would be noticed; that more prominent warnings would be visible; and that the warnings as contained on the can were nestled in obscurity on the back of the can and didn't "jump out at you" as should be expected, established the inadequacy of the warning.
It is clear that a jury could find that the warnings given were inadequate; that adequate warnings would have caused the plaintiff to notice them and be able to read them; that notice as to what should be done if the can failed to function properly would have caused the plaintiff to refrain from attempting to open the can; and, consequently, that the defective warning was a significant factor in causing piaintiff's injuries.
Defendant cites six (6) reasons in support of its request for a new trial.
1. Defendant continues to argue that the jury should not have been instructed on the issues of defective valve system and inadequate warnings. The pertinent factual background and the applicable law were reviewed extensively in the preceding consideration of the motion for judgment n.o.v. That analysis establishes that this argument is unsupportable and it will be rejected.
2. As to the objections to the exemplar earning cans and the Aqua Net spray can marketed in Canada, they were admitted to show how stronger and more visible warnings could have been placed on the can by Faberge. The fact that more stringent warnings are placed on the Canadian cans because they are required by Canadian law is of no moment. There was no mention of the Canadian legal requirement in the presence of the jury but, even if there were, it would not impair or negate the reason for which it was admitted. The exemplars were used to illustrate and buttress the testimony of plaintiff's experts and were also probative for that reason.
3. A Consumer Product Safety Commission document and the Faberge Consumer Complaint Monitor of 1988 were admitted to show that Faberge was aware of malfunctioning of the valve systems, as well as puncturing of cans including puncturing near open flames. Dr. Carl Abraham testified that Faberge was aware of, and had access to, the Commission document. This evidence was admissible on the question of foreseeability which Faberge vigorously challenged, as well as a foundation for the opinions by plaintiff's experts. Moreover, the bulk of the complaints concerned failures to spray which corroborated plaintiff's malfunction claim.
4. Over objection, Dr. Maurice Siegel, formerly employed by Faberge as Chief of Quality Control and Product Development, was allowed to testify concerning the increased danger in the use of hydrocarbons, butane and propane in place of fluorocarbons because of their flammability. Faberge had argued that the fluorocarbons were flammable and that there was no increase in danger due to the substituted hydrocarbons. Consequently, it was permissible to allow testimony on that disputed issue. Moreover, the focus of Dr. Siegel's testimony was on the alleged design defect, a theory rejected by the jury.
5. Defendant also contends that Dr. Steven Wilcox, a Ph.D. and Human Factors Expert, should not have been allowed to testify as to appropriate labeling because his testimony was cumulative The testimony was pertinent, of assistance to the jury and was not cumulative.
6. Finally, defendant complains that the in-court demonstration spraying Aqua Net Hair Spray near a flame was prejudicial. Dr. Siegel stated that the substitution of hydrocarbons for fluorocarbons as a propellant created a more hazardous product and so informed the marketing department. Dr. Carl Abraham, a chemist with a Ph.D. in Physical and Organic Chemistry, testified at length concerning the extreme flammability of the product, describing it as a hidden hazard similar to a "bomb in a can". He demonstrated how rapidly and intensely the spray with the new propellant would ignite when exposed to flame. This was relevant to corroborate plaintiff's experts' testimony as well as to reveal the type of ignition that took place when plaintiff punctured the can. Further, it would be probative to support plaintiff's contention that, mindful of the danger involved, the manufacturer should have provided a stronger and more visible warning to consumers.
Defendant's motions have been carefully considered and are held to be without merit. Accordingly, the motion for judgment n.o.v. and/or for a new trial will be denied.
William J. Nealon
United States District Judge
Date: November 13, 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 812 F. Supp. 492.
AND NOW, this 13th day of November, 1992, in accordance with the Memorandum this day filed, IT IS HEREBY ORDERED that the motions for judgment n.o.v. and/or a new trial are denied.
William J. Nealon
United States District Judge