Pennsylvania Jury Verdict Review & Analysis
$625,000 RECOVERY - PRODUCT LIABILITY - DEFECTIVE DECORATIVE SOAP-MAKING PRODUCT-BOILING SOAP LEAKS THROUGH HOLE IN PLASTIC CUP-SECOND DEGREE BURNS TO MINOR PLAINTIFF-PERMANENT SCARRING TO LEFT THIGH.
U.S. District Court, Eastern District of Pennsylvania
This product liability action involved a microwavable decorative soap-making product, which the plaintiff claimed was dangerously defective and resulted in second-degree burns to the minor plaintiff. The defendants in the case included the retailer and manufacturer of the product as well as the manufacturer/supplier of the plastic cups, which were included with the product. The complaint included counts of negligence, strict liability, breach of warranty and violation of the Oklahoma Consumer Protection Act. The cause of action arose in Oklahoma and Oklahoma law was expected to apply. It was filed in the Eastern District of Pennsylvania under diversity jurisdiction. The defendant manufacturer and retailer were expected to argue that the minor plaintiff was not properly supervised and misused the product by overheating it. The defendant cup manufacturer contended that it was not informed that the cup provided would be placed in microwave ovens.
The plaintiff's contended that in April 2000, their 11-year old daughter was using a "soap-making" product purchased from the defendant retailer and manufactured by the defendant Rose Art Industries, Inc. The product instructed users age "8 and up" to heat soap in plastic cups which were supplied with the kit. Users were instructed to heat the cups in a microwave oven to make decorative soaps.
The minor plaintiff and her friend were using the product at a friend's home when the plaintiff suffered severe burns to her left leg. The plaintiff claimed that the children were being supervised when the boiling soap spilled from whole, which developed after the cup had been placed in the microwave, according to the plaintiff's claims. The minor plaintiff was left with permanent scarring on the left thigh stemming from the incident.
The plaintiff alleged that the plastic cup manufactured and supplied by the co-defendant was not designed to be heated. The plaintiff contended that at least nine other substantially similar incidents had been reported to the defendants between 1997 and 2002, placing the defendant on notice that the product was dangerously defective.
The plaintiff also claimed that there was evidence that a company in Great Britain had informed the defendant manufacturer that the soap-making product would have difficulty obtaining European approval due to thermal hazards.
The plaintiff's toy safety expert opined that, 1. The product was poorly designed; 2. There was inadequate safety testing; 3. The instructions were misleading and not likely to be understood by children or adults; 4. The product used inappropriate component products (the plastic cup); 5. There was no accounting for product misuse in the design and instructions; and 6. The product made misrepresentations to consumers, namely that safety testing had been conducted and the product complied with the American Society of Testing Materials (ASTM)-F963. In addition, the plaintiff's expert contended that under the Consumer Product Safety Act, the defendant manufacturer was obligated to implement a voluntary recall of the product, send out warning or take other remedial action once it received notice that burn injuries had occurred.
The product instructed that the soap be heated at half power in a microwave for 20 seconds, stirred and heated again for 20 more seconds. The outside of the package noted "Adult Supervision Recommended." Instructions inside the package indicated "Adult Supervision Required."
The defendant cup manufacturer's industrial consultant testified at deposition that the plastic cup at issue was designed for measuring powdered and liquid contents not exceeding 150 degrees Fahrenheit. Whether it was an applicable cup for use with the soap-making product was something to be determined by the manufacturer through testing, according to the defendant's expert. There was a dispute in testimony as to whether the codefendant cup manufacturer was verbally informed that the cup supplied would be heated in a microwave oven.
The defendant manufacturer/retailer's expert engineer concluded that the plaintiff's injury resulted from misuse of the product, specifically overheating in the microwave. The defendant manufacturer's director of product development, who designed the product, testified at deposition that she tested the product in the microwave in the defendant's cafeteria and it worked properly.
The case settled just prior to the plaintiff's scheduled deposition for a total of $625,000. The defendant manufacturer contractually indemnified the retailer, and those defendants contributed $575,000 of the settlement. The defendant cup manufacturer contributed the remaining $50,000.
Plaintiff's toy safety expert: Bert Reiner from Torrington, Conn. Defendant cup manufacturer industrial consultant: Peter Lantos from Erdenheim Defendant manufacturer's engineer: David Pope from Philadelphia Defendant manufacturer's toy safety expert: Steven Wilcox form Philadelphia
Hill vs. Rose Art Industries, Inc. et al. Civil Action no. CV-01-3034: Judge Franklin VanAntwerpen, 3-14-02.
Attorneys for plaintiff: Joel B. Albert of Bala Cynwyd and Andrew S. Abramson of Jenkintown
The plaintiff in this product liability action sought punitive damages based on the allegation that the defendant manufacturer was aware of the product-related burn injuries for several years , yet took no action to recall the product or warn consumers. The soap-making product was recognized to be dangerous and was recalled by the U.S. Consumer Product Safety Commission on March 14, 2002. This and similar cases may have been instrumental in accomplishing the recall. Plaintiff's counsel settled two other claims involving the same product, which arose in New Jersey and Florida. The additional settlements were for $350,000 (Philadelphia Court of Common Pleas, May Term 1999 No. 3845) and $240,000 (Philadelphia Court of Common Pleas, May Term 1999 No. 43). Also, plaintiff's counsel has been retained by families in Arizona and Oregon whose children were injured by the same product in September 2001 and January 2002, respectively.
The punitive damage claim may become more viable as the number of reported burn injuries increases. The case stemming from an incident which occurred in 1997 settled for less than this action which arose in 2000, although the injuries were similar. By the year 2000, the plaintiff contended that the defendant manufacturer was aware that of the 125,000 units of the product manufactured, at least nine burn injuries had occurred in substantially the same manner (holes developing in the plastic cups after being microwaved). In two of the other cases, the court determined that the introduction of other substantially similar burn injury cases would be permitted for purposes of liability and punitive damages. Thus, the later cases settled for more that a strictly compensatory basis and it is believed that there was an added punitive element.