Thurs,june26 440-yhc case-study
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Thurs,june26 440-yhc case-study Presentation Transcript

  • 1. A Presentation by
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  • 6. 7 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.
  • 7. 8 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.  
  • 8. 9 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.
  • 9. 10
  • 10. 11 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.
  • 11. 12 Also Known As   Indeterminate Defect Theory   General Defect Theory   A Principle of Circumstantial Evidence   Strict Liability on Steroids
  • 12. 13   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
  • 13. 14 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.
  • 14. 15 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.
  • 15. 16 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.
  • 16. 17 (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.
  • 17. 18 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.
  • 18. 19 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.
  • 19. 20 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.
  • 20. 21 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.  
  • 21. 22 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.
  • 22. 23  Peanut butter jar  Television  Electric blanket  Clothes dryer  Aircraft  Lawn tractor  Coffee carafe  Automobile
  • 23. 24  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
  • 24. 25 Arizona Arkansas California Colorado Connecticut Delaware Florida Hawaii Idaho Illinois Indiana Kansas Louisiana Michigan Minnesota Missouri Montana Nevada New Jersey NewYork North Carolina Ohio Oregon Pennsylvania South Carolina Texas Washington WestVirginia Wyoming
  • 25. 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.      
  • 26. 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.
  • 27. 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 NewYork 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.
  • 28. 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 theYour House Counsel® Recreation and Amusement Liability Practice Group.
  • 29. 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; MotorVehicle 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.
  • 30. ALABAMA Birmingham Miller, Christie & Kinney, P.C. Paul A. Miller, pmiller@mnclaw.com Kyle L. Kinney, kkinney@mck-law.com 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, cbeeman@clappmoroney.com 505 Montgomery Street, 11th Floor San Francisco, CA 94111 Phone: (415) 874-3562 www.clappmoroney.com ALABAMA Mobile Vickers, Riis, Murray and Curran, L.L.C. E. L. McCafferty, III, elm@vickersriis.com J. Marshall Gardner, mgardner@vickersriis.com RSA Trustmark Building 107 St. Francis Street, 21st Floor Mobile,AL 36602 Phone: (251) 432-9772 www.vickersriis.com ARIZONA Elardo, Bragg, Appel & Rossi John A. Elardo, jelardo@ebarlaw.com Venessa J. Bragg, vbragg@ebarlaw.com 3001 East Camelback Road, Suite 130 Phoenix,AZ 85016 Phone: (602) 889-0272 www.ebarlaw.com COLORADO Grund, Dagner, & Jung, P.C. Deana R. Dagner, Partner, drdagner@gdjlegal.com Douglas A. Stevens, Partner, dastevens@gdjlegal.com 1660 Lincoln Street, Suite 2800 Denver, CO 80264 Phone: (303) 830-7770 www.gdjlegal.com CONNECTICUT Raymond Law Group Bruce H. Raymond, Raymond@raymondlawgroup.com 90 National Drive Glastonbury, CT 06033 Phone: (860) 633-0580 www.raymondlawgroup.com FLORIDA Powers / McNalis / Torres / Teebagy / Luongo Anna D.Torres, atorres@powersmcnalis.com Stephanie H. Luongo, sluongo@powersmcnalis.com 1601 Belvedere Road Suite 500S West Palm Beach, FL 33416 Phone: (561) 588-3000 www.powersmcnalis.com ILLINOIS Doherty & Progar LLC Kevin W. Doherty, kwd@doherty-progar.com Mary Jo Greene, mjg@doherty-progar.com 200 West Adams Street, Suite 2220 Chicago, IL 60606-5231 Phone: (312) 630-9630 www.doherty-progar.com INDIANA Indianapolis House Reynolds & Faust, LLP Briane M. House, bhouse@housereynoldsfaust.com Thomas Todd Reynolds, treynolds@housereynoldsfaust.com 11711 North Pennsylvania Street,Suite 190 Carmel, Indiana, 46032 Phone: (317) 564-8490 www.housereynoldsfaust.com INDIANA Northern Doherty & Progar LLC Kevin W. Doherty, kwd@doherty-progar.com Mary Jo Greene, mjg@doherty-progar.com 8105 Georgia Street Merrillville, Indiana 46410-6224 Phone: (219) 513-9000 www.doherty-progar.com LOUISIANA Johnson, Johnson, Barrios & Yacoubian PLC Alan J.Yacoubian, ajy@jjbylaw.com René S. Paysse, Jr., rspaysse@jjbylaw.com 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, GPetruccelli@pmhlegal.com James B. Haddow, JHaddow@pmhlegal.com 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, ebacon@lawbtp.com Patricia M.Thornton, pthornton@lawbtp.com 6411 Ivy Lane Suite 500 Greenbelt, MD 20770 Phone: Phone: (301) 345-7001 www.lawbtp.com MASSACHUSETTS Coughlin Betke LLP Christopher G. Betke, cbetke@coughlinbetke.com Andrew R. Ferguson, aferguson@coughlinbetke.com 175 Federal Street Boston, MA 02110 Phone: (617) 988-8050 www.coughlinbetke.com MICHIGAN Collins Einhorn Farrell PC David C.Anderson, David.Anderson@CEFLawyers.com Michael J. Sullivan, Michael.Sullivan@CEFLawyers.com 4000 Town Center, Suite 909 MINNESOTA Johnson & Lindberg, P.A Michael C. Lindberg, MLindberg@johnsonlindberg.com Mark J. Peschel, MPeschel@johnsonlindberg.com 780 Northland Plaza 3800 American Boulevard West Minneapolis, MN 55431 Phone: (952) 851-0700 www.johnsonlindberg.com MISSISSIPPI Anderson Crawley & Burke, pllc James M.Anderson, janderson@acblaw.com Timothy D. Crawley, tcrawley@acblaw.com 216 Draperton Court Ridgeland, MS 39157-3905 Phone: (601) 707-8800 www.acblaw.com MISSOURI Rynearson, Suess, Schnurbusch & Champion L.L.C. Debbie S. Champion, dchampion@rssclaw.com John Kemppainen, jkemppainen@rssclaw.com 500 N. Broadway, Suite 1550 St. Louis, MO 63102 Phone: (314) 421-4430 www.rssclaw.com NEW JERSEY Shafer Glazer, LLP Howard S. Shafer, HShafer@ShaferGlazer.com David A. Glazer, DGlazer@ShaferGlazer.com 90 John Street, Suite 701 NewYork, NY 10038 Phone: (212) 267-0011 www.ShaferGlazer.com NEW YORK Albany Flink Smith LLC Edward Flink, 449 New Karner Rd Albany, NY 12205 NEW YORK Downstate Shafer Glazer, LLP Howard S. Shafer, HShafer@ShaferGlazer.com David A. Glazer, DGlazer@ShaferGlazer.com 90 John Street, Suite 701 NewYork, NY 10038 Phone: (212) 267-0011 www.ShaferGlazer.com NEW YORK Rochester Connors & Corcoran, PLLC Eileen E. Buholtz, ebuholtz@connorscorcoran.com 45 Exchange Blvd. Times Square Building, Suite 250 Rochester, NY 14614 Phone: (585) 232-5885 www.connorscorcoran.com NORTH CAROLINA Bailey & Dixon, LLP David S. Coats, dcoats@bdixon.com David S.Wisz, dwisz@bdixon.com 434 Fayetteville Street, Suite 2500 Raleigh, NC 27601 Phone: (919) 828-0731 www.bdixon.com OHIO Mazanec, Raskin & Ryder Co., L.P.A. John T. McLandrich, jmclandrich@mrrlaw.com Joseph F. Nicholas Jr., jnicholas@mrrlaw.com 100 Franklin’s Row 34305 Solon Road Cleveland, OH 44139 Phone: (440) 248-7906 www.mrrlaw.com OKLAHOMA Hiltgen & Brewer, P.C. Michael W. Brewer, mwbrewer@hiltgenbrewer.com Cary E. Hiltgen, cehiltgen@hiltgenbrewer.com 9505 North Kelley Avenue Oklahoma City, OK 73131 Phone: (405) 605-9000 www.hiltgenbrewer.com OREGON Smith Freed & Eberhard P.C. Jeffrey D. Eberhard, jeberhard@smithfreed.com Justin R.Wickizer, jwickizer@smithfreed.com 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, blake@bbs-law.com Charity Hyde, hyde@bbs-law.com 1601 Market Street, 16th Floor, Philadelphia, PA 19103 Phone: (215) 561-4300 www.bbs-law.com RHODE ISLAND Hanson Curran LLP Megan J. Goguen, mjg@hansoncurran.com James T. Murphy, jtm@hansoncurran.com 1 Turks Head Place #550 Providence, RI 02903 Phone: (401) 421-2154 www.hansoncurran.com TEXAS Dallas Carnahan Thomas, LLP Michael S. Carnahan, mcarnahan@carnahanthomas.com Jason N.Thomas, jthomas@carnahanthomas.com 1190 N. Carroll Avenue Southlake,TX 76092 Phone: (817) 424-1001 www.CarnahanThomas.com TEXAS Houston Doyen Sebesta Scot G. Doyen, sdoyen@ds-lawyers.com Randall J. Poelma, Jr., rpoelma@ds-lawyers.com 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, jeberhard@smithfreed.com Justin R.Wickizer, jwickizer@smithfreed.com 705 2nd Ave, 17th Floor Seattle,Washington 98104 Phone: (206) 576-7575 www.SmithFreed.com WISCONSIN Milwaukee Doherty & Progar LLC Kevin W. Doherty, kwd@doherty-progar.com Mary Jo Greene, mjg@doherty-progar.com 250 East Wisconsin Avenue Suite 1800 Milwaukee,Wisconsin 53202-4232 Phone: (414) 347-9600 www.doherty-progar.com YourHouseCounsel.com
  • 31. A Presentation by