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Burkhart v. Proctor & Gamble

A-5195-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

PRODUCTS LIABILITY—An injured product user may present circumstantial evidence of the cause of his or her injury and is entitled to the “heeding presumption” which assumes that, absent rebutting evidence, the injured user would have heeded a manufacturer’s warnings had they been given.

A woman sued the manufacturer of a “daily renewal cream” claiming she was injured by the cream. She alleged violation of the Product Liability Act, asserting that the cream was defectively manufactured and failed to contain adequate warnings. The lower court dismissed the claim, believing that this was a toxic tort action. If so, the woman had failed to allege sufficient facts to demonstrate medical causation, a necessary component of a toxic tort claim. The lower court also concluded that the woman’s dermatology expert’s report was only a net opinion, meaning that she could not show that the product was the proximate cause of her injuries.

The Appellate Division disagreed, holding that the complaint did not allege an environmental tort, which is the same as a toxic tort. The Product Liability Act defines environmental torts as civil actions seeking damages for harms caused by exposure to “toxic chemicals or substances.” The Act, however, does not cover environmental tort actions involving drugs or products intended for personal consumption. In addition, the woman’s evidence raised genuine issues of material fact on the required elements of a failure-to-warn product liability cause of action. The woman alleged she had applied the renewal cream to her face; the manufacturer had failed to warn about potential skin irritation; and, the failure to warn was a proximate cause of her injuries.

To establish the second element, the woman had submitted a toxicologist’s report stating that people with pale complexions and sensitive skin should avoid the product because they were particularly sensitive to one of its ingredients. The toxicologist opined that the caution label should have carried such an appropriate warning. At a minimum, this raised a genuine issue of fact as to the adequacy of the product’s warning.

In terms of the proximate cause requirement, the New Jersey Supreme Court had previously developed a “heeding presumption.” Here, the manufacturer offered no suggestion that the woman would have ignored the toxicologist’s suggested warning. Therefore, it did not rebut the presumption that the woman would have heeded an adequate warning. This meant that the woman was presumed to have established that the defective warning was a proximate cause of her use of the cream. The woman’s dermatology expert also provided further information about the connection between the woman’s adverse reaction and the cream. Since the manufacturer’s expert opined that the injuries were caused by a preexisting condition, there was an issue of fact regarding whether the application of the cream was the proximate cause of the injuries.

To meet her burden of proof in her failure-to-warn product liability action, the woman offered both expert testimony and circumstantial evidence (which is allowed in product liability cases). Although the company contested most of the evidence, the Court held that resolution by a jury was required, and summary judgment in favor of the manufacturer was unwarranted.

The Appellate Division also disagreed with the lower court’s characterization of the woman’s expert’s opinion as a “net opinion.” A doctor’s testimony based upon facts provided by others, together with his or her own training and experience, is properly admitted evidence. It was not simply a net opinion, which would be bare conclusions unsupported by factual evidence. For that reason, the Court held it provided a sufficient basis for a jury to hear his testimony.

The Court also held that the woman presented enough prima facie evidence to support an indeterminate product defect claim. She showed the burning, redness, and irritation of the type that could occur as a result of a product defect. Although the manufacturer’s expert disputed this, a reasonable jury could find that her skin reaction “was of a kind that ordinarily occurs as a result of a product defect.” For those reasons, the Appellate Division reversed the lower court’s decision to grant summary judgment in favor of the manufacturer, and remanded the case to be decided at a trial.

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