Circumstantial Evidence of Product Defect in Strict Liability Cases
by Ronald L. Hack
Synopsis: While direct evidence of product defect is the preferred method of proof in a strict products liability case, Missouri courts have recognized that a product defect can be proven by circumstantial evidence and that no expert testimony is required to prove that a product contained a defect. The ways in which Missouri and other courts have addressed the use of circumstantial evidence at trial is examined in this article.
I. Introduction
In most product liability cases, plaintiff's submission of proof of the specific defect in a product and that the defect proximately caused a plaintiff's injuries is relatively simple. A plaintiff or other witness testifies about the plaintiff using or coming into contact with the product and further testifies how the plaintiff became injured. Then an expert testifies that the particular product involved in the case contained certain design and/or manufacturing defects or there was a failure to warn about certain characteristics of the product, and further testifies that the design or manufacturing defect, or the failure to warn about the dangerous propensities of the product, caused the plaintiff's injuries. However, in a minority of cases, no specific defect is identified. No more than circumstantial evidence of the defect is adduced. Instead, the plaintiff presents evidence that a product, such as a television set, was new or had no problems under normal usage prior to the incident, that a fire occurred with the heaviest burn pattern near where the TV set was located, that the fire so destroyed the set that it could not be examined for evidence of a defect in the set itself, that an examination occurred after the fire to see if there were possible causes for the fire other than the TV set, and at least one witness is able to exclude these other possible causes of the fire.1 While no specific defect in the set is identified, all the circumstances and evidence point to the conclusion that the television contained a defect. The jury, as it is entitled to do, considers this evidence and arrives at a verdict finding the manufacturer of the set liable for the plaintiff's damages.2 Thus, the plaintiff offers a well-connected train of circumstances that is as cogent and compelling as an array of direct evidence of the fact sought to be proved: the existence of a defect that caused the injury.3 Missouri law permits a plaintiff to recover damages in such cases based upon an acknowledgment that specific proof may be unavailable under certain circumstances. This recovery is based on a recognition, grounded in common experience, that accidents do not normally occur with a new or rarely used product unless a defect existed within the product itself. This article looks at the current state of Missouri law on the use of circumstantial evidence to prove product defect, and how the use of such evidence as proof has evolved over the years.
II. Adoption of Circumstantial Evidence Standard
Missouri courts recognized and adopted the doctrine of strict liability in tort as stated in the Restatement (Second) of Torts § 402A in 1969 in Keener v. Dayton Elec. Mfg. Co.4 "To make a submissible case, a plaintiff must show that (1) the defendant sold the product [at issue] in the course of its business, (2) the product [at the time of sale] was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, (3) the product was used in a manner reasonably anticipated," and (4) the plaintiff suffered damages as a direct result of the alleged defective condition in the product.5 Under this doctrine a manufacturer or seller of a product is subject to liability if a "product [is] in a defective condition reasonably dangerous to the user or consumer" when it left the hands of the particular seller sought to be held liable.6 However, the burden of proof that the product was in a defective condition when it left the hands of the seller is on the plaintiff. The plaintiff must prove the existence of any alleged defects and also prove that the product was "expected to and [did] reach the user of consumer without substantial change in the [same] condition [as it did when] it was sold."7This is the traditional test for a manufacturing defect case, as opposed to a strict liability case in which a failure to warn is the claimed defect.8 Under Missouri law, proof of causation is a required element of the plaintiff's product liability case, whether it is based on a strict liability or a negligence theory.9 In other words, there must be proof that the accident was caused by and as a direct result of a defective condition in the product.10
Almost simultaneously with the recognition of a cause of action based on the doctrine of strict liability in tort, Missouri courts recognized that the existence of a product's defect may be inferred solely from circumstantial evidence.11 In doing so, the Missouri courts joined courts in other states in adopting this principle.12 Since then, various courts in other states have similarly held that it is not necessary to identify a specific defect, and that a defect may be proven by circumstantial evidence.13 Missouri courts have consistently recognized in a variety of cases that facts necessary to a recovery in a civil case may be proven by circumstantial evidence as well as by direct evidence.14 The jury is not only allowed to use its deductive reasoning to arrive at a verdict,15 but is specifically instructed that it may consider "the reasonable inferences derived from the evidence."16 In a strict product liability case, as in any civil case where circumstantial evidence is used in proof of a specific fact, the inferences sought to be drawn must be shown to be reasonably probable, without having to resort to either guesswork or speculation.17 The plaintiff bears the burden of showing that "the circumstances proven must point reasonably [only] to the desired conclusion and [that the circumstances] tend to exclude any other reasonable conclusion."18 However, where there are two equally plausible explanations for an event, one of which points to defective product and one which does not, the courts have held there was a failure of proof that the product had a defect.19
It is generally recognized by courts that "the mere fact of an accident, standing alone, does not generally make out a case that a product [is] defective."20 To overcome the presumption that an accident was not caused by any person's or entity's fault, courts have adopted the observation offered by Professor Prosser that "some accidents do not ordinarily occur in the absence of a defect and in those situations the inference that a product is defective is permissible."21 The critical question then becomes whether there is sufficient circumstantial evidence from which a jury could infer the existence of a defect to the exclusion of other possible causes for the incident. Thus, while a precise defect does not have to be shown, there still must be proof that the product as a whole was in a defective condition when sold by the defendant and then used by the plaintiff.22
The courts adjust the burden of proof when recovery is sought under a product liability theory. A plaintiff need only present such proof that is available given the specific factual circumstances of the case. Courts recognize that, through no fault of the plaintiff, traditional methods of proof may be unavailable. As noted by one appellate court: "The doctrine of strict liability does not require impossible standards of proof. The proof 'must be realistically tailored to the circumstances which caused the form of action to be created.'" 23 In other words, there is no requirement under Missouri law that a defect is proven solely by direct evidence of the defect. Each case's proof will be individually judged based upon the available facts.24 "[P]roof of essential facts may be accomplished by circumstantial evidence so long as the desired inference is established 'with such certainty as to cause it to be the more probable of the conclusions to be drawn.'"25 The facts that are sought to be proven must be so interconnected and related to each other that the conclusion of a defect can be reasonably drawn by the fact finder. The facts must also tend to exclude any other conclusion that is just as likely to be drawn from the facts.26
Circumstantial proof of product defect in strict liability causes of action is related theoretically to the use of the doctrine of res ipsa loquitor in a case brought under a pure negligence theory. Under res ipsa loquitor, three elements must be proven:
(a) the occurrence resulting in injury was such as does not ordinarily happen if those I in charge use due care;
(b) the instrumentalities involved were under the management and control of the defendant;
(c) and the defendant possesses superior knowledge or means of information as to
the cause of the occurrence. 27
What distinguishes the res ipsa case from the use of circumstantial evidence in a strict liability case is that for res ipsa to be applied, the instrumentality must be under the physical control of the defendant at the time of the injury, whereas no such requirement exists in the strict liability case.28 However, where both theories are tried in a case, failure to prove a defect through circumstantial evidence likewise will probably mean that the trier of fact will not find liability under a res ipsa theory.29 Because the elements of a negligence cause of action are different from that of a strict liability cause of action, many plaintiffs' attorneys choose to submit under a strict liability rather than a negligence theory because of a perceived greater chance of success under a strict liability theory.
III. "New" v. "Used" Products
Originally, the inference of a defect was limited to those situations in which damage occurred from products that were new and had not been used over a long period of time. Williams v. Ford Motor Co.,30 the seminal Missouri case addressing circumstantial evidence of a defect, concerned a brand-new car. Four days after purchasing a new Thunderbird convertible, the plaintiff drove the car into a tree because of an allegedly defective power steering system. The plaintiff called an expert to testify on her behalf, who offered four possible causes for the steering wheel's failure to respond as expected. However, because he had not inspected the actual power steering mechanism in the car, the expert could not identify the precise reason for the failure of the power steering mechanism. The appellate court noted:
In the usual operation of a new automobile, properly manufactured, it turns in the direction it is steered. The corollary is that if a new automobile is properly operated but does not turn in the direction it is steered, then the automobile is not properly manufactured. 31
Thus, the doctrine appeared to be implicitly limited to new or almost new products.32
Subsequently, courts gradually relaxed the time element. For example, a plaintiff injured by a baby bottle that exploded after 11 months of being washed, sterilized, and exposed to the cold of refrigeration, could recover under the circumstantial evidence theory.
The bottle did not break nor crack. It exploded with great force. It is reasonable to conclude that had the bottle been physically damaged prior to plaintiff's purchase, the results of that damage would either have been immediately apparent, as with a crack, or would have shown up shortly after purchase through leakage or breakage. That neither occurred and that the accident involved an explosion of an empty bottle at room temperature after eleven months of careful use creates a reasonable inference that the defect was in the physical composition of the bottle rather than originating from an outside source. 33
As noted by one court in addressing this issue:
Defendant would distinguish the present case from those cited by plaintiff, which have allowed recovery without proof of a specific defect, on the grounds that those cases involved products that were new and had not been used over a prolonged period. (citations omitted). The doctrine of strict liability does not require that the product be "new" at the time of the occurrence. The criteria is that it be in substantially the same condition as when it was delivered to the purchaser. 34
Gradually, the age of the product was seen increasingly as not the critical factor, but only as one factor to be considered. Defects have been inferred in products more than two years of age that have been used on a regular basis.35 What is critical to many courts is that "common experience" holds that some accidents, such as a fire coming from a television set or a handle coming off a grease gun, do not occur unless there is a defect in the product, regardless of the age or prior use of the product.36 If an incident occurs that is so out of the ordinary, or beyond the generally accepted experiences or functioning of a product, a defect in the product can be justifiably assumed. On the other hand, if it is known that a product will break down or act in a certain manner on a regular basis, or at least more than relatively infrequently, then no defect should be inferred.
Other courts have used the age of the product as a basis to conclude that causes other than product defect cannot be reasonably excluded and/or were just as probable. In a case involving a hydraulic jack attachment of indefinite age and prior use, the court held that various causes of product failure, other than product defect, were equally plausible.
There is no evidence that plaintiff was the only person to use the attachment. There is no evidence on how long before the accident plaintiff purchased the attachment from "Mac Tool," or even whether, when plaintiff bought it, it was new or used. From the worn and battered condition of the attachment it would be more reasonable to conclude that someone had used it many times, than to conclude that it was only used once before it broke. If, in addition to the evidence that the attachment broke when plaintiff was using it for the second time, there was evidence that the attachment was new when plaintiff purchased it and that plaintiff had been the only one who had used it prior to the accident, then the jury might be able to infer from this evidence that the jack attachment was defective when it left the hands of the defendant. However, in the absence of any such evidence, the existence of a defect caused by defendant cannot reasonably be found. This is not the type of accident which common experience tells us would normally not occur in the absence of a defect . . . . Here the attachment could have failed because of prior misuse, tampering or simply because of metal fatigue resulting from prolonged use. 37
Thus, the longer the period of time between the time it left the hands of the manufacturer/seller and the time of the incident, the likelier it is that other possible causes cannot be excluded.38 For example, one court noted that it was "common knowledge" that an automobile transmission could logically have been replaced due to wear in a 12-year-old car. This knowledge would preclude the use of the circumstantial evidence doctrine by itself to prove the existence of product defect.39
IV. Expert Testimony
Missouri courts have consistently recognized that to prove the existence of product defect by circumstantial evidence, expert opinion testimony is not required.40 For example, in Rauscher v. General Motors Corp.,41 the court noted that a jury possesses the ability to decide on its own, using circumstantial evidence, whether a defect exists in a product.
The jury has broad authority to determine whether a defective and unreasonably dangerous condition is present. (citation omitted). A jury could surely find that an automobile subject to unpredictable stalls and stops, which might occur in traffic, was in a defective condition, and that the condition was unreasonably dangerous. Expert testimony would not be needed; jurors themselves could appreciate the danger by reason of their own experience. 42
Courts in other states have looked at the problem differently. In an Alabama case,43 the court noted: "[W]hen product in question is of complex and technical nature such that lay juror could not, in absence of expert testimony, infer that defective condition of product caused product's failure and caused the resulting injury to plaintiff, expert testimony is necessary component of plaintiff's case." A tremendous amount of discretion may exist to determine in an individual case whether or not expert testimony will be required. It can be assumed that where the defect is of a highly technical or scientific nature, requiring a great deal of explanation, expert testimony will be required. The requirement of expert testimony will have to be decided on an individual case-by-case basis. 44
A review of the case law indicates a strong preference in favor of expert testimony in order for the plaintiff to meet his burden of proof. The expert need not have examined the particular product in question in order to render his opinions. The expert's primary value appears to be in identifying all probable causes of a product's failure and then either relating or not relating each of them to a defect in the product.45 For example, in Winters v. Sears, Roebuck and Co.,46 the plaintiffs' expert looked at possible causes of a fire, "eliminated" several causes not related to the product, and concluded, although he could not identify a "specific defect," that the fire that destroyed plaintiffs' residence originated in a television set sold by the defendant. Moreover, where the expert links all the possible causes to an overall product system, but cannot identify the specific part of the system that actually precipitated the injury, the plaintiff still has made a submissible case.47
It is possible for the defendant to introduce contrary expert evidence to rebut the plaintiff's expert testimony, and thereafter convince the court that a submissible case has not been made. In Church v. Martin-Baker Aircraft Co., Ltd.,48 a widow of a fighter pilot killed while attempting to eject from his jet filed a products liability action against the ejector seat manufacturer. The plaintiff theorized that the back of the decedent's head hit the seat's face curtain handle assembly unit, resulting in the decedent having a spinal cord contusion, becoming unconscious, and thereafter drowning in the ocean. The defendant countered with another explanation: that the decedent's neck was broken by external wind blast forces, unrelated to the seat, after the decedent ejected from the jet. The court succinctly summed up the plaintiff's burden:
If plaintiff is to prevail on the issue of causation, she must prove by a preponderance of the evidence that any of the claimed defects or the absence of a warning about such claimed defects was the proximate cause of Captain Church's death. Indeed, plaintiff must show that it is more probable than not that decedent died from an injury caused by a design defect of the ejection seat.49
Both sides then presented extensive factual and expert evidence. The court, in granting a judgment for the defendant, noted: "Plaintiff's evidence, albeit credible, simply failed to negate the defendant's theory for decedent's death, which was as probable (if not more probable) than an alleged defect in the ejection seat . . . . [P]laintiff's expert testimony was effectively rebutted by defendant's expert testimony, and the physical evidence relied upon was as supportive for defendant as it was for plaintiff."50 Because the court found the plaintiff's theory no more probable than the defense theory, the court entered judgment for the defendant on the claims of product defect under strict product liability and negligence.51 While some plaintiffs have been successful in submitting their case to the jury with only circumstantial non-expert evidence, others have run into internal logical inconsistencies in proving and submitting their cases without the aid of expert testimony.52
Expert testimony that a defect in the product, even if unspecified, was a probable cause of an incident may constitute substantial evidence such that a jury could find that the incident in question resulted from a defect in a product rather than from other causes.53 Expert testimony, if properly adduced, will allow a plaintiff to survive a motion for summary judgment or a motion for directed verdict, even if the case is built on circumstantial evidence rather than direct evidence. As noted previously, for a plaintiff to be successful, any expert conclusions to be drawn from the circumstances must be logically coherent and flow together to lead to a conclusion that is most probable under the facts of the specific case.54
V. Common Experience
The most open question under this standard is what constitutes "common experience" such that a court will infer or at least not rule out the possibility that a defect caused the product to fail and caused an injury. What is "common experience" to justify the inference that an accident must be the result of a product defect will necessarily vary as to different types or classes of products. The courts have held that consumer products, such as television sets or coffeemakers that burst into flames, are types of products in which accidents do not ordinarily occur in the absence of an internal defect in the product.55 Likewise, unexplained instances of bottles breaking 56 or fluorescent lights catching fire57 merit the use of proof by circumstantial evidence.
Plaintiffs have successfully met their burden of proof in a variety of cases involving automobiles and other motorized vehicles, including the seminal case where a car's steering system malfunctioned only four days after delivery of the car.58 Another frequently encountered problem requiring the use of circumstantial evidence is where an unexplained fire starts under a vehicle's hood with no specific defect identified.59 Likewise, where a tractor without explanation jumps out of gear from park60 or where a car has unpredictable stalls and stops, the plaintiffs used circumstantial evidence to prove that a defect existed in the product.61
On the other hand, where there are several possible causes of an accident and the plaintiff fails to eliminate or substantially discount them, or when ordinary experience indicates that an accident can occur without the fault of anyone, including product defect, then the courts hold that the plaintiff has failed to meet his burden of showing proximate cause by competent substantial evidence.62 Each case needs to be considered and evaluated on an individual basis. What is competent circumstantial evidence under one set of facts may be completely insufficient in another factual situation.63
VI. Practical Considerations
Trial attorneys should consider the use of product defect by circumstantial evidence as one of their trial weapons to be used when direct evidence cannot be obtained but proof of the defect must still be presented to the jury to withstand a motion for directed verdict. The lawyer must lay out all the circumstances of the incident in a logical fashion. This includes setting the scene of the incident in extremely descriptive terms, and then methodically, by witness testimony, eliminating all possible causes for the injuries and damages other than that the product contained a defect. This can be done by having the plaintiff or other witness state when the product was purchased, how the product acted upon use immediately after purchase or upon coming into the plaintiff's hands, and how the product was put to normal use and not exposed to abnormal conditions or uses prior to the incident that could conceivably have caused it to malfunction. Then testimony is offered to describe the malfunction. Finally, an expert or other witness can testify that causes for the product's failure were investigated, but each cause, other then a defect in the product, was rationally eliminated as being inconsistent with the proven facts. This would enable the jury to deduce that the only cause for the product's failure was a defect in the product that existed when it left the seller's hands.
Circumstantial evidence of defect will be most helpful where the product has been destroyed either during or subsequent to the incident and is unavailable for inspection by either side's expert or other witnesses.64 For example, a fire or explosion allegedly coming from the product destroys it while causing other damage. Thereafter, no one can say for sure what part of the product malfunctioned or contained a defect, only that the product as a whole was defective. This would include those situations where the product was accidentally discarded or physically unavailable for examination, such as an allegedly defective suture that breaks inside a person's body and is not retrieved in a subsequent surgery,65 or where a third person not under the control of any party destroys the relevant evidence.66 Loss or unavailability of the product is a frequently encountered occurrence. If there is no design defect found in similar units of the product line,67 but a manufacturing defect in the specific product is suspected, then the trial attorney must lay out all the pertinent circumstances leading up to the incident, eliminate other causes, and let the jury use its own common sense to find that the product was defective.
Circumstantial evidence of defect can also be useful where, for various reasons, the party decides not to call an expert witness. Expert witnesses can be expensive and may not be that useful when there is an innate feeling that the product is defective. As discussed above, there is no fundamental requirement that there must always be expert testimony in a case.68 Sometimes it may be best to lay out a very simple case and let the defense try to prove the non-existence of the defect, when the obvious facts point to the existence of the defect. For the plaintiff's attorney, common sense should be the foundation of both the proof and the argument.
Defense attorneys facing such inferential arguments and proof must take affirmative steps to rebut such inferences by demonstrating that there are equally plausible and/or probable factual explanations as compared to plaintiff's theory, such that when the trial and/or appellate court balances the two or more causes, as a matter of law plaintiff cannot be said to have proven his case by substantial evidence. Proof of other causes most logically will come from expert testimony, which the plaintiff must attack as not being factually based. Procedurally, if there is a lack of substantial circumstantial evidence to support the finding of a defect in the view of the defendant, the defendant should file a motion for summary judgment.69 If the plaintiff does not negate other possible reasons for a particular product's failure, such as the product naturally wearing out over time, then summary judgment to the defendant should be granted.70 Similarly, a motion for directed verdict or a motion for judgment notwithstanding the verdict for the defendant may be sustained in the proper case.71 In essence, the defendant's burden is to show that it is not so out of the ordinary or beyond accepted notions concerning the product that it can fail without there being any defect in the product.
VII. Conclusion
Although infrequently used, Missouri case law has consistently recognized for more than 30 years that the doctrine of strict products liability does not have to be proven using only direct or expert evidence, but the existence of a product defect can be inferred from circumstantial evidence with or without the aid of expert opinion evidence. A corollary thereto is the recognition that accidents or product failures in certain products do not usually occur in the absence of a product defect. Plaintiffs can survive a motion for directed verdict or a motion for a new trial against an assault that the case has not been proven by sufficient substantial evidence with only circumstantial evidence from lay witnesses. Missouri lawyers should be aware of this little used but useful procedure of satisfying their burden of proof.
Endnotes
1 Fain v. GTE Sylvania, Inc., 652 S.W.2d 163 (Mo. App. E.D. 1983).
2 Id. at 164-165.
3 See, Russell v. St. Louis County Cab Co., Inc., 493 S.W.2d 26 (Mo. App. E.D. 1973).
4 445 S.W.2d 362 (Mo. 1969).
5 Grover v. Grover, 972 S.W.2d 568, 573 (Mo. App. E.D. 1998).
6 Keener, 445 S.W.2d at 364. See also, MAI No. 25.04; Klein v. General Elec. Co., 714 S.W.2d 896 (Mo. App. E.D. 1986).
7 Weatherford v. H. K. Porter, Inc., 560 S.W.2d 31, 33-34 (Mo. App. E.D. 1977). See also, Glass v. Allis-Chalmers Corp., 789 F.2d 612, 613 (8th Cir. 1986).
8 Restatement (Second) of Torts, § 402A. See also, Williams v. Ford Motor Co., 494 S.W.2d 678, 680 (Mo. App. E.D. 1973).
9 Duke v. Gulf and Western Mfg. Co., 660 S.W.2d 404, 409 (Mo. App. W.D. 1983).
10 Willard v. Bic Corp., 788 F. Supp. 1059 (W.D. Mo. 1991); Sanders v. Wallace, 817 S.W.2d 511 (Mo. App. E.D. 1991).
11 Williams v. Ford Motor Co., 411 S.W.2d 443, 447 (Mo. App. E.D. 1966) ("Williams I"). See also, Williams v. Ford Motor Co., 494 S.W.2d 678 (Mo. App. E.D. 1973) ("Williams II").
12 See Bombardi v. Pochel's Appliance & T.V. Co., 575 P.2d 540 (Wash. Ct. App. 1973), modified in 518 P.2d 202 (Wash. Ct. App. 1973), noted with approval in Winters v. Sears, Roebuck and Co., 554 S.W.2d 565 (Mo. App. E.D. 1977).
13 Harrell Motors, Inc. v. Flanery, 612 S.W.2d 727 (Ark. 1981); Campbell Soup Co. v. Gates, 889 S.W.2d 750 (Ark. 1994); Wakabayashi v. Hertz, 660 P.2d 1309 (Haw. 1983); Garrett v. Nobles, 630 P.2d 656 (Idaho 1981); Tweedy v. Wright Ford Sales, Inc., 334 N.E.2d 417 (Ill. App. Ct. 1975), aff'd, 357 N.E.2d 449 (Ill. 1976); Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994) (applying Illinois law); Roman v. General Motors Corp., 727 F. Supp. 1153 (N.D. Ill. 1989) (applying Illinois law); Holloway v. General Motors (REH), 271 N.W.2d 777 (Mich. 1978); Estate of Triplett v. General Elec. Co., 954 F. Supp. 149 (W.D. Mich. 1996) (applying Michigan law); Western Surety and Casualty Co. v. General Elec. Co., 433 N.W.2d 444 (Minn. Ct. App. 1988); Stackiewicz v. Nissan Motor Corp., 686 P.2d 925 (Nev. 1984); Buttrick v. Lessard, 260 A.2d 111 (N.H. 1969); Myrlak v. Port Authority of N. Y. and N. J., 723 A.2d 45 (N.J. 1999); Landahl v. Chrysler Corp., 144 A.D.2d 926 (N.Y. App. Div. 1988); Cincinnati Ins. Co. V. Volkswagen of America, Inc., 502 N.E.2d 651 (Ohio 1985); Rogers v. Johnson and Johnson Prods., 533 A.2d 739 (Ohio 1989); Anderson v. Chrysler Corp., 403 S.E.2d. 189 (W. Va. 1991). Section 3 of the new Restatement (Third) of Torts: Products Liability 126 (the American Law Institute, 1997) also recognizes this principle.
14 Maybach v. Falstaff Brewing Corp., 222 S.W.2d 87 (Mo. 1949); Payne v. Reed, 59 S.W.2d 43 (Mo. 1932).
15 Bridgeforth v. Proffitt, 490 S.W.2d 416 (Mo. App. S.D. 1973).
16 MAI No. 3.01, 1986 Revision.
17 White v. Thomsen Concrete Pump Co., 747 S.W.2d 655, 661 (Mo. App. S.D. 1988).
18 Hale v. Advance Abrasives Co., 520 S.W.2d 656, 658 (Mo. App. W.D. 1975). See also, Aetna Casualty and Surety Co. v. General Elec. Co., 758 F.2d 319 (8th Cir. 1985).
19 Hale, 520 S.W.2d at 658; Howard v. Kysor Indus. Corp., 729 S.W.2d 603 (Mo. App. E.D. 1987); White v. Thomsen Concrete Pump Co., 747 S.W.2d 655 (Mo. App. S.D. 1988).
20 Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 570 (Mo. App. E.D. 1977), quoting, Bombardi v. Pochel's Appliance and T.V. Co., 518 P.2d 202, 204 (Wash. Ct. App. 1973).
21 Winters, 554 S.W.2d at 570, citing W. Prosser, Handbook of the Law of Torts § 103, at 673-74 (4th ed. 1971).
22 Rauscher v. General Motors Corp., 905 S.W.2d 158, 161 (Mo. App. E.D. 1995).
23 Winters, 544 S.W.2d at 569, quoting, Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639 (8th Cir. 1972). See also Rogers v. Johnson and Johnson Prods., 533 A.2d 739 (1987).
24 See Crump v. MacNaught P.T.Y. Ltd., 743 S.W.2d 532 (Mo. App. E.D. 1987); Williams v. Deere and Co., 598 S.W.2d 609, 612 (Mo. App. S.D. 1980).
25 Landis v. Sumner Mfg. Co., Inc., 750 S.W.2d 466, 469 (Mo. App. W.D. 1988), quoting, Vaughn v. Taft Broadcasting Co., 708 S.W.2d 656, 661 (Mo. banc. 1986).
26 Weatherford, 560 S.W.2d at 34.
27 McCloskey v. Koplar, 46 S.W.2d 557, 559 (Mo. banc. 1932). See also Balke v. Central Mo. Elec. Coop., 966 S.W.2d 15, 26 (Mo. App. W.D. 1997).
28 City of Kennett v. Akers, 564 S.W.2d 41, 45 (Mo. banc. 1978). See also Austin v. Mitsubishi Electronics America, Inc., 966 F. Supp. 506 (E.D. Mich. 1997); Allstate Ins. Co. v. Pooltime Prods., Inc., 846 F. Supp. 499 (E.D. La. 1994).
29 Browning Ferris Indus. v. Baden Tire Ctr., Inc., 536 S.W.2d 203 (Mo. App. E.D. 1976).
30 411 S.W.2d 443 (Mo. App. E.D. 1966).
31 Id. at 447-48.
32 Williams II, 494 S.W.2d at 681 (inference of defective steering in a brand new car); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972) (applying federal maritime law, inference of a defect in a plane which crashed the day after its delivery to the Navy). See also Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602 (Mo. App. W.D. 1968) (jury could infer that a fire, which started under the hood of a three month old car while the car was stopped in a parking lot, was caused by a defect in material or workmanship); Helm v. Pepsi-Cola Bottling Co. of St. Louis, 723 S.W.2d 465 (Mo. App. E.D. 1986) (inference of a defect in a soda bottle carton that came open, allowing bottles to fall and explode, while carton was being removed from plaintiff's car after purchase).
33 Patterson v. Foster Forbes Glass Co., 674 S.W.2d 599, 604 (Mo. App. E.D. 1984). See also Welge v. Planters Livesaver Co., 17 F.3d 209 (7th Cir. 1994) (jar of peanuts cracked on opening, even though purchaser had taken off label on jar with a razor blade before jar was opened.)
34 Winters v. Sears, Roebuck and Co., 554 S.W.2d 565 (Mo. App. E.D. 1977) (applying inference of defect by circumstantial evidence in a two and one-half year old T.V. set).
35 Williams v. Deere and Co., 598 S.W.2d 609 (Mo. App. S.D. 1980) (existence of a defect from circumstantial evidence could be inferred in a two year old tractor that allegedly jumped out of gear from "park"); Rauscher v. General Motors Corp., 905 S.W.2d 158 (Mo. App. E.D. 1995) (existence of defect from circumstantial evidence in a four year old automobile subject to unpredictable stalls and stops).
36 Fain v. GTE Sylvania, Inc., 652 S.W.2d 163 (Mo. App. E.D. 1983); Crump v. MacNaught P.T.Y. Ltd., 743 S.W.2d 532 (Mo. App. E.D. 1987).
37 Weatherford, 560 S.W.2d at 34-35.
38 Hale, 520 S.W.2d at 659.
39 Jasinski v. Ford Motor Co., 824 S.W.2d 454 (Mo. App. E.D. 1992) (court held that it was "common knowledge" that transmissions may be replaced in a 12-year-old car).
40 Williams v. Deere and Co., 598 S.W.2d at 612; Williams I, 411 S.W.2d at 447. See also Tune v. Synergy Gas Corp., 883 S.W.2d 10, 14 (Mo. banc. 1994). Additionally, there is no requirement that the alleged defective product be produced at trial. Brissette v. Milner Chevrolet Co., 479 S.W.2d 176, 181 (Mo. App. E.D. 1972).
41 905 S.W.2d at 160.
42 Id.
43 Robinson v. Ford Motor Co., 967 F. Supp. 482, 485 (M.D. Ala. 1997), aff'd, 144 F.3d 56 (11th Cir. 1998).
44 Practitioners should be aware that at least one line of cases holds that to prove proximate cause, there must be evidence that the product was a substantial factor in causing the claimed injuries, and that the causal relationship must be established by expert testimony. Harashe v. Flintkote Co., 848 S.W.2d 506, 509 (Mo. App. E.D. 1993). Contrast this with Landis v. Sumner Mfg. Co., Inc., 750 S.W.2d 466, 469 (Mo. App. W.D. 1988), where the court reversed the trial court's granting of the defendant's motion for judgment notwithstanding the verdict on the grounds that the plaintiff had made a submissible case "[a]lthough evidence of causation is purely circumstantial," and no expert apparently testified.
45 See Thudium v. Allied Prods. Corp., 36 F.3d 767, 769 (8th Cir. 1994); Lifritz v. Sears, Roebuck and Co., 472 S.W.2d 28,32 (Mo. App. E.D. 1971).
46 554 S.W.2d at 569.
47 Williams I, 411 S.W.2d at 447-48; Crump, 743 S.W.2d at 534; Rauscher, 905 S.W.2d at 161.
48 643 F. Supp. 499 (E.D. Mo. 1986)
49 Id. at 504.
50 Id. at 505.
51 Id. at 508.
52 Compare Patterson v. Foster Forbes Glass Co., 674 S.W.2d 599 (Mo. App. E.D. 1984) with Weatherford v. H.K. Porter Inc., 560 S.W.2d 31 (Mo. App. E.D. 1977).
53 Winters, 554 S.W.2d at 571. See also Lifritz, 472 S.W.2d at 32.
54 White, 747 S.W.2d at 661.
55 Fain v. GTE Sylvania, Inc., 652 S.W.2d 163 (Mo. App. E.D. 1983) (television set), Winters v. Sears, Roebuck and Co., 554 S.W.2d 565 (Mo. App. E.D. 1977) (television set); Klein v. General Electric Co., 714 S.W.2d 896 (Mo. App. E.D. 1986) (coffee maker).
56 Patterson v. Foster Forbes Glass Co., 674 S.W.2d 599 (Mo. App. E.D. 1984) (glass baby bottle); Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994) (glass jar of peanuts).
57 Aetna Casualty and Surety Co. v. General Elec. Co., 758 F.2d 319 (8th Cir. 1985) (fluorescent light ballast); Estate of Triplett v. General Elec. Co., 954 F. Supp. 149 (W.D. Mich. 1996) (fluorescent light ballast).
58 Williams I, 411 S.W.2d at 447; Williams II, 494 S.W.2d at 680.
59 Anderson v. Chrysler Corp., 403 S.E.2d 189 (W.Va. 1991). See also Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602 (Mo.App. W.D. 1968).
60 Williams v. Deere and Co., 598 S.W.2d 609 (Mo. App. S.D. 1980).
61 Rauscher v. General Motors Corp., 905 S.W.2d 158 (Mo. App. E.D. 1995).
62 Browning Ferris Indus. v. Baden Tire Ctr., 536 S.W.2d 203 (Mo. App. E.D. 1976) (fact that a tire blew out within minutes after it was installed on plaintiff's truck and had been driven only about two miles did not prove that the tire was defective, other possible causes for blow-out not eliminated); Weatherford v. H.K. Porter, Inc., 560 S.W.2d 31 (Mo. App. E.D. 1977) (possibility that jack attachment may have failed because of being tampered with or that it failed from metal fatigue because of prolonged use was not reasonably eliminated, verdict in favor of plaintiff reversed for failure to make submissible case on strict liability theory).
63 Compare Estate of Triplett v. General Elec. Co., 954 F. Supp. 149 (W.D. Mich. 1996) (expert opinions submitted ruling out possible other causes of fire other than light ballast, summary judgment for defendant denied), with Aetna Casualty and Surety v. General Elec. Co., 758 F.2d at 319 (8th Cir. 1985) (cause of fire not limited to light ballast, plaintiff failed to rebut defendant's alternative theories of causation, summary judgment for defendant affirmed). Compare also Helm, 723 S.W.2d at 469-70, (plaintiff held to have made submissible case on alleged unreasonably dangerous cardboard soda carton whose bottom came open, although no specific evidence of defect adduced), with Kates v. Pepsi Cola Bottling, 263 A.2d 308 (Del. Super. Ct. 1970) (soda carton not imminently dangerous as a matter of law to support strict liability cause of action).
64 Patterson, 674 S.W.2d at 604; Winters, 554 S.W.2d at 569.
65 See Rogers v. Johnson and Johnson Prods., 533 A.2d 739 (1987).
66 Helm, 723 S.W.2d at 467. See also Adkins v. K-Mart, 511 S.E.2d 840 (W.Va. 1998).
67 The plaintiff unsuccessfully sought to use circumstantial evidence to prove a design defect in Glass v. Allis Chalmers Corp., 789 F.2d 612, 613-14 (8th Cir. 1986).
68 See notes 40-54 accompanying text.
69 Id.
70 Glass v. Allis-Chalmers Corp., 618 F. Supp. 314 (E.D. Mo. 1986), aff'd, 789 F.2d 612 (8th Cir. 1986). However, see Crump, 743 S.W.2d at 535 (directed verdict for defendants reversed); Rogers, 533 A.2d 739, (directed verdict for defendant reversed where plaintiff's evidence refuted third party's medical malpractice and defendant's evidence supported it as evidence of secondary causation, jury to decide which version of the facts to accept).
71 See Howard v. Kysor Indus. Corp., 729 S.W.2d 603 (Mo. App. E.D. 1987); White v. Thomsen Concrete Pump Co., 747 S.W.2d 655 (Mo. App. S.D 1988).
Mr. Hack is a member of the law firm of Gallop, Johnson & Neuman, L.C., where he practices in the litigation areas of products liability, toxic torts and environmental law. He received his J.D., 1981, from the University of Missouri-Columbia School of Law. He is a member of the Bar Association of Metropolitan St. Louis.
Copyright © 1999, Ronald L. Hack