A recent Report and Recommendation by a Magistrate Judge in the United States District Court for the Western District of Pennsylvania may serve as a warning to companies that manufacture and supply products containing button cell batteries of potential personal injury liability for design defect claims.
In Punch v. Dollar Tree Stores, Inc., et al., Civil Action No. 12-154 (W.D. Pa.), the plaintiffs, Tony and Jennie Punch, sued for injuries resulting from their six-day-old infant son Lincoln's ingestion of two 11.6 mm button cell alkaline batteries. Lincoln ingested the button cell batteries after his three-year-old sister removed the batteries from a pair of lighted tweezers and fed them to him. Following discovery, the defendants filed motions for summary judgment asserting, among other things, that the plaintiffs' design defect and failure to warn claims were inadequate as a matter of law. In her Report and Recommendation entered on February 17, 2017, Magistrate Judge Susan Paradise Baxter recommended to the District Court judge, who will ultimately rule on the summary judgment motions, that the defendants' motions be denied as to the design defect claims (thus calling for a trial on the merits of those claims), but granted as to the failure to warn claims.
Design Defect Claims
Magistrate Judge Baxter applied a multi-factor risk-utility analysis previously endorsed by the Pennsylvania Supreme Court in recommending that the case proceed with respect to the plaintiffs' strict liability design defect claim. Although the court acknowledged the utility of button cell batteries, it found that the parties' conflicting expert reports created a genuine issue of fact "as to the potential danger that an 11 mm alkaline battery poses to a child of Lincoln's age." Specifically, conflicting evidence included plaintiffs' expert opining that button cell batteries of all sizes are known to be dangerous and cause catastrophic injuries in children, and defendants' expert opining that button cell battery injuries occur with much higher frequency where battery cells are larger than 18 mm, and that the occurrence of serious injury from button cell batteries smaller than 15 mm is extremely rare.
Magistrate Judge Baxter also found a genuine dispute of material fact with respect to the feasibility and cost of alternative designs for the battery compartment of the lighted tweezers, which "was not secured by any mechanical means and could be removed simply by grasping the case and sliding it off of the main housing." Plaintiffs' engineering expert testified that there were at least five alternative designs, including adding a small screw to the battery housing cover, and that such alternatives would only add "a penny or two" to the manufacturing cost, although he had not performed testing of the alternative designs to confirm added safety. Defendants' expert testified that these alternative designs would add a level of inconvenience to the products that would drive them off the marketplace. The defense expert's testimony was rebutted in part, however, by evidence that other products in the marketplace did utilize some of plaintiffs' expert's proposed alterative designs. On balance, the Magistrate Judge found that the competing testimony amounted to a battle of the experts to be decided by a jury.
The Report and Recommendation also included analyses of the ability of the plaintiffs to avoid injury through reasonable care and the public awareness of the dangers inherent in the product. Although she found that plaintiffs could have avoided the injuries through reasonable care, the Magistrate Judge found that the public awareness factor weighed against the defendants. Even though there was evidence in the record of increasing public awareness in recent years with respect to the dangers of button cell batteries, the plaintiffs testified that they were not aware that the tweezers contained such batteries. Evidence was also in dispute as to whether the lighted tweezers were accompanied at the time of sale by packaging or literature containing warnings about the dangers of the batteries.
Based on her analysis of the above factors, the Magistrate Judge found that summary judgment was inappropriate as to the design defect claims. She also rejected the defendants' related argument that the daughter's actions constituted a superseding cause of the boy's injuries. The Magistrate Judge rejected this argument despite the fact that the daughter eluded parent supervision, retrieved the lighted tweezers from the kitchen closet through the use of a step stool, removed the button cell batteries from the tweezers, and fed them to her infant brother. Even if this chain of events was far-fetched, the Magistrate Judge reasoned, there was evidence that the injuries could have been avoided if the daughter was unable to access the batteries for even a few minutes.
The Court then proceeded to analyze the sounding of plaintiffs' design defect claim under a negligence theory. The Court concluded that the same evidence resulting in genuine disputes of fact with regard to the strict liability design defect claim applied with equal force to the negligence claim.
Failure to Warn Claims
The Magistrate Judge found, however, that the plaintiffs' strict liability and negligent failure to warn claims were not sufficient to go to a jury. In doing so, she rejected the plaintiffs' contention that they would have acted more carefully with respect to the storage of the lighted tweezers if they had been warned of the dangers of the button cell batteries. Specifically, she rejected the argument because evidence in the record showed that the plaintiffs knew the lighted tweezers as a whole were dangerous and, for that reason, had already resorted to keeping them in a kitchen closet that would be difficult for the children to access. Furthermore, she rejected the plaintiffs' argument that they would not have purchased the lighted tweezers if they had been warned that the product contained button cell batteries because evidence showed that they owned numerous other products that contained such batteries, including children's clothing and toys.
Although personal injury litigation resulting from children's ingestion of button cell batteries is not a new phenomenon, Magistrate Judge Baxter's Report and Recommendation in Punch v. Dollar Tree Stores, Inc. should serve as a reminder to manufacturers and suppliers of products containing such batteries to ensure that the evolving standards for safety of product designs, the need for adequate warnings, and the potential cost of litigation related to button cell batteries should not be overlooked.
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