In Citation Ins. Co. v. Broan-Nutone LLC et al.,1 the US Court of Appeals for the First Circuit affirmed summary judgment for exhaust fan manufacturers on implied warranty of merchantability claims where the plaintiff failed to present admissible expert evidence differentiating whether the defect in the fan was caused by manufacturing or design.
After paying its insured for fire damage to the insured’s home caused by an exhaust fan that overheated and caught fire, Citation sued the fan manufacturer, Broan-Nutone LLC, and Jakel Motors Incorporated, the fan motor manufacturer, in part, on a theory of breach of implied warranty of merchantability. Citation’s implied warranty claims were premised on both manufacturing defect and design defect theories. The district court awarded the defendants summary judgment on both implied warranty claims finding that Citation had failed to present admissible expert testimony that the fan deviated from its intended design, that any alleged manufacturing defect caused the fire in question, or that an available design modification existed for the fan that would reduce the risk of fire without undue cost or interference with the performance of the machinery. The district court had excluded three opinions from Citation’s expert, which were disclosed for the first time at the expert’s deposition.
On appeal, Citation argued the district court erred by failing to apply the “malfunction theory,” which permits a plaintiff to show circumstantial evidence of the defect without showing that defect to have been caused by the product’s design or how it was manufactured, thus negating the need for expert testimony. The defendants disputed whether the Massachusetts courts have adopted the “malfunction theory” in implied warranty claims.
The First Circuit ultimately did not decide the issue of whether Massachusetts courts have adopted the “malfunction theory.” In affirming, the First Circuit explained that even if the court agreed that Massachusetts adopted the “malfunction theory,” Citation’s claims still would have failed.
First, because it failed to raise the argument below, the First Circuit found Citation had waived any argument that it was not required to introduce evidence of alternative designs to prevail on its design defect implied warranty claim under the “malfunction theory.” Therefore, the district court was correct in finding that Citation had failed to proffer sufficient expert evidence of an alternative design, as there was no expert testifying as to the cost effectiveness of any proposed alternative designs.
As to Citation’s manufacturing defect implied warranty claim, the First Circuit affirmed the district court and found that Citation’s attempt to deploy the “malfunction theory” only as to the manufacturing defect claim invited the district court to require it to show how, via circumstantial evidence, an inference could be drawn that a manufacturing defect caused the fire. The First Circuit concluded that, without expert testimony, Citation could not point to any evidence in the record that supported that inference even accounting for the “malfunction theory.” The First Circuit acknowledged that it might seem odd that it was rejecting the application of the “malfunction theory” to Citation’s manufacturing defect–grounded claim because Citation had failed to provide sufficient evidence of a manufacturing defect, “given that such specificity is arguably not required under the malfunction theory.” 2 The court explained that this decision, however, was the result of Citation’s litigation choice not to rely on the “malfunction theory” for its design defect–based claim.
The First Circuit and district court’s opinions in Citation demonstrate the continued importance of expert testimony and its timely disclosure in product liability litigation.
If you have questions regarding the content of this alert, please contact Nick Pompeo, associate, at npompeo@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
1App. No. 25-1426.
2Id. at 21.