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Lewis v. American Cyanamid Co.9/26/1996
The opinion of the Court was delivered by BROCHIN, J.A.D.
Plaintiff Peter Lewis was very badly burned over 25 percent of his body when the flame from the pilot light of a gas oven or a spark from a refrigerator motor ignited the gaseous hydrocarbon propellants that were released into the air by his use of two cans of defendants' aerosol insecticide, Combat Room Fogger. Plaintiff instituted this products liability action for damages against the manufacturer, defendant United Industries Corporation, and the distributor, defendant American Cyanamid Company. He claims that his injuries were caused by the defective design, manufacturing and labeling of the product.
The defective labeling claim was dismissed before trial on the ground that it was preempted by FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.A. ยงยง 136a - 136y. Only the claims of defective design and manufacturing were submitted to the jury.
The trial Judge summarized the facts of the case in a written opinion which he prepared after the verdict to explain his decision of several post-trial motions. His factual summary conforms in all material respects to our understanding of the record. It describes the facts as follows:
United Industries manufactured a room fogger known as "Combat" which was marketed to kill roaches and fleas. The package in which the Combat canisters were sold contained the following warning:
1. Cover exposed food, dishes and food handling equipment. Open cabinets and doors to areas to be treated. Shut off fans and air conditioners. Put out all flames and pilot lights. Close doors and windows.
2. Tilt top of can away from face. Press valve all the way down, hooking the catch.
3. Then place fogger on stand, table or floor in center of room with the valve locked open, with several layers of newspaper or pad under fogger. Leave treated area for 2 hours.
4. After 2 hours, open all doors and windows, turn on air conditioners and fans and let the treated area air for 30 minutes.
On July 4, 1989 the plaintiff, Peter Lewis, made use of the fogger. The manner in which he did so comes from his testimony and is not in dispute. He bought a box containing three Combat six-ounce cans of fogger. He had a roach problem in the kitchen. He put one can of fogger underneath a counter and another can underneath a range. He then activated both cans and left the room. After he left the room he observed that foam was dripping down the can which he had placed underneath the counter and he entered the room in order to correct the operation of that fogger by manipulating the valve through which the effluent was released. He did so and then, for some reason not important in this decision, a can burst into flames and he was severely burned over about twenty-five percent of his body.
Aside from the question whether the fogger which was foaming was defectively manufactured, the primary issue at trial was whether the propellant used in the manufacture was an appropriate one. The fogger contained a water-based solution with a flammable hydrocarbon propellant. Wilbur Boyer, plaintiff's expert witness on the subject, testified that the use of a flammable propellant was a design defect because a non-flammable propellant known as dymel, or P-22, was available.
Montford Johnsen, testifying on behalf of defendant, stated that in the early 1980s it was known that P-22 could cause birth defects and also that it was an ozone depleter. He testified also that if P-22 were used, the pressure in the can would have to be sixty percent higher than with the hydrocarbon which actually was used, in which case the
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