Products Liability Law Reporter

A federal district court ruled that a defendant was entitled to conduct limited destructive testing of a spray canister at issue in a products liability lawsuit.

Grace Bozick was preparing and serving a meal when an aerosol spray canister of PAM that was resting on a countertop exploded in her kitchen, causing her to suffer serious injuries, including permanent scarring. She sued Conagra Foods, Inc., and Conagra Brands, Inc., alleging products liability, negligence, breach of express and implied warranties, and deceptive trade practices in violation of N.Y. Gen. Bus. Law §349. The plaintiff alleged that the can had prematurely buckled and vented at room temperature and that this resulted from the fact that it had been manufactured grossly out of specification. Specifically, the plaintiff asserted that the bottom of the container was made from steel that was too thin as compared to the material specified for the can.

The defendants moved for an order permitting them to conduct limited destructive testing of the PAM spray canister. The defendants, who asserted that the explosion resulted from another cause and not an out-of-specification manufacture, proposed having an independent laboratory examine the can, cut into the bottom of the can, and measure its thickness. Even if the can were manufactured out of specification, the defendant argued, the can at issue here exploded from other causes. The plaintiff objected to the defendants’ proposed limited destructive testing.

Granting the motion, the court noted the four-part test applicable to a determination of whether to permit destructive testing of evidence. Citing case law, the court said that a court must consider whether the proposed testing is reasonable, necessary, and relevant to proving the movant’s case; whether the non-movant’s ability to present evidence at trial will be hindered or whether the non-movant will be prejudiced in some other way; whether there are any less prejudicial alternative methods of obtaining the evidence; and whether there are adequate safeguards to minimize prejudice to the non-movant, including the non-movant’s ability to present evidence at trial.

Applying these factors, the court found that the defendants did not propose the destructive testing to bolster an expert opinion or to gain irrelevant information. The testing is directly relevant to the defendants’ theory of the case and is necessary and reasonable to support that theory, the court found, adding that evidence that the can’s bottom had the appropriate thickness would prove the defense argument that the plaintiff’s misuse of the can led to the explosion. The fact that the plaintiff’s experts do not believe that the proposed destructive testing will enable the defendants to prove their case is irrelevant, the court said. Under applicable case law, the court found, a defendant need not prove its case before being afforded the opportunity to prove its case. Additionally, a plaintiff is not entitled to decide when a defense issue is fully investigated.

Therefore, the court held that the defendants could move forward with limited destructive testing of the can.

Comment: In Schmidt v. Conagra Foods, Inc., 2020 WL 7027445 (D. Conn. Nov. 30, 2020), Emma Schmidt and Hallie Meyer were deep frying potatoes at the home of Meyer’s parents when a fire erupted suddenly. Schmidt and Meyer sued Conagra Foods, Inc., alleging that the fire resulted from a defective can of PAM cooking spray that unexpectedly vented and caused flammable material to ignite near the stove. The plaintiffs asserted violations of the Connecticut Products Liability Act, Conn. Gen. Stat. §52-572m et seq., and claimed manufacturing defect, defective design, and failure to warn. The court granted the defendant summary judgment on the manufacturing defect and design defect claims based on the defendant’s alleged under-pressuring of the spray can but denied summary judgment on the plaintiffs’ failure-to-warn claim and their design defect claim based on the defendant’s use of A-70 propellant. The plaintiffs were represented by AAJ members Kathleen L. Nastri, J. Craig Smith, Alinor Clemans Sterling, Antonio Ponvert, Emily Rock, and William Bloss, all of Bridgeport, Conn.; and AAJ member Frank Cesarone, St. Charles, Ill.

Citation: Bozick v. Conagra Foods, Inc., 2020 WL 7022504 (S.D.N.Y. Nov. 30, 2020).