Local news reports indicate the Indianapolis plaintiff, a medical student, sustained burns back in March, 2019, while cooking with his girlfriend. He spent months in the hospital and had to undergo numerous skin grafts and other surgeries after suffering burns on most of his upper body. He and other plaintiffs are now incensed the company refuses to recall the product and insists the cooking spray is safe.

Plaintiff was cooking when a can of the common spray, sitting near the stove top, reportedly exploded, erupting into a fire. As his girlfriend noted, “He’s a full-time med student. He’s educated. He’s very smart – and he had no idea.”

She said they know to keep cooking oil away from hot surfaces, especially away from a hot stove top. The can was far enough away to prevent a problem.

Through the independent testing of some personal injury law firms, a defect has been discovered in the way certain PAM spray cans were made, resulting in a serious safety hazard. While the manufacturer has altered the design of newer cooking spray cans, it has refused to issue a recall for those items already shipped – a move some injury lawyers are calling, “beyond irresponsible.”

Product Liability Litigation in Indiana

These kinds of cases are what are known as product liability claims, governed largely by the Product Liability Act, Indiana Code 34-20-1-1 through 34-20-9-1. These provisions of law cover claims filed by a user or consumer of products against manufacturers for physical injuries resulting from harm by a product.

These provisions hold that any company that puts a product into the stream of commerce for any reason that is defective/unreasonably dangerous will be subject to liability for resulting harm.

As product liability attorneys can explain, the law is drafted to allow sellers to be held responsible even if they took all reasonable care in the making and preparing of a product (a theory known as strict liability). However, if a plaintiff alleges defective design or inadequate warning/instruction for product use, then a plaintiff has to show the manufacturer/seller failed to use reasonable care based on the circumstances.

Products can be considered “defective” if a reasonable person handling/consuming it in the way it’s intended to be used/consumed wouldn’t anticipate such danger.

Unsafe Cooking Spray Can Design

Plaintiffs suing the food company allege the company opted for the design of cans that were susceptible to explosion because they were cheaper.

Furthermore, attorneys argue, the company refused to warn people about the very serious risks – and still refuse to issue a national recall to ensure all dangerous cans are removed from store shelves so no one else suffers serious and permanent injuries due to burns/explosions.

The company insists its cans are no more dangerous than other aerosols.

In addition to Indiana, other exploding-can burn incidents have occurred the last two years in Illinois, Texas and Utah. Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

It was a disappointing outcome, but as Indiana product liability attorneys, we recognize it’s important for attorneys – and plaintiffs too – to understand what went wrong so that we can formulate a smart strategy moving forward in similar cases. Appellate court opinions on the state and federal levels are especially important to consider because they help us gauge how courts are likely to interpret other cases in the future.

Here, according to court records, the plaintiff’s physician implanted an intrauterine device called ParaGard, made by a company named Teva. About five years after the device was implanted, the plaintiff decided she was dissatisfied with it and asked her physician to remove it. The physician did so by grasping the strings of the IUD with a ring forceps and pulling down. However, in so doing, only a piece of the device was removed. Another piece broke off either prior to or during removal, and it became lodged in her uterus. The only way to remove it, her doctors opine, is for her to undergo a hysterectomy.

The plaintiff sued the product manufacturer in federal court, alleging strict product liability, strict product liability failure to warn, and a manufacturing defect. She was given a deadline for expert witness disclosures, but she made none. After the deadline passed with no expert witness disclosure, the defendant moved for summary judgment, arguing Indiana statute requires expert witness testimony to prove causation in product liability actions. The plaintiff’s failure to do so meant she would be unable to prove a key element of her claim. She responded that causation in this Indiana product liability action was so straightforward that no expert witness testimony would be required because it could be well understood by a lay juror. The trial court disagreed, granting the motion.

On appeal, the court noted these claims arise under the Indiana Products Liability Act, which governs all actions brought by consumers against manufacturers for physical harm caused by a product. For each of her claims, she would have to prove the injury was “proximately caused” by the defect or breach of duties that underlies her claim. State law indicates expert witness testimony is required when a certain issue isn’t within the understanding of a layperson. Causation of an injury typically falls under this umbrella. Thus, if circumstantial evidence requires the average juror to purely speculate in order to find causation, expert witness testimony is necessary.

The plaintiff insisted that proximate cause here was obvious because it involves facts that are not complicated. A juror could look at the fact of the broken medical device and clearly see that there was some error on the manufacturer’s part that caused the break. However, both the trial court and the appellate court ruled that this would require speculation by jurors. Yes, the IUD was broken, but what caused it? Was it damaged before it came into the possession of the physician who inserted it? Was it damaged during implantation? During removal?

The appellate court called this matter “far removed from situations in which the causation issue would be obvious.”

As our Indiana product liability lawyers can explain, in almost all defective product lawsuits, expert witness testimony is required to prove causation.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Dalton v. Teva North America, June 4, 2018, U.S. Court of Appeals for the Seventh Circuit

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The plaintiff’s original claim to the trial court was that the product’s faulty instructions, inadequate warnings, and lack of a safety guard (or any explicit information regarding a proper safety guard) made the air-compressor tool unreasonably dangerous as manufactured. The defense countered that no reasonable jury could find the plaintiff less than 51 percent at fault for his injuries (the standard under Indiana’s comparative fault law), given each of the three defenses presented: misuse, alteration, and incurred risk. Specifically, the defense argued the plaintiff misused the product and altered the product, and there was an incurred risk for the use of the product.

The trial court ruled the plaintiff misused the grinder as a matter of law because he did not wear safety glasses. In the plaintiff’s appeal, he noted that the power tool was defective because it was sold without a safety guard, and the company gave no instruction on how to obtain or use such a guard, which was not and is not available for purchase by the company. Furthermore, the plaintiff argued the instructions didn’t warn users of the possible danger of using the tool with a cut-off wheel absent a safety guard.

Indiana Code section 34-20-2-1 holds that a product can be defective within the meaning of the Indiana Product Liability Act when there is a manufacturing flaw, a design flaw, or a failure to warn of the possible dangers in using the product. The plaintiff’s claim falls under the umbrella of the latter two.

It is true that Indiana’s comparative fault law does apply to product liability cases, which means the plaintiff’s own fault in causing the harm suffered can result in a reduction of damages – or the dismissal of the claim if his fault exceeds 51 percent. Alleged misuse of a product falls under the comparative fault principles, but it isn’t a complete defense. In this case, the defendant argued the plaintiff misused the tool by not wearing proper safety glasses, attaching and using a cutoff disc without a guard in place, and using a cutoff disc that didn’t have a solid RPM rating. The defense argued this was against the instructions it provided within the product, which the plaintiff testified he’d read before using it.

It wasn’t disputed that the plaintiff didn’t wear safety glasses, although he testified he thought his eyeglasses were sufficient protection. They were not, but as the appellate court ruled, his percentage of fault in that needs to be weighed by a jury, rather than decided by a judge as a matter of law in summary judgment. Furthermore, with regard to using the cutoff disc absent a guard, the court noted the company clearly foresaw that the tool would be used this way because it included an instruction warning individuals not to use a cutoff disc on the tool “unless safety guard is in place.” However, the tool didn’t contain a safety guard, indicate how to obtain a safety guard, or even define it. Furthermore, the company didn’t designate this “instruction” as any kind of warning that would alert the user that they should pay special attention to it.

The appellate panel ruled that based on the statutory defenses it asserted, the company wasn’t entitled to summary judgment.

If you have been injured as a result of a defective power tool or other equipment, our Indiana product liability attorneys can help you identify all possible avenues for financial compensation.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Campbell Hausefeld v. Johnson, Dec. 29, 2017, Indiana Court of Appeals

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