## Facts

- Faberge manufactured and distributed Aqua Net aerosol hair spray containing alcohol and a hydrocarbon propellant (propane or butane), both highly flammable.
- On April 3, 1989, 14-year-old Alison Nowak attempted to use a newly purchased Aqua Net can that sputtered and then stopped spraying.
- Believing product remained, Alison tried to puncture the can to access the contents while near the open flame of a gas stove.
- The escaping contents ignited and engulfed Alison, causing severe burns.
- The can displayed prominent promotional text on the front; flammability and “do not puncture” warnings appeared on the back in smaller type.
- Alison testified she recalled the prominent marketing text but did not recall noticing the warnings and suggested she may have read a more prominent warning.

## Issues

1. Whether the evidence supported strict products-liability findings under Pennsylvania law that (a) the can’s valve system was defective under the malfunction theory and (b) the warnings were inadequate.
2. Whether the alleged defects were a proximate cause of Alison Nowak’s injuries.
3. Whether the trial court erred, under Pennsylvania strict-liability doctrine, by not making an explicit on-the-record defect determination before submitting the case to the jury.
4. Whether Faberge was entitled to judgment as a matter of law or a new trial based on asserted evidentiary and trial errors.

## Decision

- A jury found for Alison Nowak and against Faberge on two theories: defective valve system (malfunction theory) and failure to warn; it rejected a design-defect claim regarding the formulation.
- The jury awarded $1,500,000 in damages and found the defects to be the proximate cause of the injuries.
- The district court denied Faberge’s post-trial motions for judgment as a matter of law and for a new trial.
- The Third Circuit affirmed, holding that the trial court’s required threshold defect determination could be satisfied implicitly by submitting the case to the jury, and that Faberge bore the burden to request an explicit ruling if desired.

## Legal Principles

- Under Pennsylvania strict liability, a plaintiff may prove a defect through the malfunction theory by showing a product malfunction plus circumstantial evidence eliminating abnormal use and reasonable secondary causes.
- Warning adequacy may turn on prominence and placement as well as wording; comparatively inconspicuous warnings can support liability where the risk is severe and use by minors is foreseeable.
- In Pennsylvania strict liability, the judge must make a threshold determination that the product is defective for purposes of submission to the jury; that determination need not be expressly stated and may be implicit in allowing the case to proceed to the jury.
- A party seeking an express threshold ruling must timely request it; failure to do so weakens a later claim of reversible error.

## Conclusion

The Third Circuit upheld a strict-liability verdict against Faberge where the jury could infer a defective aerosol valve under the malfunction theory and find the product’s warnings inadequate in prominence, and it ruled that the trial judge’s required defect gatekeeping determination may be implicit when the case is submitted to the jury absent a request for an explicit ruling.


Nowak v. Faberge U.S.A., Inc., 32 F.3d 755 (3d Cir. 1994)