Lack of Admissible Expert Evidence Combusts PAM Can Claims in EDNY
In a decision reinforcing the importance of expert testimony in design defect and failure to warn cases, the Eastern District of New York recently dismissed claims against the makers of PAM cooking spray.
In Urena v. ConAgra Goods, Inc., et al., civil action no. 16-cv-5556, husband and wife plaintiffs sued ConAgra Goods, Inc. and DS Containers, Inc. alleging design defect, failure to warn and loss of consortium claims under New York law after a can of PAM cooking spray exploded in the plaintiff’s hand as she was preparing dinner. Discovery revealed that the plaintiffs were not certain whether the plaintiff’s burns were caused by the canister, its contents, the fire that erupted on the stovetop or hot oil that was cooking on the stove.
The PAM canister featured four U-shaped score lines, designed to open when pressure inside the can rose to a particular level by causing the bottom end of the canister to evert, or buckle outwards. The can featured several warnings, including: “USE ONLY AS DIRECTED. FLAMMABLE. DO NOT SPRAY ON HEATED SURFACES OR NEAR OPEN FLAME … CAN MAY BURST IF LEFT ON STOVE OR NEAR HEAT SOURCE.” The specific canister at issue in this case was discarded by plaintiffs’ counsel’s custodial staff after it was left in a conference room, before experts had the opportunity to analyze it.
Plaintiffs’ Design Expert
Plaintiffs retained a design expert, among others. This design expert opined that ascertaining the temperature of the canister’s contents was paramount to understanding the cause of the explosion. If the can “burst” at a temperature that caused an internal pressure of 180 psig (measured with respect to the atmospheric pressure), rather than the minimum pressure of 270 psig as required by 49 C.F.R. 173.306, then the canister did not meet the design specifications required by the relevant regulations. According to plaintiffs’ expert, the PAM canister’s U-shaped “vented” design suffered precisely this shortcoming. He also opined that the defendants should have used an alternative “DOT 2Q” canister design without vents, and should have developed an alternative propellant other than the one used, although he did not proffer a specific alternative propellant.
Defendants moved to exclude plaintiffs’ design expert and for summary judgment. The Hon. Pamela K. Chen granted both motions.
Defendants’ Motion to Exclude Plaintiffs’ Design Expert
At the Daubert hearing, the court questioned plaintiffs’ design expert regarding his theory of causation – namely, that “absent the vents in this can, the circumstances under which” plaintiff “was burned would not have occurred.” From his explanation, the court questioned whether the expert was “mixing” a “manufacturing issue or some other cause with the design.” The court also underscored that from the plaintiff’s testimony, “[t]here [wa]s no way … that that can got up to 130 degrees or 180 [psig]. And that’s what the can was designed to withstand before it vented.”
Ultimately, the court held that the expert’s design defect testimony failed to satisfy the Daubert standard for two reasons.
First, the design expert’s testimony failed to satisfy Daubert because he failed to explain how his proposed alternative design would be safer. The court found the DOT 2Q can without U-shaped vents would have made “no actual difference with respect to the accident at issue here,” and therefore could not be found to be a safer alternative.
Second, the expert’s opinion did not satisfy the Daubert criteria for reliability. The design expert criticized the PAM canister’s propellant, but did not propose a safer propellant, nor had he tested any. His proposal had never been subjected to peer review or publication, and the court held he “fail[ed] to show general acceptance of either his design or of his methodology.” Overall, the expert’s suggestions regarding the canister’s propellant were “purely speculative.” Accordingly, the court excluded plaintiffs’ design expert.
Defendants’ Summary Judgment Motion
The court’s exclusion of plaintiffs’ design expert was determinative in its summary judgment analysis.
The court held plaintiffs’ design defect claim failed because they did not offer admissible evidence on two key fronts: (1) showing that the design of the PAM canister, and not a purported manufacturing defect, caused plaintiff’s injuries, and (2) from an expert as to defect or feasible alternative design. “Without such expert testimony, ‘Plaintiffs [were] unable to sustain their burden of proving that the [PAM product] was, in fact, defective.’”
The court then held that plaintiffs’ failure to warn claim raised no triable questions of fact because they could not show the alleged inadequacy of the warnings were the proximate cause of plaintiff’s harm. To begin, plaintiff read the warnings and used the product as directed. According to the court, plaintiffs could not show “that any alleged inadequacy of the warning label — e.g., not advising the consumer of the precise distance at which to keep the can from the stove or heat source or the precise conditions under which a can might heat up to 120 degrees — caused the explosion” or plaintiff’s injuries. Most damning, plaintiffs’ own expert agreed the existing label was adequate to warn a consumer not to do so.
Similarly, plaintiffs’ theory that the warnings were inadequate for failure to warn about the canister’s “vent” design failed because they could not show that the absence of this warning was the cause of plaintiff’s injuries. The court held that no reasonable jury could find that such a warning would have made it more likely that a consumer, like plaintiff, would not buy PAM.
The court granted summary judgment in favor of defendants on both counts. Although the defendants did not expressly move for summary judgment as to plaintiff’s loss of consortium claim, because “they purported to file a ‘dispositive motion,’” the court construed the motion as to all causes of action, and dismissed this derivate claim, too.
This decision underscores the need to make sure that expert testimony is consistent with the core underlying claims, and demonstrates the consequences for failure to do so. This decision also highlights the critical importance of preserving the product at issue. Here, the dismissal of plaintiffs’ manufacturing defect claim, necessitated by the negligent loss of the at-issue canister, was likely a substantial factor in the ultimate failure of their suit.