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1836 CALLOWHILL STREET t/a MIRABELLE, et al. vs. JOHNSON CONTROLS, Inc., et al. CIVIL ACTION NO. 91-7643 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA 819 F. Supp. 460, CCH Prod. Liab. Rep. P13,612, 1993 U.S. Dist. LEXIS 5684 April 28, 1993, Decided COUNSEL For 1836 CALLOWHILL STREET, INC. t/a MIRABELLE, ROHNER CONSTRUCTION COMPANY, INC., RELIANCE INSURANCE COMPANY, ROHNER CONSTRUCTION, INC., CHRISTOPHER J. ROHNER, PLAINTIFFS: DONNA L. ADELSBERGER, KRUSEN, EVANS & BYRNE, 6TH & WALNUT STS., STE. 1100, THE CURTIS CENTER, PHILA, PA 19106, USA. For JOHNSON CONTROLS, INC., DEFENDANT: CHRISTOPHER SCOTT D'ANGELO, RICHARD M. SIMINS, MONTGOMERY, MCCRACKEN, WALKER & RHOADS, THREE PARKWAY, 20TH FLOOR, PHILA, PA 19102, USA. For THE TRANE COMPANY, DEFENDANT: DOUGLAS EVAN RESS, MARGARET L. LOUD, KAUFMAN, COREN & RESS, 1525 LOCUST ST., 16TH FL., PHILA, PA 19102, USA. JUDGES Ludwig AUTHOR: EDMUND v. LUDWIG OPINION {F. Supp. 461} MEMORANDUM Defendants Johnson Controls

April 28, 1993

1836 CALLOWHILL STREET t/a MIRABELLE, et al.
v.
JOHNSON CONTROLS, Inc., et al.



The opinion of the court was delivered by: EDMUND V. LUDWIG

 Defendants Johnson Controls, Inc. and The Trane Company move for summary judgment. Fed.R.Civ.P. 56. *fn1"

 This is an action for property damage that occurred on December 31, 1989 when the failure of a heating system manufactured by defendant The Trane Company caused sprinkler pipes to freeze and burst in the cold weather. Plaintiffs are the owners and an insurer of the premises at 1836 Callowhill Street, Philadelphia, and the owners of a neighboring apartment building. The particular mechanism responsible for the breakdown was an ignition control that had been manufactured by defendant Johnson Controls, Inc. The complaint sounds in strict liability and negligence for failure to warn and to test.

 I.

 Since 1966, Pennsylvania has recognized a cause of action in strict products liability under section 402A of the Restatement (Second) of Torts. *fn2" See Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 181, 565 A.2d 751, 754 (1989) (citing Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)). *fn3" A plaintiff presents a prima facie case of strict liability by showing that the product was defective and that the defect caused the injury. Rogers, 523 Pa. at 182, 565 A.2d at 754. Where direct evidence of a particular defect cannot be offered, a plaintiff may rely instead on evidence of product malfunction. Id. ; Barris v. Bob's Drag Chutes & Safety Equipment, Inc., 685 F.2d 94, 101 (3d Cir. 1982) (applying Pennsylvania law). When proceeding on a malfunction theory, a plaintiff must prove: 1) product malfunction; 2) the absence of abnormal use; and 3) the absence of reasonable secondary causes. Rogers, 523 Pa. at 182, 565 A.2d at 754. "The malfunction theory in no way relieves the plaintiff of the burden of proving a defect: it simply allows him to show that a defect is the most likely explanation for an accident by eliminating other reasonable explanations." Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 125 (3d Cir. 1984). In other words, the malfunction theory is a rule of evidence.

 II.

 A.

 Here, the initial dispute is whether plaintiffs have pointed to a specific defect or are relegated to a malfunction theory. This disagreement focuses on the affidavit of plaintiffs' expert, Martin M. Van Adelsberg. According to plaintiffs, the affidavit specifically identifies a defect in the ignition control component of the heating unit. *fn4" Defendants' initial position is that the affidavit is not worthy of consideration under Rule 56(e) because the affiant has not been qualified as an expert. *fn5" This argument must be rejected. A nonmoving party may use affidavits in opposition to a summary judgment motion. An expert's affidavit, although not based on personal knowledge as is generally required under Rule 56(e), is eligible for summary judgment consideration if the affiant would be qualified to give the expert opinion at trial. See Shaw v. Strackhouse, 920 F.2d 1135, 1139 (3d Cir. 1990); Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975); Backes v. Valspar Corp., 783 F.2d 77, 79 (7th Cir. 1986). Defendants have not suggested that Van Adelsberg would be unqualified to testify as an expert and have not contested his credentials or expertise in the field. *fn6"

 Although Van Adelsberg's report may lack specificity, it raises a triable issue as to the existence of a defect at the time the product was sold. Whether plaintiffs will rely solely on direct evidence at trial or also on circumstantial evidence of product malfunction need not be considered at this time. Plaintiffs are not required to elect one theory to the exclusion of the other, i.e., specific defect or malfunction. In an ordinary tort case, a plaintiff may prove specific negligence combined with a res ipsa loquitur claim. See Stewart v. Ford Motor Company, 179 U.S. App. D.C. 396, 553 F.2d 130, 141 (D.C. Cir. 1977) (case submitted to jury on alternative grounds of specific defect and res ipsa loquitur); see also Evidence of Specific Negligence as Affecting Reliance on Res Ipsa Loquitur, 33 A.L.R.2d 791, 795 (1954). The malfunction theory has been analogized to res ipsa loquitur in that both are rules of evidence rather than distinct causes of action. Both allow the fact-finder to draw an inference that a defect existed in the product as originally sold. See Schwartz, New Products, Old Products, Evolving Law, Retroactive Law, 58 N.Y.U.L.R. 796, 829 (October 1983). Similarly, a product liability plaintiff should be permitted to proceed on alternative theories of specific defect and malfunction. See Schwartz, New Products, 58 N.Y.U.L.R. at 835. At trial, the particular thrust of Van Adelsberg's opinion may become more intelligible and more consistent with one approach than the other.

 B.

 Defendant Johnson Controls maintains that plaintiffs should not be permitted to proceed on a malfunction theory because the product was operational for a "prolonged trouble-free" period. See Woelfel v. Murphy Ford Co., 337 Pa. Super. 433, 436, 487 A.2d 23, 24 (1985). Prolonged trouble-free use may give rise to an inference that the defect did not exist "at the time the product left the defendant's control." Roselli v. General Electric Co., 410 Pa. Super. 223, 229, 599 A.2d 685, 688 (1991), appeal granted, 530 Pa. 645, 607 A.2d 255 (1992). However, that circumstance alone will not preclude recovery. As stated by the Pennsylvania Supreme Court almost two decades ago:

 
We recognize that, as a general rule, "prolonged use of a manufactured article is but one factor, albeit an important one, in the determination of the factual issue whether [a defect in design or] manufacture proximately caused the harm" . . . The age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected.

 Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 336, 319 A.2d 914, 923 (1974). This approach is binding - and well reasoned. Plaintiffs offered evidence that the Trane heating unit had an expected useful life of 15 years. Experts for both plaintiffs and defendant Trane believed the ignition control should have lasted at least that long. The ignition control is alleged to have malfunctioned after only six years despite no intervening disassembly, repair, or inspection. Given these circumstances, there is a triable issue on the malfunction theory of products ...


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