United States District Court,
M.D. Pennsylvania.
Alison NOWAK, a Minor, By and Through her Parent and Natural Guardian, Leo NOWAK; Amy Nowak, a Minor, by and through her Parent and Natural Guardian, Leo Nowak; Leo Nowak, Individually; and Elizabeth Nowak, Individually, Plaintiffs,
FABERGE U.S.A., INC.; and Precision Valve Corporation, Defendants.
Civ. No. CV 90-1919.
Nov. 13, 1992.

3. A Consumer Product Safety Commission document and the Faberge Consumer Complaint Monitor of 1988 were admitted to show that Faberge was aware of malfunctioning of the valve systems, as well as puncturing of cans including puncturing near open flames. Dr. Carl Abraham testified that Faberge was aware of, and had access to, the Commission document. This evidence was admissible on the question of foreseeability which Faberge vigorously challenged, as well as a foundation for the opinions by plaintiff's experts. Moreover, the bulk of the complaints concerned failures to spray which corroborated plaintiff's malfunction claim.

[16] 4. Over objection, Dr. Maurice Siegel, formerly employed by Faberge as Chief of Quality Control and Product Development, was allowed to testify concerning the increased danger in the use of hydrocarbons, butane and propane in place of fluorocarbons because of their flammability. Faberge had argued that the fluorocarbons were flammable and that there was no increase in danger due to the substituted hydrocarbons. Consequently, it was permissible to allow testimony on that disputed issue. Moreover, the focus of Dr. Siegel's testimony was on the alleged design defect, a theory rejected by the jury.

[17] 5. Defendant also contends that Dr. Steven Wilcox, a Ph.D. and Human Factors Expert, should not have been allowed to testify as to appropriate labeling because his testimony was cumulative. The testimony was pertinent, of assistance to the jury and was not cumulative.

[18] 6. Finally, defendant complains that the in-court demonstration spraying Aqua Net Hair Spray near a flame was prejudicial. Dr. Siegel stated that the substitution of hydrocarbons for fluorocarbons as a propellant created a more hazardous product and so informed the marketing department. Dr. Carl Abraham, a chemist with a Ph.D. in Physical and Organic Chemistry, testified at length concerning the extreme flammability of the product, describing it as a hidden hazard similar to a "bomb in a can". He demonstrated how rapidly and intensely the spray with the new propellant would ignite when exposed *500 to flame. This was relevant to corroborate plaintiff's experts' testimony as well as to reveal the type of ignition that took place when plaintiff punctured the can. Further, it would be probative to support plaintiff's contention that, mindful of the danger involved, the manufacturer should have provided a stronger and more visible warning to consumers.


Defendant's motions have been carefully considered and are held to be without merit. Accordingly, the motion for judgment n.o.v. and/or for a new trial will be denied.
Nowak By and Through Nowak v. Faberge U.S.A., Inc.
812 F.Supp. 492