Plaintiff’s Defect Theory Up in Smoke? Enter Malfunction Theory

The Connecticut Supreme Court recently made its ruling in White v. Mazda Motor of Am., 313 Conn. 610. In White, the plaintiff asserted design defect claims against Mazda after a car purchased by the plaintiff burst into flames one month later. The plaintiff’s complaint cited a laundry list of various defects which may have caused or contributed to the incident. To support its allegation, the plaintiff retained a certified fire investigator as an expert. The plaintiff’s expert testified that “the fire appears to be from the cause of a mechanical failure and … is the direct result of gasoline leaking on a hot surface causing the vehicle to catch fire.” Upon further examination, however, the plaintiff’s expert testified that “he was ‘not offering an opinion that the [vehicle] was defective … .” He also agreed that he was not an expert in automobile electronics, design or manufacture, and that he was not an expert in fuel line component manufacture or design.”

Mazda moved for summary judgment arguing that expert testimony is required in a design defect case and that the plaintiff’s expert, having admitted that he was not offering an opinion as to a defect, was tantamount to no expert testimony at all. A threshold requirement under Connecticut’s Product Liability Act is the existence of a defect within the product at the time the product left the manufacturer. The trial court granted summary judgment, holding that expert testimony was required to assist the jury in this case.

On appeal, the plaintiff raised the argument that without expert testimony as to a specific defect and without expert testimony ruling out potential alternative causes, the circumstantial evidence could permit the jury to infer that a defect existed within the product at the time it left the manufacturer. This theory is commonly known as the malfunction theory. The malfunction theory argument however, was never raised in response to the defense’s motion for summary judgment. The majority in the appellate court therefore did not analyze whether the malfunction theory could serve to defeat summary judgment absent a specific defect. Appellate Court Justice West authored a dissent, not only arguing that the malfunction theory was raised, but that there was sufficient circumstantial evidence in this case to permit a jury to decide whether there was a defect in the product. The case was subsequently appealed to and heard by the Supreme Court of Connecticut.

The Supreme Court stressed the general rule that an appellate court cannot decide an issue for the first time on appeal. Our appellate courts, as a general practice, will not review claims made for the first time on appeal. The plaintiff therefore, must, in order to put defendants on notice of the theory of liability, plead such theory in their complaint.  In order to effectively plead a claim under the malfunction theory, the Supreme Court required that the two main elements of a malfunction theory claim be plead: “1) the incident that caused the plaintiff’s harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of the reasonably possible causes not attributable to the manufacturer or seller.  While there does not need to be a separate count devoted to the malfunction theory, the court held that sufficient facts must be pled to place the defendant on notice of the allegations. While, the court explained, this theory lowered the burden of proving direct evidence of a defect, it raised the burden on plaintiff in negating other possible causes.

In response to the plaintiff’s arguments that the malfunction theory was raised in response to the the defendant’s motion for summary and then again at oral argument, the court refused to divest itself of the rule that facts in support of a claim under the malfunction theory must be affirmatively pled. The court likened this requirement to the pleading rules when asserting a claim based on res ipsa. The court acknowledged the difference between a res ipsa claim and a claim based on the malfunction theory, but stated that the requirement for pleading specific facts to place the defense on notice was necessary.

While the Supreme Court focused almost exclusively on the pleading requirement for a malfunction theory claim, analysis into the substance of the malfunction theory was set forth not only in Justice West’s dissent, but at oral argument in front of the Connecticut Supreme Court. There significant devotion at oral argument as to whether the plaintiff’s expert ruled out all potential alternative causes. These potential causes, as discussed by the justices, could have ranged from a rock puncturing the fuel tank to a bird taking refuge in the engine compartment. The plaintiff’s counsel argued that there was no testimony as to any alternative causes and as a result, the “lack of alternative causes” factor was shown.

Despite Supreme Court’s requirement that the plaintiff plead and rule out potential alternatives, the defense must take an active role in evaluating potential alternative causes. It has been said that a good defense is nice, but it’s much better to have the ball. The defense can establish its own alternative causation scenarios with which to confront the plaintiff’s experts or cast doubt on the elimination of alternative causes.

Consulting an expert by the defense at the outset will preserve the defense’s ability to evaluate any evidence of alternative theories while it still exists. In fire cases, this is particularly important, because evidence can be severely altered or destroyed before the defense has an opportunity to view it. Alternative causes that  may have existed at the time of the fire may not even be known about at the time the scene or evidence is examined. Evidence in fire cases should therefore be preserved as soon as possible.


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