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NOWAK v. FABERGE U.S.A.

November 13, 1992

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; LEO NOWAK, Individually; and ELIZABETH NOWAK, Individually, Plaintiffs
v.
FABERGE U.S.A., INC.; and PRECISION VALVE CORPORATION, Defendants



The opinion of the court was delivered by: WILLIAM J. NEALON

 On April 7, 1992, a jury verdict was returned against defendant Faberge *fn1" in this products liability case for serious burn injuries sustained by the minor plaintiff when she punctured can of Aqua Net hair spray resulting in the ignition of the spray when it came into contact with the flame from a gas stove. The jury found that the valve system in the hair spray can was defective when it was distributed for sale by Faberge because it failed to operate properly and was also defective because it did not contain adequate warnings. On the separate theory of design defect in the hair spray formulation, *fn2" the jury found for the defendant. The jury found that those defects were the proximate cause of Alison's injuries and awarded her *fn3" $ 1,500,000.00. Defendant Faberge filed post-trial motions for judgment notwithstanding the verdict, see Fed. R. Civ. P. 50, and for a new trial, see Fed. R. Civ. P. 59. See also documents 179 and 203 of record. The plaintiff has filed both a reply and a brief in opposition to the defendant's motions. See documents 185 and 206 of record. Oral argument was held on August 5, 1992, and the motions are now ripe for disposition. For reasons which follow, the defendant's motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial, will be denied.

 I.

 MOTION FOR JUDGMENT N.O.V.

 In deciding a motion for judgment n.o.v., the record is reviewed in the light most favorable to the verdict-winner, Link v. Mercedes-Benz, 788 F.2d 918 (3rd Cir. 1986), and the motion must be denied "unless the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief". Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3rd Cir. 1980). The motion will be addressed with those principles in mind.

 A.

 FACTUAL BACKGROUND

 Faberge manufactures the product "Aqua Net Hair Spray" by assembling component parts, inserting the liquid solvent under pressure and applying the labeling language on the can. The valve assembly component involved here was purchased from Precision Valve Company, one of three suppliers. The main ingredient in the solvent is alcohol and a liquified propellant to activate the spray is mixed into and dissolved in the solvent. A rosin is also inserted in order to hold the hair in place upon application. (The can in question contained an "extra super hold" rosin, which was larger in amount and created more film than the standard spray and could cause clogging on the surface of the valve assembly.) At one time, a non-flammable fluorocarbon propellant was utilized but had to be discontinued because it caused environmental problems in the ozone layer. In fact, a fluorocarbon propellant spray was not only non-flammable, but could actually put out a fire. As a result, hydrocarbons, butane and propane, were substituted as propellants for the non-flammable fluorocarbon. Butane and propane are extremely flammable, more so than gasoline, and are considered to be dangerous.

 After the fluorocarbons were discontinued in favor of hydrocarbons, Faberge concluded that it would be to its advantage for marketing purposes if consumers would not perceive any change in the product. The marketing department at Faberge had the final word as to the warning to be placed on the product, and it was decided that "everything must be made to appear the same" even after being made aware that a more hazardous material was now involved. This decision was made notwithstanding the fact that reports Faberge received from the Consumer Products Safety Commission, as well as consumer complaints directly to the company, disclosed incidents of consumers being injured while puncturing aerosol cans near an open flame.

 On April 2, 1989, plaintiff's sister, Amy Nowak, purchased the can of Aqua Net hair spray at an Acme Market. The front of the can contained the language "FREE! 33% MORE" and the label "AQUA NET" in large letters. There was no wording on the top of the can. The back of the can contained the usual product promotional claims as well as the ingredients against a light violet background and, in the middle between the claims and the ingredients, and of the same color (white), the following information appeared:

 CAUTION: FLAMMABLE. DO NOT USE NEAR FIRE OR FLAME OR WHILE SMOKING.

 WARNING: Avoid spraying in eyes. Contents under pressure.

 Do not puncture or incinerate.

 Do not store at temperature above 1200 F.

 Keep out of reach of children. Use only as directed. Intentional misuse by deliberately concentrating and inhaling the contents can be harmful or fatal.

 This lettering was of lesser size and prominence than the references on the front and back of the can to "FREE! 33% ...


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