Area of Origin Alone is Insufficient to Prove a Defect

Breaker panel fire

On the night of January 16, 2011, a security guard employed to monitor power service to a subdivision of vacant homes noticed that several homes in the Southbury, Connecticut subdivision had lost power. The subdivision, consisting of five homes that sat vacant since being built in 2005 had been experiencing false fire alarms and power outages. Two hours after the employee alerted his superior of the power outage, it was discovered that one of the homes was on fire. The fire was investigated by representatives of the insurer for the property (ACE) who placed on notice, Eaton, the manufacturer of a “Meter Pan” which was involved in the electrical system of the home. ACE subsequently sued Eaton, for strict liability seeking to recover payments it made to its insured. This lawsuit is captioned Ace Am. Ins. Co. v. Eaton Elec., Inc., No. 3:11-CV-1741 CSH, 2015 WL 233032, (D. Conn. Jan. 16, 2015).

The “meter pan” was described as a meter enclosure which, in a separate compartment, contains a circuit breaker. Plaintiff’s expert described the function of this device as serving to channel electrical service through the bottom of the panel, travels up to the meter, through the meter and to the circuit breaker and thereafter into the home. This meter enclosure was enclosed in a rectangular metal container and affixed to the side of the home.

Plaintiff’s expert concluded that the fire was caused by a short circuit at the circuit breaker’s Line side components “most probably due to a defect that allowed moisture ingress.” The defect and the location of the defect rendered the circuit breaker ineffective in preventing the fault from creating excess temperature build up which subsequently led to the ignition of combustibles to which the metal enclosure was adhered, to ignite.

At oral argument, the defense argued that Plaintiff’s complaint alleged that there was a specific defect present within the meter pan and that Plaintiff had insufficient evidence through expert testimony that such a defect existed. Plaintiff’s argued however, that no specific defect was alleged within Plaintiff’s complaint, and that they were allowed to argue a defect theory based on the malfunction theory.

We recently reported on the Connecticut Supreme Court case of White v. Mazda Motor of Am., Inc., 313 Conn. 610, 99 A.3d 1079 (2014) wherein the Supreme Court of Connecticut refused to permit Plaintiff to argue that a defect existed within an automobile without alleging specifically what the defective condition was. Plaintiff’s argued that they were permitted to advance their allegations of defect based on the malfunction theory. Allegations based on the malfunction theory however, were not pled in the complaint or raised at the summary judgment stage. The Connecticut Supreme Court stated, “that in order to put defendants on notice of the theory of liability, plead such theory in their complaint.” The District Court in ACE however, permitted the plaintiff to advance their product liability complaint based on the malfunction theory.

The malfunction theory permits a plaintiff to advance a cause of action sounding in product liability without pointing to a specific defect. This theory of liability is based on the idea that if one can eliminate all other potential alternative causes, then it can be inferred that a defect existed within the product at the time it left the manufacturer. The seminal case in Connecticut which sets forth the requirements for advancing a defective product theory is Metropolitan Property and Casualty Insurance Company v. Deere and Company, 302 Conn. 123, 25 A.3d 571 (2011). The Metropolitan Court permitted the inference of a defect absent a specific defect where: “(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 other reasonably possible causes not attributable to the manufacturer or seller.” The kinds of circumstantial evidence used to prove the above elements, the Metropolitan Court identified were evidence of: “(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 [23]  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.”

The defense moved to exclude plaintiff’s expert’s opinions under FRE 702 and Daubert on the grounds that the expert’s opinions had no bases on which to argue that a defect in the product existed.  In ruling on Plaintiff’s motion, the Court focused largely on the fourth factor, the age of the product, stating that: “the older a product, the more speculative becomes a theory of damage caused by a defect attributable to the manufacturer. However, whether the product be new or old, just unwrapped from its packaging or hanging on the side of a house for six years, a products liability plaintiff must prove the existence of a defect that caused the harm.” That element was stressed in Metropolitan, when the Supreme Court came to apply the principles it articulated to the facts in that case. Ace Am. Ins. Co. v. Eaton Elec., Inc., 2015 WL 233032, at *9

The Court stated that since Plaintiff’s expert asserted the theory that moisture was allowed into the enclosure, it needed to come forward with evidence, circumstantial in this case, that the meter enclosure could permit moisture to enter the enclosure. In fact, Plaintiff’s expert could not say how much moisture was permitted to permeate the enclosure, how the moisture was allowed to permeate the enclosure and how the moisture caused the defect. When Plaintiff’s expert tested his theory by submerging the meter pan in water and freezing it, no moisture was permitted to enter the enclosure.

 

Not only is that opinion unsupported in any meaningful way by circumstantial evidence, the concept of a defect admitting a fatal amount of moisture is contrary to circumstantial evidence: the length of time the device remained in place exposed to the elements, with seemingly no malfunctions; and the continued operation of the circuit breaker component in the comparable device which Cristino subjected to what it is fair to call water torture.

Id. at 13

Plaintiff raised the common argument in response to motions to exclude, that criticisms of an expert’s opinions go to the weight, not the admissibility of the opinion. The Court however, rebuked that argument, stressing the court’s role as a gatekeeper and that an approach admitting expert testimony and letting a jury decide how much credibility to assign it, was not the approach favored by the Second Circuit. In refusing to admit the testimony of Plaintiff’s expert, the Court noted that the expert’s opinions must be based on data and facts, and that in this case, there is “no data” and a “near-total absence of facts.” Further cementing the Court’s opinion was the fact that Plaintiff’s expert undertook tests to evaluate the likelihood of moisture accumulation which resulted in a finding that moisture was not permitted into the enclosure in which plaintiff’s expert claimed had occurred.

The Court’s opinions suggests that the Second Circuit considers its gatekeeping role very seriously and that opinions as to defect must be substantiated by actual facts and not mere speculation. In this case, both parties acknowledged that there was a short circuit in the circuit enclosure at some point in time. While the court acknowledged that the condition of the enclosure is “consistent with a condition that might permit combustion,” merely narrowing down an area of origin or in this case what may be argued as a point of origin is not sufficient when a specific defect cannot be proven and there is little to no circumstantial evidence suggesting that a defect exists.


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