Thurs,june26 440-yhc case-study
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Transcript of Thurs,june26 440-yhc case-study
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a) A fire occurred at the home of Spyro and Roula Kallivrousis in Cheshire, Connecticut at around 1pm on July 13, 2003. b) While Spyro was at work, his wife, Roula attempted to mow the lawn using their John Deere LX 178 lawn tractor.
i) However, the engine was running poorly and Roula could not finish mowing the lawn. ii) The couple had owned the lawn tractor for nearly five years without issues up until the spring of 2003, when Roula reported that the tractor had been backfiring and running roughly after a tune-up and maintenance at a John Deere dealer.
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c) Roula stopped mowing and parked the tractor in the west-most bay of the attached three-bay garage. d) Later that morning, Roula reportedly noticed a “different kind of smell” in the garage, which she described as being like the smell of antifreeze. e) She reportedly inspected the interior of the garage, but seeing nothing unusual, left in her car with her children. f) Around an hour and a half later, witnesses reported a fire, which the Cheshire fire department responded to and extinguished.
i) No one was injured, but the fire damaged a substantial portion of the residence.
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g) Fire marshals determined the fire originated in the west bay of the garage but could not pinpoint an exact cause or specific location. i) However, the marshals identified the lawn tractor as a “significant factor” in the cause of the fire.
h) After the homeowners filed a claim for the loss with plaintiff, plaintiff hired an investigator who concluded that the lawn tractor was the source of the fire.
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a) Defendant argues that the trial court jury must have speculated to find liability because of a lack of evidence that the tractor, or the electrical system within the tractor, caused the fire.
i) Defendant also argued that even if the electrical system did cause the fire it may not have been because of a defect attributable to defendant.
b) Plaintiff maintains their case for liability was sufficient under the “Malfunction Theory”, allowing the inference of a product defect through circumstantial evidence when direct evidence is unavailable.
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Also Known As
Indeterminate Defect Theory
General Defect Theory
A Principle of Circumstantial Evidence
Strict Liability on Steroids
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May Allow Inference of Defect without Defect
May Allow Inference of Causation
Or Both (Defect + Causation)
Metropolitan Case CT Supreme Court 2011 Decision Cited by Many Courts, Treatises and Commentators
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i) Direct evidence of a defect is usually the basis of most products liability cases, but after a crash or explosion sometimes direct evidence is unavailable.
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i) Direct evidence of a defect is usually the basis of most products liability cases, but after a crash or explosion sometimes direct evidence is unavailable. ii) A plaintiff only has to present evidence of an unspecified “dangerous condition” and not evidence of a specific defect.
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i) Direct evidence of a defect is usually the basis of most products liability cases, but after a crash or explosion sometimes direct evidence is unavailable. ii) A plaintiff only has to present evidence of an unspecified “dangerous condition” and not evidence of a specific defect. iii) The plaintiff still must prove all the elements of a product liability claim, but permits a jury to infer the existence of a defect and causation.
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(1) the history and use of the particular product,
(2) the manner in which the product malfunctioned,
(3) similar malfunctions in similar products that may negate the possibility of other causes,
(4) the age of the product in relation to its life expectancy, and
(5) the most likely causes of the malfunction.
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The theory has similar principles to res ipsa loquitur, which allows inference of negligence from circumstances of an accident without direct evidence. (1) Proof of an accident alone does not establish manufacturer liability. (2) Unlike res ipsa loquitur, product liability case defendants rarely have control of whatever causes plaintiff ’s injury when it happens and product accidents occur for many reasons outside of defects.
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Application of the theory raises questions of fairness to product manufacturers because of the speculative evidence involved. (1) While losing a piece of key evidence due to a fire or explosion damages plaintiff ’s argument, the lack of direct evidence also prevents the defendant from being able to argue that a defect did not exist. (2) The missing evidence lightens the plaintiff ’s burden, when in reality the missing evidence could have been decisive for either party.
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Court’s conclusion on the Malfunction Theory i) A plaintiff can rely on circumstantial evidence to infer a product defect by establishing that the incident does not normally occur without a product defect and any defect existed when the product left the defendant’s control, and not the result of other causes. ii) Circumstantial evidence allowed to establish these factors includes history and use of the product, the manner in which it malfunctioned, the age of the product in relation to its life expectancy, and the most likely causes of the malfunction.
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Court’s analysis of Malfunction Theory to the present case i) Plaintiff presented insufficient evidence to eliminate other reasonable and possible causes of the defect and failed to establish that a defect in the tractor was attributable to the defendant. (1) Plaintiff ’s own expert testified that electrical failure could have occurred due to improper maintenance and use.
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a) Plaintiff presented insufficient evidence to satisfy malfunction theory requirements. The trial court should not have allowed the jury to infer the defect attributable to the defendant. b) With no other evidence, plaintiff had no other theory to maintain a product liability claim. c) Judgment reversed, case remanded with direction to grant defendant’s motion for a directed verdict for the defendant.
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Peanut butter jar
Television
Electric blanket
Clothes dryer
Aircraft
Lawn tractor
Coffee carafe
Automobile
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The malfunction theory stinks to high heaven Go for Daubert or Frye challenge
Fight applicability of Malfunction Doctrine before trial
Look for spoliation angles
Stay tuned as law is developing
Do your part if you can
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Brian Bornstein AIG
Philadelphia, Pennsylvania
Brian Bornstein is Claims Regional Vice President for AIG Mid-‐Atlan:c Region and is based in Philadelphia. In this posi:on Brian acts as the senior claims execu:ve in the region and makes sure that claims handled in the mid-‐atlan:c region are serviced appropriately. Prior to joining AIG in 1995, Brian worked as in house counsel with Long Island Ligh:ng Company and prac:ced law with Lowenstein Sandler and Bingham Englar. He holds a B.A. degree from Cornell University and Law (JD) and MBA degrees from the University of Buffalo.
Doherty & Progar was founded to provide personalized, superior legal representation in the Midwest. We are an AV-rated law firm and concentrate our practice solely on litigation. Each of our partners has more than twenty-five years of experience in all phases of litigation, from resolution prior to suit through jury trials involving tens of millions of dollars. While the specific types of lawsuits we have handled have varied over the years, there is a core trait evident in our collective experience: our commitment to providing our clients with superior legal representation coupled with unsurpassed efforts as their advocates. Our firm concentrates on advising and representing insurance carriers, their insureds, and businesses in all types of matters. We represent our clients in suits pending in state and federal courts, in claims filed with state and federal administrative agencies, and in negotiations, mediation, arbitration, and other alternative dispute resolution formats. We take pride in our services, which include advice and counsel on all matters within our areas of expertise. We consider such efforts to be central to the establishment of a partnering relationship with our clients.
Practice Areas:
Common Carrier and Innkeeper Liability; Construction Liability; Directors and Officers Liability; Dram Shop Liability; Personal and Commercial Liability; Product Liability; Professional Liability; Transportation Liability; Workers’ Compensation; Insurance Coverage; Employment Practices and Discrimination; Medical Negligence; Nursing Home Litigation; Municipal Law; Toxic Torts; Errors and Omissions; Appeals; Child Care Litigation; Class Actions.
Kevin W. Doherty Doherty & Progar, LLC
Chicago, Illinois Mr. Doherty has acquired extensive experience in jury trial work and administrative claims in numerous forums throughout the Midwest. His practice encompasses a broad range of civil litigation and involves the handling of complex matters in both state and federal courts, as well as various administrative agencies. He represents a number of product manufacturers in product liability cases. Mr. Doherty has been published in the field of Illinois Civil Procedure, has lectured on complex litigation and trial practice and has attained a Martindale Hubbell® AV rating from his peers for each of the past 20 years. Mr. Doherty was recently accorded the honor of being named an Illinois Super Lawyer, a designation afforded to less than 5% of practicing lawyers in the State of Illinois. He has been selected to be a Fellow of the trial lawyer's honor society, Litigation Counsel of America.
Bennett, Bricklin & Saltzburg, LLC is committed to providing our clients high quality yet cost effective civil litigation services. From the inception of the firm in 1946, our highest priority has been service to our clients and we believe this is reflected by many companies having been clients of the firm for 20, 30, and 40 or more years. The firm offers litigators experienced in the areas of insurance coverage and bad faith, special investigations and fraud, premises liability and construction litigation, products liability, automobile insurance and liability, employment law, aviation law, subrogation and medical malpractice. The firm represents a variety of insurance carriers and insured and self-insured clients from our main office in Philadelphia as well as offices located in Blue Bell, Montgomery County, Pennsylvania and Lancaster, Lancaster County, Pennsylvania, and Cherry Hill, New Jersey. From these locations, the firm routinely handles matters in eastern and central Pennsylvania and throughout New Jersey and New York although at the request of our clients, we frequently handle cases outside of those geographical areas.
Practice Areas:
Insurance Coverage and Bad Faith; Special Investigations and Fraud; Subrogation and Property Insurance; Products Liability; Premises Liability and Construction Litigation; Automobile; Medical Malpractice and Health Care; Commercial Motor Vehicle Defense; Food and Restaurant Defense; Aviation Litigation; Employment Law; Mass Tort and Environmental.
Charity C. Hyde Bennett Bricklin & Saltzburg LLC
Philadelphia, Pennsylvania
Charity C. Hyde is a Member of Bennett, Bricklin & Saltzburg LLC and is admitted to practice in both the state and federal courts of Pennsylvania and New Jersey, and is also licensed to practice in the District of Columbia. Charity focuses her practice on products liability, toxic torts, premises liability, motor vehicle liability, and insurance fraud investigation. She has experience leading multi-attorney teams and representing large manufacturing clients, retailers and their insurers in several states. She is National Coordinating Counsel for a large, international manufacturing company. Charity has also represented many food manufacturers, as well as many retail stores and restaurant chains in potentially high exposure matters. Charity has extensive insurance defense experience and has arbitrated hundreds of cases involving products liability, premises liability and motor vehicle liability claims, as well as tried many cases to verdict with favorable results. She has also participated in the investigation and civil prosecution of individuals who submit fraudulent insurance claims including several medical providers.
The law firm of Raymond Law Group in Glastonbury, Connecticut, provides aggressive and professional representation in cases involving business, technology, personal injury and employment. Bruce Raymond founded the firm in 2007 after a successful career at one of the region’s largest litigation and trial firms. Raymond Law Group was founded on the core principles of excellent client service, lean business practices, value billing, and effective use of technology in firm management and litigation. Bruce started the firm because he believed the traditional law firm model was failing to deliver value to clients in a rapidly changing business environment. Clients ranging from individuals, corporations and insurance companies were looking for an alternative to the traditional law firm model. Raymond Law Group is the alternative.
Practice Areas:
Business Litigation; Insurance Litigation; Products Liability and Toxic Tort; Employment; Professional Negligence; Fire Litigation; Technology Law.
Bruce H. Raymond Raymond Law Group
Glastonbury, Connecticut Mr. Raymond’s experience includes cyber liability, data breach, privacy law, professional liability, business litigation, products liability, toxic torts including asbestos, and intellectual property matters. He has litigated personal injury insurance defense cases including trucking, motor vehicle accidents, premises liability, liquor liability E&O, and D&O matters. Attorney Raymond represented Deere & Company in its successful appeal addressing the malfunction theory in products liability cases. Bruce is a Connecticut attorney and has served as Regional Representative on the Board of Directors of DRI and Chairman of DRI's ACMIE (Specialized Litigation Group for Agricultural, Construction, Mining and Industrial Equipment). He is Co-Chair of the Your House Counsel® Recreation and Amusement Liability Practice Group.
Bacon, Thornton & Palmer L.L.P. provides experienced civil representation throughout the Baltimore-Washington corridor. The firm is AV rated by Martindale-Hubbell and included in the Martindale-Hubbell Bar Register of Preeminent Lawyers. With decades of experience, and hundreds of jury verdicts exclusively in the area of civil litigation in the Federal and State courts of Maryland and the District of Columbia, the firm provides aggressive representation with efficient, personal case handling. Our clients include many Insurance and Fortune 500 companies, for which the firm provides representation in a wide array of practice areas. Our founding partners have worked together for over 20 years, with numerous significant decisions reported in the Maryland Appellate Courts, District of Columbia Court of Appeals, and the United States Courts of Appeals for the Fourth Circuit and the District of Columbia Circuit. We appreciate having numerous clients of equal long-standing, a fact we attribute to our dedication in providing personal high quality legal representation at efficient costs.
Practice Areas:
Product Liability; Retailer/Employer Liability; Insurance Coverage; Construction Defects and Accidents; Environmental Exposure; Creditor Rights and Liabilities; Employment Law and ERISA Claims; Motor Vehicle Accidents; Intentional Torts; Trademark; Copyright; Commercial Leasing; Corporate Structuring.
Patricia M. Thornton Bacon Thornton & Palmer, LLP
Greenbelt, Maryland Patricia M. Thornton has 29-years of experience devoted exclusively to civil litigation in the Federal and State courts of Maryland and the District of Columbia. She focuses her practice in the areas of serious personal injury including wrongful death, brain injury and paralysis; motor vehicle accidents, premises liability, products liability, retailer liability, and intentional torts. Ms. Thornton is a member of the Maryland State Bar Association (Litigation Section; Negligence, Insurance and Workers' Compensation Section), the District of Columbia Bar Association, the District of Columbia Defense Lawyers Association and the Prince George's County Bar Association. She is Co-Chair of the Your House Counsel® Catastrophic Liability Practice Group.
ALABAMABirmingham
Miller, Christie & Kinney, P.C.Paul A. Miller,
Kyle L. Kinney,
Vestavia Centre
2090 Columbiana Rd., Suite 3400
Vestavia Hills, AL 35216
Phone: (205) 326-0000
www.mnc-law.com
CALIFORNIA
Clapp Moroney / Bellagamba
Vucinich / Beeman Scheley
Jeffrey M. Vucinich jvucinich@clappmoro,ney.com
Christopher J. Beeman, [email protected]
505 Montgomery Street, 11th FloorSan Francisco, CA 94111Phone: (415) 874-3562
www.clappmoroney.com
ALABAMAMobile
Vickers, Riis, Murray and Curran, L.L.C.E. L. McCafferty, III,
[email protected]. Marshall Gardner,
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107 St. Francis Street, 21st FloorMobile, AL 36602
Phone: (251) 432-9772www.vickersriis.com
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Elardo, Bragg, Appel & Rossi
John A. Elardo,[email protected]
Venessa J. Bragg,[email protected]
3001 East Camelback Road, Suite 130Phoenix, AZ 85016
Phone: (602) 889-0272www.ebarlaw.com
COLORADO
Grund, Dagner, & Jung, P.C.
Deana R. Dagner, Partner,
Douglas A. Stevens, Partner,
1660 Lincoln Street, Suite 2800
Denver, CO 80264
Phone: (303) 830-7770
www.gdjlegal.com
CONNECTICUT
Raymond Law Group
Bruce H. Raymond,
90 National Drive
Glastonbury, CT 06033
Phone: (860) 633-0580
www.raymondlawgroup.com
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Powers / McNalis / Torres /
Teebagy / Luongo
Anna D. Torres,
Stephanie H. Luongo,
1601 Belvedere Road Suite 500S
West Palm Beach, FL 33416
Phone: (561) 588-3000
www.powersmcnalis.com
ILLINOIS
Doherty & Progar LLC
Kevin W. Doherty, [email protected]
Mary Jo Greene, [email protected]
200 West Adams Street, Suite 2220Chicago, IL 60606-5231Phone: (312) 630-9630
www.doherty-progar.com
INDIANA
Indianapolis
House Reynolds & Faust, LLP
Briane M. House,
Thomas Todd Reynolds,
11711 North Pennsylvania Street, Suite 190
Carmel, Indiana, 46032
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www.housereynoldsfaust.com
INDIANANorthern
Doherty & Progar LLCKevin W. Doherty,
[email protected] Jo Greene,
[email protected] Georgia Street
Merrillville, Indiana 46410-6224Phone: (219) 513-9000
www.doherty-progar.com
LOUISIANA
Johnson, Johnson, Barrios &
Yacoubian PLC
Alan J. Yacoubian,
René S. Paysse, Jr.,
701 Poydras Street, Suite 4700
New Orleans, LA 70139-7701
Phone: (504) 528-3001
www.jjbylaw.com
MAINE
Petruccelli, Martin & Haddow, LLP
Gerald F. Petruccelli, [email protected]
James B. Haddow, [email protected]
2 Monument Square P.O. Box 17555
Portland, ME 04112 Phone: (207) 775-0200
www.pmhlegal.com
MARYLAND
Bacon, Thornton & Palmer, L.L.P.Edward C. Bacon,
[email protected] M. Thornton,
[email protected] 6411 Ivy Lane Suite 500Greenbelt, MD 20770
Phone: Phone: (301) 345-7001www.lawbtp.com
MASSACHUSETTS
Coughlin Betke LLP
Christopher G. Betke, [email protected]
Andrew R. Ferguson, [email protected]
175 Federal StreetBoston, MA 02110
Phone: (617) 988-8050www.coughlinbetke.com
MICHIGAN
Collins Einhorn Farrell PC
David C. Anderson, [email protected]
Michael J. Sullivan, [email protected]
4000 Town Center, Suite 909
MINNESOTA
Johnson & Lindberg, P.A
Michael C. Lindberg, [email protected]
Mark J. Peschel, [email protected]
780 Northland Plaza3800 American Boulevard West
Minneapolis, MN 55431Phone: (952) 851-0700
www.johnsonlindberg.com
MISSISSIPPI
Anderson Crawley & Burke, pllcJames M. Anderson,
[email protected] D. Crawley,
[email protected] 216 Draperton Court
Ridgeland, MS 39157-3905Phone: (601) 707-8800
www.acblaw.com
MISSOURI
Rynearson, Suess, Schnurbusch
& Champion L.L.C.
Debbie S. Champion,
John Kemppainen,
500 N. Broadway, Suite 1550
St. Louis, MO 63102
Phone: (314) 421-4430
www.rssclaw.com
NEW JERSEY
Shafer Glazer, LLPHoward S. Shafer,
David A. Glazer,
90 John Street, Suite 701
New York, NY 10038
Phone: (212) 267-0011
www.ShaferGlazer.com
NEW YORK
AlbanyFlink Smith LLC
Edward Flink,
449 New Karner RdAlbany, NY 12205
NEW YORK
Downstate
Shafer Glazer, LLP
Howard S. Shafer,
David A. Glazer,
90 John Street, Suite 701
New York, NY 10038
Phone: (212) 267-0011
www.ShaferGlazer.com
NEW YORK
RochesterConnors & Corcoran, PLLC
Eileen E. Buholtz, [email protected]
45 Exchange Blvd.Times Square Building, Suite 250
Rochester, NY 14614Phone: (585) 232-5885
www.connorscorcoran.com
NORTH CAROLINA
Bailey & Dixon, LLPDavid S. Coats,
[email protected] S. Wisz,
[email protected] Fayetteville Street, Suite 2500
Raleigh, NC 27601Phone: (919) 828-0731
www.bdixon.com
OHIO
Mazanec, Raskin & Ryder Co., L.P.A.John T. McLandrich,
[email protected] F. Nicholas Jr.,
[email protected] Franklin’s Row34305 Solon Road
Cleveland, OH 44139Phone: (440) 248-7906
www.mrrlaw.com
OKLAHOMA
Hiltgen & Brewer, P.C.Michael W. Brewer,
[email protected] Cary E. Hiltgen,
[email protected] 9505 North Kelley AvenueOklahoma City, OK 73131
Phone: (405) 605-9000www.hiltgenbrewer.com
OREGON
Smith Freed & Eberhard P.C.
Jeffrey D. Eberhard,
Justin R. Wickizer,
111 S.W. Fifth Avenue, Suite 4300
Portland, OR 97204-3699
Phone: (503) 227-2424
www.SmithFreed.com
PENNSYLVANIA
Bennett, Bricklin & Saltzburg LLC.Kevin Blake,
Charity Hyde,
1601 Market Street, 16th Floor,
Philadelphia, PA 19103
Phone: (215) 561-4300
www.bbs-law.com
RHODE ISLAND
Hanson Curran LLPMegan J. Goguen,
James T. Murphy,
1 Turks Head Place #550
Providence, RI 02903
Phone: (401) 421-2154
www.hansoncurran.com
TEXASDallas
Carnahan Thomas, LLPMichael S. Carnahan,
[email protected] N. Thomas,
[email protected] N. Carroll Avenue
Southlake, TX 76092Phone: (817) 424-1001
www.CarnahanThomas.com
TEXASHouston
Doyen SebestaScot G. Doyen,
Randall J. Poelma, Jr.,
450 Gears Road, Suite 350
Houston, TX 77067
Phone: (713) 580-8900
www.ds-lawyers.com
WASHINGTON
Smith Freed & Eberhard P.C.Jeffrey D. Eberhard,
[email protected] R. Wickizer,
[email protected] 2nd Ave, 17th Floor
Seattle, Washington 98104Phone: (206) 576-7575 www.SmithFreed.com
WISCONSIN
MilwaukeeDoherty & Progar LLC
Kevin W. Doherty, [email protected]
Mary Jo Greene, [email protected] East Wisconsin Avenue
Suite 1800Milwaukee, Wisconsin 53202-4232
Phone: (414) 347-9600www.doherty-progar.com
YourHouseCounsel.com
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