A New York Federal Court granted Defendants’ Daubert motion to exclude design defect expert testimony on a design defect claim for PAM Cooking Spray and dismissed all product liability claims on summary judgment, including failure to warn and design defect. Urena v. Conagra Foods Inc., 16-CV-5556 (PKC) (LB) (E.D.N.Y. June 1, 2020).
Plaintiff sued in product liability asserting design defect and failure to warn claims against the seller and manufacturer of PAM Cooking Spray for personal injuries sustained when a can burst while she was cooking. Plaintiff’s spouse sued for loss of consortium.
The Daubert/Zaremba Framework for Design Defect
The Eastern District noted that “[i]n a products liability case, the ‘touchstone’ of an expert’s report should be a comparison of the utility and cost of the product’s design and alternative design, which “should usually be supported by testing of the alternative design.” (citing Hilaire v. DeWalt Indust. Tool Co., 54 F. Supp. 3d 223, 244 (E.D.N.Y. 2014)). Though not required, testing the alternative design is “critical” in design defect cases. Pierre v. Hilton Rose Hall Resort Spa, NO 14-cv-3790 (VMS), 2016 WL 1228604, at *3 (E.D.N.Y Mar. 28, 2016).
The Second Circuit has articulated the framework for applying the Daubert factors to expert testimony regarding a safer alternative design. Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358-59 (2d Cir. 2004). For expert testimony on a design defect to be relevant, the expert must (1) propose an alternative design that is a safer alternative, and (2) the proposed alternative design must meet the Daubert standards for reliability. Id. This two-pronged approach includes positing an alternative design that has been tested, subject to peer review or is otherwise generally accepted.
In this case, Plaintiffs’ expert alleged that the venting system of the can was defectively designed and suggested that Defendants manufacture a can without vents. The Court held that Plaintiffs’ expert failed the first Zaremba prong by not explaining how the proposed alternative was a safer alternative. Significantly, the expert admitted that Plaintiff’ injuries were not even caused by a design defect, but rather a manufacturing defect. Therefore, the Court held that the proposed alternative design cannot be deemed a safer alternative since the expert’s proposed design would not have made a difference in the subject accident. Moreover, the Court held that Plaintiffs’ expert failed the second Zaremba prong by not providing any evidence that the proposed alternative design met the Daubert standards for reliability.
Plaintiff’s expert also opined that the can was defectively designed because it used a flammable propellant. The Court held that Plaintiffs’ expert failed the first Zaremba prong by not even proposing a safer propellant. Moreover, Plaintiffs’ expert failed the second Zaremba prong by not providing any evidence that the proposed alternative design met the Daubert standards for reliability. First, the expert did not test a non-flammable propellant nor conduct a comparison of the utility and cost of the product’s design and proposed alternative design. Hence, the expert’s recommendations were purely speculative. Second, the expert’s proposed design was not subjected to peer review or publication. Third, since the proposed design had not been tested, its error rate is unknown. Finally, the expert failed to show that the proposed design was generally accepted by the relevant scientific community. Therefore, the Court granted Defendants’ Daubert motion, finding that the expert’s proffered design-defect testimony failed to meet the Daubert test of relevancy and reliability regarding a safer alternative design, as articulated in Zaremba.
The Eastern District noted that under New York law, to establish a products liability claim for design defect, Plaintiff must establish “(1) the product as designed posed a substantial likelihood of harm; and (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing Plaintiff’s injury.” (citing Oden v. Boston Sci. Corp., 330 F. Supp. 3d 877, 888 (E.D.N.Y. 2018)).
In this case, the Court held that Plaintiffs failed to offer admissible evidence that Plaintiff’s injuries were caused by a design defect as opposed to a manufacturing defect (as determined in the Daubert motion). Moreover, considering the circumstances under which Plaintiff testified to using the product, the “design of the can should not and would not have resulted in the venting of the can.” Second, Plaintiffs failed to propose a feasible alternative design. Specifically, Plaintiffs did not present “any relevant testimony or analysis as to the risks and benefits of using the alternative can [without the vents] or explain[ ] whether the alternative design would have enabled [Plaintiff] to avoid injury.” Moreover, Plaintiffs’ failed to identify an alternative replacement to the flammable propellant. A proposed alternative design is insufficient when it suggests that a crucial element of a product be changed without proposing a clear alternative. See Greenberg v. Larox, Inc., 673 F. App’x 66, 70 (2d Cir. 2016). As such, Plaintiff failed to meet their burden of proving that the can of PAM was defectively designed. Therefore, the Court granted summary judgment to Defendants on Plaintiffs’ design defect claims.
Failure to Warn
The Court noted that under New York law, to establish a products liability claim for failure to warn, Plaintiff must establish “(1) that a manufacturer has a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was the proximate cause of harm.” Quintana v. B. Braun Med. Inc., No. 17-CV-6614 (ALC), 2018 WL 3559091, at *5 (S.D.N.Y. July 14, 2018).
In this case, the Court held that Plaintiff failed to establish that PAM’s warning label was inadequate, for example by not warning of the precise distance at which to keep the can from the stove or heat source or specifically warning that the can might vent if overheated. First, Plaintiffs’ expert confirmed that Plaintiff “noticed, read, and understood the information that was provided in the warning”. Next, Plaintiff admitted to using the product consistent with the warning label. “No reasonable jury could find that [such a warning] would have been more likely to cause a consumer, like [Plaintiff], not to buy or use the PAM product than the label that was already on the can […].” In fact, “Plaintiff bought and used the product notwithstanding the existing label’s explicit warnings about the flammability of the can’s contents and the possibility that it could “burst” if overheated.” Id. Thus, Plaintiffs failed to establish that Defendants’ alleged failure to warn was the proximate cause of Plaintiff’s injuries. Therefore, the Court granted summary judgment to Defendants on Plaintiffs’ failure to warn claims. Since all of Plaintiff’s claims were dismissed, the Court dismissed the derivative claim for loss of consortium.
The Eastern District of New York’s decision in Urena underscores the importance of a plaintiff’s burden to posit an alternative feasible design that is backed by science – one that has been tested, subject to peer review or is otherwise generally accepted by the relevant scientific community.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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