in the product
defective when it was distributed for sale by the defendant,
Faberge? 2) Was the product defective because it contained a
flammable solvent and propellant? 3) Was the product defective
because it did not contain adequate warnings? The jury answered
"No" to the second question, but it answered "Yes" to the first
and third questions, finding further that these particular
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defects were each a proximate cause of plaintiff's injuries. The
jury awarded $1.5 million in damages to Alison. On November 13,
1992, the district court denied Faberge's motions for judgment
n.o.v. and for a new trial. This appeal followed.
The district court's jurisdiction over this case rested
on 28 U.S.C. § 1228. This Court's jurisdiction arises from 28
U.S.C. § 1291. The parties agree that Pennsylvania law governs
this case. Federal courts sitting in diversity "must apply the
substantive law of the state whose laws govern the action."
Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir.
1990) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).
This Court's review of the district court's decision to
submit the issues of product defect and causation to the jury is
plenary.
Under Pennsylvania law, whether a product is defective
under the facts alleged by the plaintiff is initially a question
of law to be answered by the trial judge. Mackowick v.
Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990). The
supplier of a product is the guarantor of its safety. A product
is considered to be defective "where the product left the
supplier's control lacking any element necessary to make it safe
for its intended use or possessing any feature that renders it
unsafe for the intended use." Azzarello v. Black Bros. Co., 391
A.2d 1020, 1027 (Pa. 1978). The determination of whether a
product is defective under Pennsylvania law is a two-stage
inquiry. Id. at 1025-26; Griggs v. BIC, 981 F.2d 1429, 1432 (3d
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Cir. 1992). Initially, the question of whether a product is
defective, given the facts as alleged by the plaintiff, is a
question of law to be answered by the trial judge. If the judge
determines as a matter of law that Pennsylvania's social policy
supports placing the risk of loss on the manufacturer in the
situation alleged by the plaintiff, then the case goes to the
jury for a determination as to whether the facts alleged by the
plaintiff are true. The Pennsylvania Supreme Court has stated
this proposition clearly:
Should an ill-conceived design which exposes
the user to the risk of harm entitle one
injured by the product to recover? . . .
[This is a question] of law and [its]
resolution depends upon social policy. . . .
It is a judicial function to decide whether,
under plaintiff's averment of the facts,
recovery would be justified; and only after
the judicial determination is made is the
case submitted to the jury to determine
whether the facts of the case support the
averments of the complaint.
Azzarello, 391 A.2d at 1025-26.
Under Pennsylvania strict liability law, a defect may
be in the warnings given for the use of the product as well as in
the design of that product. A product can be held to be
defective "if it is distributed without sufficient warnings to
notify the ultimate user of the dangers inherent in the product."
Mackowick, 575 A.2d at 102. In Mackowick, the Pennsylvania
Supreme Court reaffirmed Azzarello, explicitly holding that the
determination that a product is defective because of inadequate
warnings is initially a question of law to be answered by the
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trial judge. Id. See also Mazur v. Merck & Co., 964 F.2d 1348,
1366 (3d Cir.), cert. denied, 113 S. Ct. 463 (1992).
Our review of the record in this case demonstrates that
the trial judge did not make an explicit determination, prior to
sending the case to the jury, that Faberge's product was
defective, either as to the spray mechanism or as to the warnings
on the can. The Nowaks argue that the judge implicitly made the
necessary threshold legal finding in three ways: by sending the
case to the jury, by denying Faberge's motion for a directed
verdict, and by ruling against one of Faberge's motions in limine
that challenged the Nowaks' ability to present evidence on the
inadequacy of the warning. The Nowaks also argue that Faberge
failed to request a specific ruling by the judge that its product
was defective. Based on our reading of Pennsylvania law and our
review of the record, these arguments are valid.
Faberge asserts that the Azzarello threshold
determination by the trial court should be made explicitly. We
agree that this is desirable. Given the many complex and fact-
based considerations involved, requiring an explicit ruling by
trial courts on this often difficult question of social policy
would increase the instructive value of the holding for other
courts, for potential plaintiffs, and for manufacturers who seek
guidance from the courts' products liability decisions. Explicit
rulings would also improve the clarity of the trial court record
for purposes of appellate review.1 However, the Pennsylvania
1
See e.g. Childers v. Joseph, 842 F.2d 689, 697 (3d Cir. 1988)
(remanding for development of the record as to the district
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Superior Court, sitting in banc in review of a strict liability
case, has held that the Azzarello threshold determination can be
made implicitly:
Nothing in Azzarello precludes a manufacturer
or supplier, by appropriate motion, from
asking the trial court to make explicit its
ruling on the threshold determination of
social policy that Azzarello requires. In
the absence of such a motion, it will be
presumed that the court, by permitting the
case to go to the jury, resolved the
threshold determination against the
defendant.
Dambacher by Dambacher v. Mallis, 485 A.2d 408, 423 n.6 (Pa.
Super. 1984) (in banc), appeal dismissed, 500 A.2d 428 (Pa.
1985). In another recent Pennsylvania Superior Court case, also
reviewing a trial court's decision in a strict liability action,
the court noted:
[T]he record below contains no indication
that such an analysis was undertaken by the
lower court. While our prior cases have not
explicitly required as of yet an on-the-
record analysis, or even a reference that a
risk-utility analysis was made, we note that
either would facilitate an appellate court's
analysis.
Marshall v. Philadelphia Tramrail, 626 A.2d 620, 625 n.2 (Pa.
Super. 1993).
This Court gives "due regard" to the decisions of
Pennsylvania's intermediate appellate courts as "indicia of how
the state's highest court would decide a matter." Ciccarelli v.
Carey Canadian Mines, Ltd., 757 F.2d 548, 553 n.3 (3d Cir. 1985).
court's finding concerning "unreasonable dangerousness."). See
also Hon v. Stroh Brewery Co., 835 F.2d 510, 514 (3d Cir. 1987);
Fravel v. Suzuki Motor Co., 486 A.2d 498, 502 n.3 (Pa. Super.
1984).
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Based on the Pennsylvania Superior Court's statements in
Dambacher and Marshall and our review of the record here, we
conclude that the district court, by sending the case to the
jury, implicitly made the necessary threshold ruling required
under Azzarello.
Given Dambacher, we also hold that, if Faberge had
desired an explicit ruling on defect, it bore the burden of
requesting such a determination by the trial judge. Our
examination of the record here has uncovered no such request. We
note that a federal district court in this circuit, in a strict
liability case applying Pennsylvania law, has held, in response
to a motion by the defendant requesting a specific threshold
ruling under Azzarello, that: "If a request is made by a party,
the trial judge should be required to articulate the reasons for
his/her decision on the question of 'social policy' . . .."
Shetterly v. Crown Controls Corp., 719 F. Supp. 385, 388 (W.D.
Pa. 1989) (citing Dambacher, 485 A.2d at 423 n.6).
We once again urge that implicit rulings not be
utilized. Indeed, we have previously criticized a district court
for making the determination that a product was defective in the
form of an evidentiary ruling. We noted in that case that:
We are puzzled by the district court's
decision to make this legal determination in
the posture of an evidentiary ruling. The
legal determination of whether a product is
"unreasonably dangerous" under Pennsylvania
law is tantamount to -- and should more
appropriately have been -- a ruling made upon
motion for summary judgment or a directed
verdict.
Childers v. Joseph, 842 F.2d 689, 696 n.7 (3d Cir. 1988).
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While the Pennsylvania courts have so far held that the
threshold social policy ruling required by Azzarello can be made
implicitly, appellate review benefits from a clear and explicit
ruling by the trial court. The threshold decision concerning
whether a product is defective as a matter of law can be
difficult to make: "In making this determination, the judge acts
as a combination social philosopher and risk-utility analyst."
Ellis v. Chicago Bridge & Iron Co., 545 A.2d 906 (Pa. Super.
1988). Courts and commentators have suggested several factors to
be considered in making this complex determination. See
Dambacher, 485 A.2d at 423 n.5.2 See also Azzarello, 391 A.2d at
2
Dambacher cites two lists of factors to be considered when
making the social policy decision required by Azzarello. The
first, adopted by the California Supreme Court, includes: the
gravity of the danger posed by the challenged design; the
likelihood that such a danger would occur; the mechanical
feasibility of a safer design; the financial cost of a safer
design; and the adverse consequences to the product and to the
consumer that would result from a safer design. See Barker v.
Lull Eng'g Co., 573 P.2d 443, 455 (Cal. 1978). The second,
drafted by Dean Wade, includes:
(1) The usefulness and desirability of the
product--its utility to the user and to the
public as a whole.
(2) The safety aspects of the product--the
likelihood that it will cause injury, and the
probable seriousness of the injury.
(3) The availability of a substitute product
which would meet the same need and not be as
unsafe.
(4) The manufacturer's ability to eliminate
the unsafe character of the product without
impairing its usefulness or making it too
expensive to maintain its utility.
(5) The user's ability to avoid danger by
the exercise of care in the use of the
product.
(6) The user's anticipated awareness of the
dangers inherent in the product and their
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1025-26; Lobianco v. Property Protection, Inc., 437 A.2d 417,
424-25 (Pa. Super. 1981). We reiterate that a specific ruling by
the district court on these factors, whether the claimed defect
be of design or of inadequate warning, would facilitate our
review.
For the reasons stated above, however, we find that the
district court implicitly made the threshold risk-utility
determination that appellant's product was defective under the
facts, as alleged, by sending this case to the jury. We conclude
that this is a sufficient determination under Pennsylvania law.
We will, therefore, affirm the verdict and judgment of the
district court.3
avoidability, because of general public
knowledge of the obvious condition of the
product, or of the existence of suitable
warnings and instructions.
(7) The feasibility, on the part of the
manufacturer, of spreading the loss [by]
setting the price of the product or carrying
liability insurance.
John W. Wade, On the Nature of Strict Tort Liability for
Products, 44 Miss. L.J. 825, 837-38 (1973) (footnote omitted).
3
We have reviewed Faberge's other claims of error and find them
to be without merit.
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