November 09, 2021

A Bridge Too Far: Reliance on Malfunction Theory Rejected When the Alleged Failure is a Known Risk of the Product

Faegre Drinker on Products Blog

In some circumstances, a plaintiff lacking direct evidence of an identifiable, specific defect may be permitted to use circumstantial evidence to prove that a product malfunctioned and create a triable inference of a product defect. Some courts may treat proof of a product malfunction as circumstantial evidence of a product defect because a product will not ordinarily malfunction (or perform outside the reasonable safety expectation of the consumer) in the absence of a defect. This circumstantial evidence doctrine, commonly known as the “malfunction theory,” may provide plaintiffs with a pathway to establish a prima facie case of a product defect.

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