                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-1994

Nowak, et. al. v. Faberge, Intnat'l
Precedential or Non-Precedential:

Docket 92-7660




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Recommended Citation
"Nowak, et. al. v. Faberge, Intnat'l" (1994). 1994 Decisions. Paper 72.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/72


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                     No. 92-7660 & 93-7051


              ALISON NOWAK, a minor, by and through
           her parent and natural guardian LEO NOWAK;
          AMY NOWAK, a minor by and through her parent
                and natural guardian, LEO NOWAK;
     ELIZABETH NOWAK, individually; LEO NOWAK, individually

                               v.

               FABERGE USA INC., t/d/b/a/ AQUANET,
         a/k/a Faberge INTERNATIONAL, a/k/a MARIMO INC.;
                   PRECISION VALVE CORPORATION

                         FABERGE U.S.A., INC.
                         t/d/b/a AQUA NET, a/k/a
                         FABERGE INTERNATIONAL,
                         a/k/a MARIMO, INC.,

                                      Appellants in 92-7660.

                         Faberge U.S.A., Inc.,

                                      Appellant in 93-7051.



         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                 (D.C. Civil Action No. 90-01919)



                      Argued: July 2, 1993

          Before: BECKER, ALITO and ROTH, Circuit Judges

                  (Opinion Filed July 6, 1994)




Michael J. Cefalo, Esquire (Argued)


                                                               2
Lesa S. Gelb, Esquire
Kurt J. Kwak, Esquire
Cefalo & Associates
309 Wyoming Avenue
West Pittston, PA 18643
          Attorneys for Appellees

Ernest J. Bernabei, III, Esquire
Harvey, Pennington, Herting & Renneisen, Ltd.
1835 Market Street
Eleven Penn Center, 29th Floor
Philadelphia, PA 19103

Patrick T. Ryan, Esquire (Argued)
Alfred W. Putnam, Jr., Esquire
Lawrence A. Nathanson, Esquire
Drinker, Biddle & Reath
1345 Chestnut Streets
Philadelphia Natinal Bank Building
Philadelphia, PA 19107
          Attorneys for Appellant




                       OPINION OF THE COURT



ROTH, Circuit Judge:



          This case arises from a tragic accident involving

appellant Faberge's hair spray product, Aqua Net.   The appellee

Alison Nowak punctured an aerosol can of Aqua Net near a flame

and suffered severe injuries from the resulting fire.   The jury

found that a defective valve system and inadequate warnings on

the hair spray can proximately caused Alison's injuries.   She was

awarded damages of $1.5 million.

          Appellant Faberge contends that the district court

failed to make a ruling as a matter of law that the product was



                                                                   3
defective.     Under Pennsylvania tort law, the district court was

required on the basis of the averments made by the plaintiff to

determine whether or not Faberge's product was defective, both as

to the valve system and as to the warnings on the can, prior to

sending the case to the jury for its deliberations on whether the

facts in evidence supported these averments.     The district court

did not explicitly make the findings as to defect.    However, we

conclude that under Pennsylvania law the district court could

implicitly make these determinations by the fact that it sent the

case to the jury.     Appellant Faberge bore the burden of

requesting an explicit ruling on this issue if it desired one.



             The parties do not contest the main facts.   Faberge

manufactures Aqua Net hair spray worldwide in both aerosol and

non-aerosol pump spray containers.     Aqua Net contains a mixture

of butane or propane, as the aerosol propellant, and alcohol, as

a solvent for the propellant and the hair-holding agent.      Alcohol

is flammable and both propane and butane are extremely flammable.

Aerosol cans of Aqua Net carry a warning on the back stating,

among other things, "Do not puncture" and "Do not use near fire

or flame."

             On April 3, 1989, Alison Nowak, a fourteen-year-old

girl, tried to spray her hair with a newly-purchased aerosol can

of Aqua Net.     The spray valve would not work properly.    Alison

decided to cut open the can with a can opener.     She thought she

could then pour the contents into an empty pump bottle of Aqua

Net which had a working spray mechanism.     Alison was standing in


                                                                      3
the kitchen near a gas stove when she punctured the can.     A cloud

of hair spray gushed from the can and the stove's pilot light

ignited the spray into a ball of flame.    Alison suffered severe,

permanently disfiguring burns over 20% of her body.

           Alison, along with her parents and her twin sister,

filed suit against Faberge.    They claimed that Alison's injuries

had three causes:    a manufacturing defect in the nozzle valve of

the aerosol can, inadequate warnings on the can, and a defect in

the design of the hair spray because it included a flammable

solvent and propellant.    The Nowaks also filed a separate suit

against Precision Valve Corporation which had designed,

manufactured, and sold the valve mechanism used on the can.    The

two lawsuits were consolidated and tried together.    At trial the

district court granted Precision Valve's motion for a directed

verdict because plaintiffs had not demonstrated that the valve

was defective at the time it left Precision Valve's control.     The

district court also directed verdicts against Alison's parents

and sister on their claims against Faberge.

           At the conclusion of the presentation of evidence, the

district court submitted the case to the jury on special

interrogatories:    1) Was the valve system in the product

defective when it was distributed for sale by the defendant,

Faberge?   2) Was the product defective because it contained a

flammable solvent and propellant?   3) Was the product defective

because it did not contain adequate warnings?    The jury answered

"No" to the second question, but it answered "Yes" to the first

and third questions, finding further that these particular


                                                                     4
defects were each a proximate cause of plaintiff's injuries.       The

jury awarded $1.5 million in damages to Alison.    On November 13,

1992, the district court denied Faberge's motions for judgment

n.o.v. and for a new trial.    This appeal followed.



           The district court's jurisdiction over this case rested

on 28 U.S.C. § 1228.    This Court's jurisdiction arises from 28

U.S.C. § 1291.     The parties agree that Pennsylvania law governs

this case.    Federal courts sitting in diversity "must apply the

substantive law of the state whose laws govern the action."

Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir.

1990) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).

             This Court's review of the district court's decision to

submit the issues of product defect and causation to the jury is

plenary.

             Under Pennsylvania law, whether a product is defective

under the facts alleged by the plaintiff is initially a question

of law to be answered by the trial judge.     Mackowick v.

Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990).      The

supplier of a product is the guarantor of its safety.    A product

is considered to be defective "where the product left the

supplier's control lacking any element necessary to make it safe

for its intended use or possessing any feature that renders it

unsafe for the intended use."    Azzarello v. Black Bros. Co., 391
A.2d 1020, 1027 (Pa. 1978).    The determination of whether a

product is defective under Pennsylvania law is a two-stage

inquiry.     Id. at 1025-26; Griggs v. BIC, 981 F.2d 1429, 1432 (3d

                                                                      5
Cir. 1992).   Initially, the question of whether a product is

defective, given the facts as alleged by the plaintiff, is a

question of law to be answered by the trial judge.   If the judge

determines as a matter of law that Pennsylvania's social policy

supports placing the risk of loss on the manufacturer in the

situation alleged by the plaintiff, then the case goes to the

jury for a determination as to whether the facts alleged by the

plaintiff are true.   The Pennsylvania Supreme Court has stated

this proposition clearly:
          Should an ill-conceived design which exposes
          the user to the risk of harm entitle one
          injured by the product to recover? . . .
          [This is a question] of law and [its]
          resolution depends upon social policy. . . .
          It is a judicial function to decide whether,
          under plaintiff's averment of the facts,
          recovery would be justified; and only after
          the judicial determination is made is the
          case submitted to the jury to determine
          whether the facts of the case support the
          averments of the complaint.

Azzarello, 391 A.2d at 1025-26.

          Under Pennsylvania strict liability law, a defect may

be in the warnings given for the use of the product as well as in
the design of that product.   A product can be held to be

defective "if it is distributed without sufficient warnings to

notify the ultimate user of the dangers inherent in the product."

Mackowick, 575 A.2d at 102.   In Mackowick, the Pennsylvania

Supreme Court reaffirmed Azzarello, explicitly holding that the

determination that a product is defective because of inadequate

warnings is initially a question of law to be answered by the




                                                                    6
trial judge.     Id.   See also Mazur v. Merck & Co., 964 F.2d 1348,

1366 (3d Cir.), cert. denied, 113 S. Ct. 463 (1992).

          Our review of the record in this case demonstrates that

the trial judge did not make an explicit determination, prior to

sending the case to the jury, that Faberge's product was

defective, either as to the spray mechanism or as to the warnings

on the can.    The Nowaks argue that the judge implicitly made the

necessary threshold legal finding in three ways:     by sending the

case to the jury, by denying Faberge's motion for a directed

verdict, and by ruling against one of Faberge's motions in limine

that challenged the Nowaks' ability to present evidence on the

inadequacy of the warning.     The Nowaks also argue that Faberge

failed to request a specific ruling by the judge that its product

was defective.     Based on our reading of Pennsylvania law and our

review of the record, these arguments are valid.

          Faberge asserts that the Azzarello threshold

determination by the trial court should be made explicitly.     We

agree that this is desirable.     Given the many complex and fact-

based considerations involved, requiring an explicit ruling by

trial courts on this often difficult question of social policy

would increase the instructive value of the holding for other

courts, for potential plaintiffs, and for manufacturers who seek

guidance from the courts' products liability decisions.     Explicit

rulings would also improve the clarity of the trial court record

for purposes of appellate review.1      However, the Pennsylvania

1
See e.g. Childers v. Joseph, 842 F.2d 689, 697 (3d Cir. 1988)
(remanding for development of the record as to the district


                                                                      7
Superior Court, sitting in banc in review of a strict liability

case, has held that the Azzarello threshold determination can be

made implicitly:
          Nothing in Azzarello precludes a manufacturer
          or supplier, by appropriate motion, from
          asking the trial court to make explicit its
          ruling on the threshold determination of
          social policy that Azzarello requires. In
          the absence of such a motion, it will be
          presumed that the court, by permitting the
          case to go to the jury, resolved the
          threshold determination against the
          defendant.

Dambacher by Dambacher v. Mallis, 485 A.2d 408, 423 n.6 (Pa.

Super. 1984) (in banc), appeal dismissed, 500 A.2d 428 (Pa.

1985).   In another recent Pennsylvania Superior Court case, also

reviewing a trial court's decision in a strict liability action,

the court noted:
          [T]he record below contains no indication
          that such an analysis was undertaken by the
          lower court. While our prior cases have not
          explicitly required as of yet an on-the-
          record analysis, or even a reference that a
          risk-utility analysis was made, we note that
          either would facilitate an appellate court's
          analysis.

Marshall v. Philadelphia Tramrail, 626 A.2d 620, 625 n.2 (Pa.

Super. 1993).

           This Court gives "due regard" to the decisions of

Pennsylvania's intermediate appellate courts as "indicia of how

the state's highest court would decide a matter."   Ciccarelli v.

Carey Canadian Mines, Ltd., 757 F.2d 548, 553 n.3 (3d Cir. 1985).


court's finding concerning "unreasonable dangerousness."). See
also Hon v. Stroh Brewery Co., 835 F.2d 510, 514 (3d Cir. 1987);
Fravel v. Suzuki Motor Co., 486 A.2d 498, 502 n.3 (Pa. Super.
1984).


                                                                    8
Based on the Pennsylvania Superior Court's statements in

Dambacher and Marshall and our review of the record here, we

conclude that the district court, by sending the case to the

jury, implicitly made the necessary threshold ruling required

under Azzarello.

            Given Dambacher, we also hold that, if Faberge had

desired an explicit ruling on defect, it bore the burden of

requesting such a determination by the trial judge.    Our

examination of the record here has uncovered no such request.     We

note that a federal district court in this circuit, in a strict

liability case applying Pennsylvania law, has held, in response

to a motion by the defendant requesting a specific threshold

ruling under Azzarello, that:   "If a request is made by a party,

the trial judge should be required to articulate the reasons for

his/her decision on the question of 'social policy' . . .."

Shetterly v. Crown Controls Corp., 719 F. Supp. 385, 388 (W.D.

Pa. 1989) (citing Dambacher, 485 A.2d at 423 n.6).

            We once again urge that implicit rulings not be

utilized.    Indeed, we have previously criticized a district court

for making the determination that a product was defective in the

form of an evidentiary ruling. We noted in that case that:
          We are puzzled by the district court's
          decision to make this legal determination in
          the posture of an evidentiary ruling. The
          legal determination of whether a product is
          "unreasonably dangerous" under Pennsylvania
          law is tantamount to -- and should more
          appropriately have been -- a ruling made upon
          motion for summary judgment or a directed
          verdict.

Childers v. Joseph, 842 F.2d 689, 696 n.7 (3d Cir. 1988).


                                                                    9
          While the Pennsylvania courts have so far held that the

threshold social policy ruling required by Azzarello can be made

implicitly, appellate review benefits from a clear and explicit

ruling by the trial court.   The threshold decision concerning

whether a product is defective as a matter of law can be

difficult to make:   "In making this determination, the judge acts

as a combination social philosopher and risk-utility analyst."

Ellis v. Chicago Bridge & Iron Co., 545 A.2d 906 (Pa. Super.

1988).   Courts and commentators have suggested several factors to

be considered in making this complex determination.   See

Dambacher, 485 A.2d at 423 n.5.2   See also Azzarello, 391 A.2d at

2
Dambacher cites two lists of factors to be considered when
making the social policy decision required by Azzarello. The
first, adopted by the California Supreme Court, includes: the
gravity of the danger posed by the challenged design; the
likelihood that such a danger would occur; the mechanical
feasibility of a safer design; the financial cost of a safer
design; and the adverse consequences to the product and to the
consumer that would result from a safer design. See Barker v.
Lull Eng'g Co., 573 P.2d 443, 455 (Cal. 1978). The second,
drafted by Dean Wade, includes:
          (1) The usefulness and desirability of the
          product--its utility to the user and to the
          public as a whole.
          (2) The safety aspects of the product--the
          likelihood that it will cause injury, and the
          probable seriousness of the injury.
          (3) The availability of a substitute product
          which would meet the same need and not be as
          unsafe.
          (4) The manufacturer's ability to eliminate
          the unsafe character of the product without
          impairing its usefulness or making it too
          expensive to maintain its utility.
          (5) The user's ability to avoid danger by
          the exercise of care in the use of the
          product.
          (6) The user's anticipated awareness of the
          dangers inherent in the product and their


                                                                  10
1025-26; Lobianco v. Property Protection, Inc., 437 A.2d 417,

424-25 (Pa. Super. 1981).   We reiterate that a specific ruling by

the district court on these factors, whether the claimed defect

be of design or of inadequate warning, would facilitate our

review.



          For the reasons stated above, however, we find that the

district court implicitly made the threshold risk-utility

determination that appellant's product was defective under the

facts, as alleged, by sending this case to the jury.   We conclude

that this is a sufficient determination under Pennsylvania law.

We will, therefore, affirm the verdict and judgment of the

district court.3




           avoidability, because of general public
           knowledge of the obvious condition of the
           product, or of the existence of suitable
           warnings and instructions.
           (7) The feasibility, on the part of the
           manufacturer, of spreading the loss [by]
           setting the price of the product or carrying
           liability insurance.
John W. Wade, On the Nature of Strict Tort Liability for
Products, 44 Miss. L.J. 825, 837-38 (1973) (footnote omitted).
3
 We have reviewed Faberge's other claims of error and find them
to be without merit.

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