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U.S. District Court, Eastern District of Pennsylvania

This product liability action involved a microwaveable decorative soap-making product which the plaintiff claimed was dangerously defective and resulted in second degree burns to the minor plaintiff. The defendants in the case included the retailer and manufacturer of the product as well as the manufacturer/supplier of the plastic cups which were included with the product. The complaint included counts of negligence, strict liability, breach p 7 3 of warranty and violation of the Oklahoma Consumer Protection Act. The cause of action arose in Oklahoma and Oklahoma law was expected to apply. It was filed in the Eastern District of Pennsylvania under diversity jurisdiction. The defendant manufacturer and retailer were expected to argue that the minor plaintiff was not properly supervised and misused the product by overheating it. The defendant cup manufacturer contended that it was not informed that the cup provided would be placed in microwave ovens.

The plaintiffs contended that in April ________, their 11-year-old daughter was using a "soap-making" product purchased from the defendant retailer and manufactured by the defendant Rose Art Industries, Inc. The product instructed users age "8 and up" to heat soap in plastic cups which were supplied with the kit. Users were instructed to heat the cups in a microwave oven to make decorative soaps.

The minor plaintiff and her friend were using the product at a friend’s home when the plaintiff suffered severe burns to her left leg. The plaintiff claimed that the children were being supervised when boiling soap spilled from a hole which developed in the bottom of the cup supplied. The hole developed after the cup had been placed in the microwave, according to the plaintiff’s claims. The minor plaintiff was left with permanent scarring of the left thigh stemming from the incident.

The plaintiff alleged that the plastic cup manufactured and supplied by the codefendant was not designed to be heated. The plaintiff contended that at least nine other substantially similar incidents had been reported to the defendants between ________ and ________, placing the defendant on notice that the product was dangerously defective.

The plaintiff also claimed that there was evidence that a company in Great Britain had informed the defendant manufacturer that the soap-making product would have difficulty obtaining European approval due to thermal hazards.

The plaintiff’s toy safety expert opined that, 1. The product was poorly designed; 2. There was inadequate safety testing; 3. The instructions were misleading and not likely to be understood by children or adults; 4. The product used inappropriate component products (the plastic cup); 5. There was no accounting for product misuse in the design and instructions; and 6. The product made misrepresentations to consumers, namely that safety testing had been conducted and that the product complied with the American Society of Testing Materials (ASTM)-F-________. In addition, the plaintiff’s expert contended that under the Consumer Product Safety Act, the defendant manufacturer was obligated to implement a voluntary recall of the product, send out warning or take other remedial action once it received notice that burn injuries had occurred.

The product instructed that the soap be heated at half power in a microwave for 20 seconds, stirred and heated again for 20 more seconds. The outside of the package noted "Adult Supervision Recommended." Instructions inside the package indicated "Adult Supervision Required." The defendant cup manufacturer’s industrial consultant testified at deposition that the plastic cup at issue was designed for p 7 3 measuring powdered and liquid contents not exceeding ________ degrees Fahrenheit. Whether it was an applicable cup for use with the soap-making product was something to be determined by the manufacturer through testing, according to the defendant’s expert. There was a dispute in testimony as to whether the codefendant cup manufacturer was verbally informed that the cup suppled would be heated in a microwave oven.

dThe defendant manufacturer/retailer’s expert engineer concluded that the plaintiff’s injury resulted from misuse of the product, specifically overheating in the microwave. The defendant manufacturer’s director of product development, who designed the product, testified at deposition that she tested the product in the microwave in the defendant’s cafeteria and it worked properly.

The case settled just prior to the plaintiff’s scheduled deposition for a total of $________. The defendant manufacturer contractually indemnified the retailer, and those defendants contributed $________ of the settlement. The defendant cup manufacturer contributed the remaining $________.

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