### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

2-4-1998 

# P a v li k v . L a ne L t d/T

ob a cco

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-1121,97-1199

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" P a v l i k v . L a ne Lt d/T

o b a c c o " (1998). 1998 D e cisio n s

. P a pe r 24.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/24Filed February 4, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 97-1121 and 97-1199

GEORGE PAVLIK, Administrator of the Estate of
STEPHEN MICHAEL PAVLIK; GEORGE PAVLIK, in His Own Right

v.

LANE LIMITED/TOBACCO EXPORTERS INTERNATIONAL, Third-Party Plaintiff

v.

KEEN (WORLD MARKETING) LIMITED; GEORGE PAVLIK; REGINA PAVLIK, h/w, Third-Party Defendants

George Pavlik, Administrator of the Estate of Michael Pavlik and George Pavlik, in his own right, Appellant in No. 97-1121 (D.C. Civ. No. 95-cv-04582)

GEORGE PAVLIK, Administrator of the Estate of STEPHEN MICHAEL PAVLIK, in his own right, Appellant in No. 97-1199

v.

KEEN (WORLD MARKETING) LIMITED (D.C. Civ. No. 96-cv-02221)

On Appeal From the United States District Court For the Eastern District of PennsylvaniaArgued: September 22, 1997

Before: BECKER, Chief Judge,* SCIRICA, and McKEE, Circuit Judges.

(Filed February 4, 1998)

JOANNE W. RATHGEBER, ESQUIRE (ARGUED) Rathgeber & Associates

111 East Court Street Doylestown, PA 18901 Attorney for Appellant George Pavlik

DENNIS L. PLATT, ESQUIRE (ARGUED)
JENNIFER S. BRESLIN, ESQUIRE Sweeney & Sheehan, P.C.

1515 Market Street

Three Penn Center Plaza Philadelphia, PA 19102 Attorneys for Appellee Lane Limited/ Tobacco Exporters International

JEFFREY N. GERMAN, ESQUIRE (ARGUED) German, Gallagher & Murtagh 200 South Broad Street, Suite 500 Philadelphia, PA 19102 Attorney for Appellee, Keen (World Marketing) Limited

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal in a strict product liability cas e brought by plaintiff George Pavlik, administrator of the es tate of Stephen Pavlik, a 20 year old man who died as the r esult

___________________________________________________ ______________

*Judge Becker became Chief Judge as of February 1, 1998.

2of self-administered butane inhalation. The distric t court

granted summary judgment in favor of the defendants
, Keen (World Marketing) Ltd. ("Keen") and Lane Limited/Tobacco Exporters International ("Lane"), t he manufacturer and distributor respectively of "Zeus" brand butane fuel, the product that was close-at-hand whe n Stephen collapsed, and which plaintiff alleges to b e the cause of Stephen's death. The butane was sold in 5. 3 ounce cans, primarily as fuel for cigarette lighters. The only relevant warning, printed on the back panel of the can, reads "DO NOT BREATHE SPRAY". The gravamen of the plaintiff's claim is that the Zeus brand can is def ective because this warning inadequately warns potential u sers like Stephen Pavlik of the extreme hazards of butan e inhalation.

The district court held that the plaintiff's failur e to warn claim fails for two reasons. First, the court deter mined that there was insufficient evidence in the record to pr ove that Stephen actually inhaled from the Zeus can on the n ight of his death, as opposed to the "Clipper" brand butane cans subsequently found buried in his bureau drawer. Alternatively, the court concluded that Stephen was already aware of the dangers of serious bodily injury assoc iated with inhaling butane, and that a more specific warn ing
would not have affected his conduct. The court reas oned that the alleged inadequate warning was therefore n ot the proximate cause of Stephen's injury. The court base d this latter conclusion primarily on the fact that Stephe n had also purchased and used cans of Clipper brand butan e and therefore was presumed to have had notice of Clippe r's more detailed warning.

We believe that both of these conclusions are flawe d. First, there is scientific evidence in the record t hat the onset of Stephen's ultimately fatal reaction to the butane fumes could have been quite sudden, which, combined with evidence that only the Zeus can was in close proxim ity to him at the time the injury occurred, would permit a jury to infer that Stephen had in fact inhaled from the Zeu s can. Second, we conclude that plaintiff has raised genui ne issues of material fact on the defendant's proximat e cause challenge.

3Under Petree v. Victor Fluid Power, Inc., 831 F.2d 1191

(3d Cir. 1987), to succeed in their causation defen se, defendants must demonstrate that Stephen was fully aware of the risk of bodily injury posed by Zeus butane p rior to the accident. Plaintiff, however, has successfully
undermined defendants' claim that the text of the Z eus and Clipper warnings provided sufficient notice to brea k the causal chain, and he has identified genuine issues of fact concerning alleged warnings given by Stephen's moth er, the other evidence on which defendants' rely. In the ab sence of direct evidence about Stephen's knowledge of the se rious consequences of butane inhalation, and given the inconclusiveness of what Stephen's mother is purpor ted to have told him, there is a genuine issue of material fact on the causation issue, and hence we will reverse and remand with respect to the product liability claim.

We do, however, affirm the district court's grant o f summary judgment on plaintiff's intentional inflict ion of emotional distress claim. We agree with the distric t court
that there is insufficient evidence in the record t o support
a conclusion that defendants' conduct in this matte r has been extreme and outrageous, the standard under Pennsylvania law for establishing that tort.

I. Background Facts and Procedural History

On April 10, 1994, at about 2:30 a.m., plaintiff Ge orge Pavlik was asleep on his sofa when he was awakened by the sound of his twenty-year-old son, Stephen, arri ving home after having spent the evening with his sister and friends. Shortly thereafter, Mr. Pavlik heard a lou d"thud" coming from an upstairs room. When he investigated this unusual sound, Pavlik found Stephen lying on theflo or of his bedroom, gasping for breath. Pavlik immediately called the police and began to perform CPR. Paramedics soo n arrived and unsuccessfully attempted to revive Step hen. He was pronounced dead later that morning.

The coroner listed the cause of Stephen's death as cardiac dysrhythmia complicating abusive hydrocarbo n inhalation. It is uncontroverted that this was the result of Stephen's intentional inhalation of butane gas. At the time

4of his death, a canister of Zeus brand butane was f ound

atop Stephen's bedroom bureau. Warning language on the

front of the Zeus can reads:

DANGER

CONTENTS EXTREMELY FLAMMABLE

READ CAREFULLY OTHER CAUTIONS ON THE BACK

PANEL

The warning label on the back panel of the can read s:

PRESSURIZED CONTAINER:

PROTECT FROM SUNLIGHT AND DO NOT EXPOSE TO
TEMPERATURE EXCEEDING 120F. DO NOT PIERCE
OR BURN, EVEN AFTER USE. DO NOT SPRAY ON A

NAKED FLAME OR ANY INCANDESCENT MATERIAL.

DO NOT USE NEAR FIRE OR FLAME OR WHILST

SMOKING.

DO NOT BREATHE SPRAY

KEEP OUT OF REACH OF CHILDREN

Shortly after Stephen's death, Mr. and Mrs. Pavlik searched
their son's room and found seven more cans of butan e hidden under Stephen's underwear in a drawer of the bureau. Five of these cans were Zeus brand butane, and the other two bore the Clipper brand name. The back panel of the Clipper can warns:

CAUTION:

PRESSURIZED CONTAINER. PROTECT FROM

SUNLIGHT AND DO NOT EXPOSE TEMPERATURE EXCEEDING 50C. DO NOT PIERCE OR BURN, EVEN

AFTER USE. DO NOT SPRAY ONTO A NAKED FLAME

OR ANY INCANDESCENT MATERIAL.

USE ONLY DIRECT FILLING

AEROSOL PRODUCT
UN 1950

LIGHTER REFILL

CONTAINS BUTANE

FLAMMABLE KEEP AWAY FROM SOURCES OF

IGNITION-NO SMOKING.

KEEP OUT OF REACH OF CHILDREN DELIBERATELY

INHALING THE CONTENTS MAY BE HARMFUL OR

EVEN FATAL.

5In contrast to the Zeus can, the Clipper front pane l

contains no additional warning or language directin g the user to consult the back panel.

Plaintiff filed the present lawsuit against Lane, t he United States distributor of Zeus brand butane, alleging s trict product liability for failure to warn and intention al infliction of emotional distress. Lane joined Keen as a third- party defendant. The manufacturer of Clipper brand butane is not a party to this lawsuit.

Following discovery, defendants moved for summary judgment. According to the defendants, Stephen's al legedly fatal inhalation was not his first attempt at inhal ing butane. Rather, they characterize Stephen's conduct as an attempt to "get high" in deliberate disregard of al l warnings. They contend that, on at least two prior occasions, Stephen had been caught in the act by his mother, and that on both
occasions she had warned him that his abuse of buta ne was dangerous. Additionally, they contend that Mrs. Pavlik had threatened Stephen in 1992 that he would be thr own out of the family home if he continued his butane a buse. Accordingly, defendants argued that plaintiff could not establish that the alleged inadequate warning was t he cause-in-fact and proximate cause of Stephen's deat h.
Defendants further claimed that their conduct in al legedly failing to provide an adequate warning was not suff iciently extreme and outrageous to permit recovery for inten tional
infliction of emotional distress.

The district court granted the summary judgment mot ion
on both counts. Plaintiff's motion for reconsiderat ion was denied, and this timely appeal followed. The distri ct court had jurisdiction under 28 U.S.C. S 1332. We have ap pellate jurisdiction over a final order of the district cou rt pursuant to 28 U.S.C. S 1291. We set forth our familiar plen ary standard of review of a grant of summary judgment i n the margin.1 We explain the facts bearing on the presen t motion in greater detail infra.

___________________________________________________ ______________

1. See Knabe v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997) (noting plenary standard of review). The motion sho uld be granted if "the pleadings, depositions, answers to interrogatories, and admissions on

6II. The Failure to Warn Claim

A. Section 402A

The Pennsylvania Supreme Court, whose law we are bound to follow as a court exercising diversity jur isdiction, has adopted S 402A of the Restatement (Second) of T orts, which imposes strict liability on the purveyor of a product in a defective condition "unreasonably dangerous to the user or consumer." See Webb v. Zern, 220 A.2d 853 ( Pa. 1966). Under S 402A, an otherwise properly designed product may still be unreasonably dangerous (and th erefore "defective") for strict liability purposes if the p roduct is distributed without sufficient warnings to apprise the ultimate user of the latent dangers in the product. See Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997 ).

To recover under S 402A, a plaintiff must establish : (1) that the product was defective; (2) that the defect was a proximate cause of the plaintiff's injuries; and (3 ) that the defect causing the injury existed at the time the p roduct left the seller's hands. See id. (citing Berkebile v. Br antly Helicopter Corp., 337 A.2d 893, 899 (Pa. 1975)). In the context of a failure to warn case, to satisfy the s econd prong, the plaintiff must establish that it was the total lack or insufficiency of a warning that was both a cause -in-fact and the proximate cause of the injuries. See Greine r v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976); Conti v. Ford Motor Co., 743 F.2d 195, 197 ( 3d Cir. 1984). While the question of causation in Pennsylva nia is normally for the jury, "if the relevant facts are n ot in dispute and the remoteness of the causal connection between the defendant's negligence and the plaintif f's

___________________________________________________ ______________

file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) . The non-moving party
must adduce evidence "sufficient to establish the e xistence of [every] element essential to that party's case, and on whic h that party will bear the burden of proof at trial." Celotex Corp. v. Cat rett, 477 U.S. 317, 322 (1986). In evaluating the sufficiency of this evide nce, we must grant all
reasonable inferences from the evidence to the non- moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

7injury clearly appears, the question becomes one of law."

Conti, 743 F.2d at 197-98 (quoting Liney v. Chestnu t Motors, Inc., 218 A.2d 336, 338 (Pa. 1966)).

To reach a jury on a failure to warn theory of liab ility, the evidence must be such as to support a reasonable inference, rather than a guess, that the existence of an adequate warning might have prevented the injury. S ee id. at 197. As we develop infra, the plaintiff enjoys t he benefit of a rebuttable presumption that an adequate warnin g would have been heeded if it had been provided; how ever, one way the defendant can rebut this presumption is by demonstrating that the plaintiff was previously ful ly aware of the risk of bodily injury posed by the product. The district court agreed with defendants that such a p rior
awareness did exist in this case and that there was insufficient evidence in the record to support a re asonable inference that an adequate warning on the Zeus can might have prevented Stephen Pavlik's death. Additionally , the court held that plaintiff's S 402A claim fails for lack of
causation because there was insufficient evidence demonstrating that Stephen even inhaled from the Ze us can on the morning of April 10, 1994. We consider b oth arguments below.

B. Did Stephen Inhale from the Zeus Can?

The district court held that summary judgment was appropriate because a jury would have to speculate that it was the Zeus can (as opposed to a Clipper can) from which Stephen inhaled on the night of his death. The cour t found that the only evidence in the record indicating tha t Stephen
inhaled Zeus butane was the fact that a Zeus can wa s found on his bureau, while all the Clipper cans (pl us other Zeus cans) were found buried in his bureau drawer, and that this alone was insufficient to create a genuin e jury question. We disagree.

Plaintiff points out that the onset of Stephen Pavl ik's fatal reaction had to have been sudden, and thus it was m ore likely than not that he would neither have had the time nor the wherewithal to bury the can that he actually ha d used in his bureau drawer. Thus, plaintiff reasons that Stephen must have inhaled from the Zeus can. As noted supra , we

8must grant all reasonable inferences from the evide nce in

favor of the non-moving party; moreover there is ev idence in the record that buttresses plaintiff's claim. Fo r example, an article attached to the affidavit of Earl Siegel , Pharm.D., describes the potential for "sudden sniffing death" caused by butane abuse.2 See App. at 359-60. In addition, the report prepared by Thomas J. Wallace, Ph.D., states that "[d]efendants are well aware of the negative conseq uences of Butane abuse and the fact that it can cause inst ant death." App. at 353. Although this evidence might n ot persuade a jury that Stephen's death was caused by the Zeus can, the inference plaintiff would have us dra w is both logical and reasonable. One could reasonably (and e asily) infer from these reports that it is more likely tha n not that it was the nearby Zeus can that triggered Stephen's death. Therefore, the district court should not have grant ed summary judgment on this ground.

C. Would a Better Zeus Warning Have Deterred Stephe n Pavlik?

The defendants' second argument in support of a gra nt of summary judgment in their favor is considerably mor e complicated. They contend (and the district court f ound)
that there was insufficient evidence in the record to support a reasonable inference that a different warning on the Zeus canister would have led Stephen Pavlik to act diffe rently. According to the defendants, Stephen had been previ ously warned of the dangers of butane inhalation from thr ee

___________________________________________________ ______________

2. In his brief to this court, plaintiff also cites a January 13, 1997,

letterreport by Dr. Siegel which states that inhalation o f butane can cause death "within minutes". Appendix at 357. However, t his document was
not in the record when the district court decided t he defendant's summary judgment motion. Plaintiff did attach the l etter to his motion for reconsideration in the district court, but unde r our rule in Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985 ), when evidence is not newly discovered, a party may not submit that evide nce in support of a motion to reconsider a grant of summary judgment. S ince Dr. Siegel's testimony was available (indeed, he even provided a n affidavit which was attached as an exhibit) prior to the filing of the plaintiff's original

answer to the defendant's summary judgment motion, the Jan uary 13 letter
should not have been considered in the motion for r econsideration and
will not be considered here.

9sources: (1) the warning on the Zeus can; (2) the w arning

on the Clipper can; and (3) his mother. Based on th ese combined warnings, the defendants contend that Step hen was already aware of the dangers associated with bu tane
inhalation when he decided to inhale the contents o f the Zeus can on the night of his death. The district co urt agreed and held that, even assuming that the Zeus w arning was inadequate, there was no evidence in the record that an adequate warning would have had any deterrent va lue.

In support of their claim, the defendants rely on C onti, supra; Overpeck v. Chicago Pneumatic Tool Co., 634 F. Supp. 638 (E.D. Pa. 1986), aff'd, 823 F.2d 751 (3d Cir. 1987); and Powell v. J.T. Posey Co., 766 F.2d 131 ( 3d Cir. 1985). In all three of these cases, we concluded th at the allegedly defective lack of an adequate warning cou ld not have proximately caused the victim's injuries. In C onti and Overpeck, there was evidence in the record that the victim was already aware of the complained of danger prior to the time of the injury. In Powell, while the victim was not aware of the specific danger at issue prior to her injury , there was no evidence in the record that she would have chang ed her course of conduct had she been provided with the wa rning she sought, and, in fact, there was evidence specif ically suggesting the contrary. The defendants nonetheless submit that the facts here compel the same conclusi on we reached in Conti, Overpeck and Powell.

1. Proximate Cause in Failure to Warn Cases

Our precedents in this area of the law teach that, in a failure to warn case, we focus our causation analys is on the additional precautions that might have been taken b y the end user had the allegedly defective warning been d ifferent. See Powell, 766 F.2d at 135. This analysis requires the fact finder at trial or a court on summary judgment to"c onsider not only what did occur, but also what might have o ccurred . . . . Such a determination as to what might have happened necessarily requires a weighing of probabilities." Remy v. Michael D's Carpet Outlets, 571 A.2d 446, 449-50 (P a. Super. Ct. 1990) (citing Hamil v. Bashline, 392 A.2 d 1280, 1286-87 (Pa. 1978)) (emphasis in original), aff'd s ub nom. Kimco Dev. Corp. v. Michael D's Carpet Outlets, 637 A.2d 603 (Pa. 1993).

10Comment j to S 402A is directed in part to this wei ghing

process, providing that "[w]here a warning is given , the seller may reasonably assume that it will be read a nd heeded." Generally speaking, comment j sets forth a presumption that works in favor of the manufacturer or seller of a product where an adequate warning has b een provided.3 See Coffman v. Keene Corp., 608 A.2d 416 , 421 (N.J. Super. Ct. App. Div. 1992) ("Coffman I"), aff 'd, 628 A.2d 710 (N.J. 1993) ("Coffman II"); Technical Chem ical Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972). From th is, it follows logically that the law should also presume that, when no warning or an inadequate warning is provide d, the end-user would have read and heeded an adequate war ning had one been given by the manufacturer. See Coffman I, 608 A.2d at 421 (collecting cases following this lo gic); Wolfe v. Ford Motor Co., 376 N.E.2d 143, 147 (Mass. App. Ct. 1978) (holding that the failure to give an adequate warning "permits the inference that it would have alerted t he user to the danger and forestalled the accident."); but cf. Coffman II, 628 A.2d at 717-18 (extension of comment j base d more on public policy than logic). Indeed, many jurisdic tions have construed comment j to provide just such a presumption, referred to generally as the "heeding presumption". See Coffman II, 628 A.2d at 720 (coll ecting cases); Allan E. Korpela, Annotation, Failure to Wa rn as Basis of Liability Under Doctrine of Strict Liabili ty in Tort, 53 A.L.R.3d 239 (1974). This presumption assists the f ailure to warn plaintiff in satisfying his burden of showing proximate cause. See Coffman II, 628 A.2d at 719.

While comment j has been adopted in Pennsylvania, s ee Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971), to da te the Pennsylvania Supreme Court has not expressly decide d whether the heeding presumption would apply under Pennsylvania's interpretation of S 402A. On two pri or occasions we have discussed this question without

___________________________________________________ ______________

3. It should be noted, however, that the comment j presumption will not apply in those cases in which it is alleged that th e warning provided, while substantively adequate, suffers from communic ative deficiencies (e.g. small or otherwise illegible type) and is thu s unlikely to convey
its danger message to the user. We discuss this aspect of comment j infra at pages 18-19.

11predicting how the Court would rule, see Petree, 83 1 F.2d

at 1196 n.2, Overpeck, 823 F.2d at 756 & n.4; in th ose cases, we found that even if the heeding presumptio n existed, the defendants would have successfully reb utted it.

We now predict that Pennsylvania would adopt a rebuttable heeding presumption as a logical corolla ry to comment j. Since the very idea of imposing strict l iability for the failure to warn is premised on the belief t hat the presence or absence of an adequate warning label wi ll affect the conduct of a product user, it would be illogica l, and contrary to the basic policy of S 402A, to accept t hat a product sold without an adequate warning is in a "d efective condition", see Incollingo, while simultaneously re jecting the presumption that the user would have heeded the war ning had it been given. Indeed, in its most recent (albe it limited) discussion of comment j, the Pennsylvania Supreme C ourt stated plainly that "the law presumes that warnings will be obeyed." Davis, 690 A.2d at 190. We predict, theref ore, that Pennsylvania would agree that "[c]omment j provides ample support for application of the rebuttable `heeding' presumption . . . to assist a plaintiff in proving the absence of a warning proximately caused harm." Coffman, 608 A.2d

at 422.

While the heeding presumption benefits a failure to warn plaintiff, it does not change the fact that he stil l bears the burden of persuasion on the causation prong of his S 402A claim. Accordingly, as we recognized in Petree and Overpeck, the heeding presumption must be rebuttabl e, and thus "[w]hen the opponent of the presumption ha s met the burden of production thus imposed . . . the off ice of the presumption has been performed; the presumption is of no further effect and drops from the case." Overpeck, 823 F.2d at 756 (citing Commonwealth v. Vogel, 268 A.2d 89 ( Pa. 1970)). To get past the presumption and to a jury, the opponent of the presumption need only introduce evi dence "sufficient to support a finding contrary to the pr esumed fact." See McCormick on Evidence S 344 (3d ed. 1984 ).

Applied to the present case, this means that if Lan e and Keen can introduce evidence sufficient to support a finding that Stephen Pavlik was "fully aware of the risk of bodily injury, or the extent to which [his] conduct could contribute

12to that risk, so as to be legally chargeable with t he

consequences," see Petree, 831 F.2d at 1196, then t he presumption would be successfully rebutted and the burden of production would shift back to Pavlik to come forward with evidence demonstrating that an adequat e warning would have changed Stephen's behavior. At t hat point, "only the facts or actual evidence from whic h the presumption arose remain, free from any artificial effect, to be considered along with other evidence." See Lynn v. Cepurneek, 508 A.2d 308, 312 (Pa. Super. Ct. 1986) (discussing general law of presumptions in Pennsylv ania); 9 Wigmore on Evidence S 2487; cf. Overpeck, 823 F.2d at 756 & n.3 (Where "an inference that a warning would hav e reminded a user of a known danger is unsupported by independent evidence, such an inference is impermis sible as mere jury speculation.").

To prevail on summary judgment, however, defendants must satisfy a more substantial burden. While they need only produce evidence sufficient to support afindin g contrary to the presumed fact to rebut the presumpt ion at trial, see supra, to satisfy Rule 56 the record mus t show
that a reasonable fact finder would be bound tofind that Stephen Pavlik was fully aware of the risk of bodil y injury; otherwise, we are presented with a genuine issue of fact for the jury. With this standard in mind, we turn now t o determine whether the evidence cited by the defenda nts is sufficient to establish (to the extent just describ ed) that Stephen Pavlik was fully aware of the risk of bodil y injury posed by butane inhalation prior to his accident.

2. Mrs. Pavlik's Warnings

There is evidence in the record indicating that Ste phen Pavlik's mother, who passed away approximately one year after Stephen's death, knew that her son had inhale d butane on at least two prior occasions, once in 199 2 and again in 1994. The coroner's certificate of identif ication, for example, states that Mrs. Pavlik had caught Stephen inhaling butane about two years before his death, t hough she believed that he had since stopped. App. at 290

. Stephen's sister, Theresa, also testified that Mrs. Pavlik had caught Stephen "doing something that's not right" w ith two cans of butane sometime in 1992, and that Mrs. Pavl ik had

13told Stephen that if he continued, he would be thro wn out

of the house. App. at 302-04.

In addition, Denise Johnson, a friend of Stephen's,
testified that Mrs. Pavlik had informed her that sh e had caught Stephen inhaling butane:

A: . . . after Stephen's death, she had tol d me that he had used it previously.
Q: Who's the "she"?
A: Mrs. Pavlik.

. . . Q: Was the topic of the use of the butane d iscussed [between you and Mrs. Pavlik] a lot? A: No, not a lot, no. A couple times, but n ot a lot.

. . . Q: Did Mrs. Pavlik indicate exactly what sh e said to, like her son when she caught him? A: I believe she did, but I can't remember exact words. You know, it was a really long time ago. Q: Do you remember any words to the effect that, "The stuff 's dangerous"? A: Of course, yes.

Supplemental Appendix at 75b-77b.4 It is this state ment upon which the defendants rely to show that Mrs. Pa vlik had warned Stephen of the dangers of butane inhalat ion.

This evidence, however, is not uncontroverted. Ther esa Pavlik consistently testified that Mrs. Pavlik did not know specifically what Stephen was doing with the cans o f butane when the alleged 1992 incident occurred:

Q: Did your mother ever ask you what is your brother doing with these cans?

A: Not that I remember. Q: Did your mother ever indicate that she fo und out what your brother was doing with these ca ns? A: Specifically, no. Q: Did your mother say, "I think he was inha ling or

___________________________________________________ ______________

4. It is unclear from the briefs and the deposition transcripts in the record to which of the two (or possibly other) occa sions noted above Denise Johnson's testimony refers.

14ingesting this material?"

A: No sir, not that I remember. Q: Wasn't there any conversation between you and your mother as to what your brother was d oing
with this material? A: Yes sir, there was. She was not sure exac tly what it was that he was doing with them. She j ust had a feeling that it just was not right, wha tever it was he was doing with it. Q: And did you indicate or did you suggest a nything as to what he may be doing with this mate rial?

A: Not that I remember.

App. at 304-05. As for the second incident, in 1994
, Theresa Pavlik testified that neither she nor her m other specifically confronted Stephen about butane inhala tion at
that time:

Q: When you spoke to your mother in January of`94, did she indicate that this was only the s econd time she ever heard this laughing, the first t ime being

about -- A: Yes, sir. Q: -- a year and a couple months earlier? A: Yes, sir.

. . . Q: Did she indicate that she spoke to her so n again? A: No, sir, not that I remember.

App. 307-08.

It is tempting to superimpose upon the record our o wn street-wise assumption that everyone knows the dang ers (and warning signs) of butane abuse. But, as judges , we cannot do so. Since we must decide whether Stephen Pavlik was fully aware of the danger of bodily harm posed by butane inhalation, and since there may be degrees o f apprehension of danger with respect to the seriousn ess of harm, viewing this evidence in the light most favor able to the plaintiffs, we cannot agree with defendants tha t it is beyond dispute that Mrs. Pavlik's warning was suffi cient to break the causal chain. The jury may well find for defendants, but it is a question for the jury.

15First of all, while it appears that Mrs. Pavlik gav e some

warning to Stephen, it is uncertain what the conten t of that warning was. Next, since the content of Mrs. Pavlik 's warning is unclear, we cannot conclusively determin e whether it was adequate to put Stephen on notice of the full extent of the risk of bodily injury, see Petre e, supra, posed by butane inhalation. Indeed, there is also a genuine
issue of material fact whether Mrs. Pavlik even kne w what Stephen was doing with the butane cans -- and hence whether she was even capable of providing Stephen w ith sufficient knowledge of the danger at issue.

Theresa Pavlik's testimony that Mrs. Pavlik had sai d "the stuff's dangerous," is an insufficient basis for us to decide as a matter of law that Stephen was sufficiently wa rned of the danger at issue prior to his fatal inhalation, and therefore that the heeding presumption has been reb utted. This statement provides no more information than th e warning on the Zeus can that a user should not "bre athe spray." Indeed, it may actually provide less inform ation,
since Mrs. Pavlik's admonition does not relate what exactly about the butane is dangerous and/or what uses of t he product would be dangerous. Below we consider wheth er a different result is commanded when we consider this evidence in conjunction with the warnings on the Cl ipper

and Zeus cans.

3. The Clipper and Zeus Warnings

The defendants also argue that Stephen had the type of adequate prior knowledge of the danger at hand that we found in Conti and Overpeck, supra, because he had read the warnings on the Clipper and Zeus cans prior to his fatal inhalation. As we have noted throughout, to fall wi thin the scope of these cases, the record must demonstrate t hat Stephen was fully aware of the risk of bodily injur y posed by butane inhalation. See Petree, supra . We deal f irst with the Zeus warning. As a matter of basic logic, the defendants' argument that Stephen read the Zeus lab el and therefore a more detailed warning would not have al tered his course of conduct is not really a claim about c ausation at all, but is a claim about the ultimate issue in this case -- the adequacy of the existing Zeus warning under S 402A.

16The initial determination of whether a warning is

adequate in Pennsylvania is a matter of law. See No wak v. Faberge USA, Inc., 32 F.3d 755, 757 (3d Cir. 1994), aff'g, 812 F. Supp. 492 (M.D. Pa. 1992); Davis, supra. Sin ce, as we develop below, we discern a genuine issue of mat erial fact regarding the adequacy of the Clipper warning, and since we believe that Clipper more adequately warns of the danger of using butane as an inhalant than does the Zeus can, we cannot conclude that Stephen's awareness of the Zeus label provides a reason for finding no causati on. To the contrary, based on the present record, we have serious doubts that the Zeus warning sufficiently warns use rs of the potentially fatal consequences of butane inhala tion, and we are not convinced of its adequacy under S 402A. More specifically, the "DO NOT BREATHE SPRAY" warning appears to give the user no notice of the serious n ature of the danger posed by inhalation, intentional or othe rwise, and no other language on the Zeus can does so. Yet, we similarly cannot find that such a directive is inad equate as a matter of law, and so we must leave the question for the jury.5

The present case does not, however, present the typ ical manner in which the adequacy of a warning becomes a n issue. Normally, it is only the warning on the defe ndant's product -- here, Zeus brand butane -- whose adequac y courts are called upon to consider. The twist in th is case is
that the defendants and the district court have als o made the adequacy of the Clipper warning a central issue by virtue of their proximate cause analysis. While the district court did not make a formal finding regarding the l egal adequacy of the Clipper warning, it is apparent tha t its proximate cause analysis incorporated a belief that the Clipper warning would itself be adequate for S 402A

purposes.

The Clipper warning states, in small capital letter s on the back panel of the can, "Deliberately inhaling the c ontents

___________________________________________________ ______________

5. We make clear, however, that this conclusion pre supposes that the district court will first engage in the necessary A zzarello analysis. See Nowak, 32 F.3d at 757 (citing Azzarello v. Black Br os. Co., 391 A.2d 1020, 1025-27 (Pa. 1978).

17may be harmful or even fatal."6 The district court presumed

that Stephen Pavlik had read this warning because S tephen had "apparently inhaled" Clipper brand butane at so me point. The basis for this inference is the fact tha t several Clipper cans were found in Stephen's bureau drawer. Since we must draw all inferences in favor of plaintiff, the nonmoving party, it cannot be conclusively determined that Stephen inhaled Clipper butane from that fact alone . We agree, however, that it is reasonable to infer that Stephen had previously used the Clipper product in some man ner or other.

As we have explained, it is normally presumed, purs uant to comment j, that when an individual uses a produc t he or she has read and heeded any warning labels attached to that product. However, there is an exception to thi s presumption, implicit in cases that hold that the v ictim's actual failure to read a warning label does not nec essarily bar recovery "where the plaintiff is challenging th e adequacy of the efforts of the manufacturer to comm unicate the dangers of the product to the buyer or user." N owak, supra, 812 F. Supp. at 498; see also Baldino v. Cas tagna, 478 A.2d 807, 810 (Pa. 1984) (holding that drug manufacturer can breach duty of reasonable care by promoting product in such a way as to nullify print ed warnings). That is, in cases where the alleged fail ure to warn is based on claims that a warning was given bu t was, for example, printed in small or unreadable type, t he comment j presumption should not apply so as to com pel
a verdict for the defendant. This is because manufa cturers cannot rely upon a presumption that the victim read a warning to shield themselves from liability for war nings that are inadequate precisely because they are not presented in a manner sufficient to attract the use r's
attention. See id.

In the present case, the inadequacies of the Clippe r warning alleged by plaintiff are both substantive ( i.e. the warning does not adequately describe the danger pos ed) and communicative (i.e. the warning does not comman d the attention of the user). To demonstrate the problems with

___________________________________________________ ______________

6. The full text of the Clipper warning label is se t forth in Part I,

supra.

18the Clipper warning, plaintiff primarily relies upo n a report

by E. Patrick McGuire, who is offered as a warnings expert. McGuire concludes that the Clipper warning is defec tive for the following reasons:

1) The inhalant danger is not listed on the front panel of the can, despite the fact that this is on e of the "primary biological hazards associated with the foreseeable use of this product"; 2) The warning fails to specifically warn of the dangers of concentrating the product -- i.e. the prohibitions about breathing the "contents" of the can are misleading such that some readers "w ill interpret this admonition to mean that a har mful dosage level is only reached if the entire c an is inhaled"; 3) The warning is set in conditional languag e, as opposed to stating that inhalation is "likel y" to produce a fatal reaction.

App. at 329. McGuire's opinion raises genuine issue s of fact about the adequacy of the Clipper warning. On a substantive level, we can reasonably infer from McG uire's second and third critiques set forth above that eve n if Stephen Pavlik had read the Clipper warning, he wou ld not have adequately been fully warned of the danger of bodily harm posed by butane inhalation.

But even if the warning was substantively sound, th at might not be enough, for the case law suggests that factors such as the placement and size of warning labels sh ould also be considered. The opinion of the district cou rt in Nowak, supra, surveyed the cases discussing these f actors
and found that:

A manufacturer may be liable for failure to adequately warn where its warning is not prominent, and not
calculated to attract the user's attention t o the true nature of the danger due to its position, si ze, or coloring of its lettering. A warning may be found to be inadequate if its size or print is too small or inappropriately located on the product. The warning
must be sufficient to catch the attention of persons who could be expected to use the product, to apprise

19them of its dangers, and to advise them of t he

measures to take to avoid these dangers.

Nowak, 812 F. Supp. at 497 (citations omitted). Alt hough our opinion on appeal in Nowak affirmed the verdict and judgment of the district court, see Nowak, 32 F.3d at 759, we did not expressly adopt this portion of the dist rict court's analysis. We do so here.

Following Nowak, we could also conclude from McGuir e's testimony that the Clipper warning was insufficient to "catch the attention" of Stephen Pavlik. As McGuire noted in his report, the Clipper warning is listed on the back panel of the can. It is printed in relatively small type, of the same font, color, and size as the instructions for use. Indeed, we note that against the bright yellow labe l background, the non-highlighted, black text of the warning, in which the admonitions about avoiding extreme temperatures, flammability, and keeping the product away from children, run directly into the warning about inhalation, may appear as a blur to the average use r.

Thus, drawing all inferences from the record in pla intiff's favor, we find that there is a genuine issue of mat erial fact whether the Clipper warning was sufficient to catch Stephen Pavlik's attention and, by its terms, rende r an additional warning on the Zeus can unnecessary. We reach this conclusion regardless of whether we can apply comment j and presume that Stephen read the warning (in which case plaintiff 's expert testimony suggests t hat it is substantively deficient), or whether the exception discussed supra applies (in which case plaintiff has introduc ed sufficient evidence of communicative inadequacies t o raise a question for the jury).

The defendants have pointed to no specific evidence in the record that would render the Clipper warning su fficient to defeat causation. Instead, defendants argue in t heir briefs that Stephen Pavlik "deliberately disregarde d" the Clipper and Zeus warnings "in an attempt to misuse a product for the sole purpose of getting high." Whil e a jury could certainly find the Clipper warning adequate a nd reach this conclusion, the defendants do not cite t o evidence in the record demonstrating that a reasona ble jury

20could not find otherwise. Although we have thus far

considered defendants' evidence of the three possib le sources of Stephen's prior knowledge separately, we make clear that even considering the evidence of the Cli pper warning in conjunction with the evidence of Mrs. Pa vlik's alleged warnings and the (otherwise inadequate) Zeu s warning, we are not persuaded that the defendants h ave met their burden of rebutting the comment j heeding presumption to the extent necessary to warrant summ ary judgment.

Our conclusions here are not contrary to the result s or rationales of Conti, Overpeck, or Powell, cases rel ied upon by defendants. Both Overpeck and Conti were concern ed with reminder warnings -- that is, those cases deal t with the question whether an additional warning by the manufacturer was needed when there was undisputed p roof that the victim was at one time aware of the specif ic danger posed by the product. In Conti, the plaintiff was i njured as she was entering the passenger side of her husband' s car. The husband had failed to disengage the clutch when he started the car and, as a result, it lurched backwa rds, injuring the plaintiff as she tried to enter. Plain tiff alleged that the defendant's failure to place a warning abo ut disengaging the clutch in the car's interior caused the injury, and a jury agreed.

After the district court denied Ford's post-trial m otion for a judgment notwithstanding the verdict, this Court
reversed. We determined that the issue of causation should
have been decided in the defendant's favor as a mat ter of
law. Mr. Conti had testified that he knew that in"d riving a standard transmission you would have to depress the clutch," and testified that he had read the portion of the Owner's Manual to his car which stated "[o]n manual transmission vehicles, depress the clutch pedal and place the gear shift lever in the neutral position." Cont i, 743 F.2d at 198. In light of these admissions of actual awar eness of the danger, which would rebut the comment j heeding presumption, we discerned no evidence in the record to suggest that Mr. Conti would have paid any greater attention to what he was doing when starting the ca r if additional warnings had been contained in the opera tor's
manual or on a sticker in the car. See id. at 198-9 9.

21In Overpeck, the plaintiff was injured when a tire

mounting tool manufactured by the defendant became disengaged from a tire and struck him in the eye. T he 780<!>plaintiff brought suit alleging, inter alia, that the manufacturer had failed to adequately warn him of t his danger. The jury found for the plaintiff, but the d istrict court granted a motion for judgment notwithstanding the verdict concluding that the record was devoid of ev idence directly establishing that any warning would have c aused the plaintiff to act differently. We affirmed. See Overpeck,
823 F.2d at 757. This conclusion was based on the f act that while Overpeck had apparently received no form al advance warning, he specifically testified that he was aware that the mounting tool might fly off during operati on. See id. at 755-56. In fact, he further indicated that h e knew how to prevent the precise injury caused in that ca se. See id. Thus, we concluded that any additional warning would have provided plaintiff with no new information, an d"thus would not logically have affected his behavior." Id . at 755.

In this case, we are not presented with similarly uncontroverted evidence demonstrating that Stephen Pavlik was aware at the time of his accident that inhaling butane could cause sudden death or serious bodily harm. Un like Conti and Overpeck, we have no direct testimony demonstrating the victim's knowledge. We only have evidence before us that Mrs. Pavlik may have warned Stephen (the content and adequacy of which is uncle ar and hence in dispute), and, at most, the possibility, s ee S 402A cmt. j, that he read a Clipper warning whose adequa cy is likewise at issue. Unlike Overpeck and Conti, there fore, we are not dealing solely with the narrow question whe ther there is independent evidence demonstrating that a reminder warning would have made a difference. In t his case, there are genuine issues of fact concerning w hether Stephen Pavlik was adequately warned in the first i nstance (i.e. was inhalation known to pose a danger of bodi ly harm), and thus whether the heeding presumption has been

rebutted.

Moreover, and more importantly, we held in Petree t hat

the user's mere awareness of a hazard does not esta blish that the user was fully aware of the risk of seriou s bodily

22injury, such that the user should be legally accoun table.

See Petree, 831 F.2d at 1196. In that case, the pla intiff was injured when he was struck in the face by a steel b ar which was ejected from a hydraulic press being operated b y his fellow employee. The plaintiff alleged that the hyd raulic press was defective for lack of a warning regarding the possibility that it could forcefully eject pieces o f scrap metal. See id. at 1192. Although there was evidence in the record from the operator of the press and others in dicating some prior awareness of the complained of danger, w e found that the evidence did not demonstrate an awar eness of "the full extent that an adequate warning might have provided," and thus held that the failure to warn c laim should have gone to the jury. See id. at 1196-97. S imilarly, in the present case the defendants' evidence does n ot demonstrate that a reasonable jury could only concl ude that Stephen Pavlik was fully aware of the extreme nature of the consequences he faced when he chose to inhal e butane.

The injury to the victims in Conti and Overpeck did not result in death, the result that befell Stephen Pav lik here. While our decision in those cases turned on deposit ion testimony by the victims, defendants here obviously did not have the opportunity to depose Stephen Pavlik and determine what his exact level of knowledge was at the time the injury occurred. However this is a distinction without a difference, for it is not the mere lack of direct t estimony by the victim (which would be missing in any products case resulting in death) that distinguishes this case fr om Conti and Overpeck. We simply find that Pavlik has met hi s burden of demonstrating that there is a disputed qu estion of fact concerning what Stephen knew and thus wheth er additional information ex ante would have altered h is
course of conduct. We also note that while Pavlik h as met his burden on summary judgment, he faces the more difficult burden of demonstrating causation to the jury at trial, and the evidence before us now might fall sh ort of

that mark.

Powell does not command a different result. In that case, the plaintiff, a hospital nurse, was injured when a handtied restraining vest manufactured by the defendant and

23designed to secure geriatric patients to a chair or bed was

removed by a patient, causing the patient to fall. The plaintiff attempted to grab onto the patient as he fell, resulting in an injury to the plaintiff's back. She brought suit against the manufacturer for failure to adequa tely warn of the danger of the patient's ability to remo ve the vest by himself.

Evidence in the record indicated that the hospital had a policy of using more secure restraining devices in addition to hand-tied vests only on patients who posed a thr eat of violence or escape. See Powell, 766 F.2d at 134. Th ere was also testimony that the patient involved in the acc ident was not, at the time of the accident, a known threat. S ee id. Thus, even if the additional warning desired by the plaintiff in Powell had been affixed, there was no reason to believe that the plaintiff would have acted any differently since she produced no evidence that she would have diverged f rom hospital policy with this particular patient (i.e. used additional restraints on a non-threatening person) had she been warned that patients using the defendant's ves t could untie themselves. See id. In short, although unlike Conti and Overpeck in that Powell does not pose a scenari o in which the plaintiff was specifically aware of the c omplainedof danger, the record made clear that even had she known that patients could untie the defendant's vests the mselves, she would not have acted differently.

This case is far different from Powell because, as we have explained, the record is not unequivocal as to Step hen Pavlik's knowledge of the dangers posed by butane inhalation and his likely course of conduct. Unlike the defendant in Powell, which introduced the evidence of the hospital policy to demonstrate that (even with the benefit of a heeding presumption) plaintiff had not met her bu rden of persuasion on the causation issue, here the defenda nts
have not directed us to similar evidence.7 Accordi ngly, Powell does not control. In sum, although a jury ma y not

___________________________________________________ ______________

7. Moreover, Pavlik has introduced evidence that in dicates that warnings are heeded in the non-consumable products context p resented by this case. Thomas J. Wallace, Ph.D., for example, has st ated very plainly that "[e]ffective labels do warn and do deter." App. at 352.

24find enough evidence here to find for Pavlik at tri al, he has

introduced at least enough to create a genuine issu e of material fact precluding summary judgment.

III. Intentional Infliction of Emotional Distress

The district court also granted defendants' motion for summary judgment on plaintiff's claim of intentiona l
infliction of emotional distress. The court found n o evidence in the record to support plaintiff's contention tha t defendants' conduct was "extreme and outrageous" or "beyond all bounds of decency." Op. at 11. We agree

.

As we have explained in prior opinions, the Pennsyl vania Supreme Court has yet to decide whether a cause of action
for intentional infliction of emotional distress is cognizable under Pennsylvania law, see Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 (Pa. 1987) (leavi ng "to another day" whether this cause of action is viable in the Commonwealth), generating confusion among the court s that have been presented with this type of tort cla im. Compare, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1486-87 (3d Cir. 1990), with Ford v. Isdaner, 542 A.2d 137, 139 (Pa. Super. Ct. 1988), and Small v. J uniata College, 682 A.2d 350, 355 (Pa. Super. Ct. 1996). W e have consistently predicted, however, that the Pennsylva nia Supreme Court will ultimately recognize this tort. See Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 232 (3d Cir. 1995); Silver v. Mendel, 894 F.2d 598, 606 (3d Cir. 1990); see also Corbett v. Morgenstern, 934 F. Supp. 680, 683-84 (E.D. Pa. 1996) (noting confusion caused by Kazatsk y and our subsequent prediction).

We have also predicted that Pennsylvania would gene rally
follow the basic formulation of the tort found in S 46 of the Restatement (Second) of Torts. See Trans Penn Wax, 50 F.3d at 232. Section S 46 provides that:

One who by extreme and outrageous conduct intentionally or recklessly causes severe em otional distress to another is subject to liability for such emotional distress, and if bodily harm to th e other results from it for such bodily harm.

25See also Small, 682 A.2d at 355 (citing S 46). We have

further held that S 46 liability will only be found where "the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bou nds of decency, as to be regarded as atrocious, and utterl y intolerable in a civilized community." Restatement (Second) of Torts S 46 cmt. d (cited in Kazatsky, 527 A.2d a t 991; Trans Penn Wax, 50 F.3d at 232). This is a heavy bu rden for a plaintiff to meet, as recovery under S 46 has been "highly circumscribed". Kazatsky, 527 A.2d at 991.

The thrust of plaintiff's S 46 claim is that Keen w as aware that butane inhalation was widespread and dea dly, but did nothing about it, while Lane was similarly put on notice and failed to make inquiries into this dange r. We agree with the district court that the plaintiff ha s not adduced sufficient evidence (the sum and substance of which we have outlined in the margin) to justify af inding that either defendant's acts in this regard amount to outrageous conduct that is intolerable in a civiliz ed society.8

___________________________________________________ ______________

8. With regard to Keen, plaintiff alleges that the company "refused" to participate in programs or take independent actions designed to alert the public to the dangers of inhalant abuse despite its knowledge of those dangers. To illustrate this, plaintiff points to Ke en's "refusal" to contribute to a campaign of public interest televis ion advertisements in the United Kingdom and its purported failure to com ply with proposals made by Re-Solve, a manufacturer's association. The evidence in the record, however, indicates only (1) that Keen was " not asked" to contribute to the advertising campaign; and (2) tha t Keen offered revisions to Re-Solve's proposals and decided to ta ke no action when ReSolve did not respond. See App. at 385, 391-92. Pla intiff also argues that, in response to a set of five recommendations by a British government advisory council designed to curb butane inhalation abuse, Keen only chose to adopt the one measure that it be lieved could also prove profitable. See App. at 394, 396. While this may be true, and while perhaps the act of following only one of many recom mendations proposed by an advisory group may appear suspect, w e cannot conclude that this act in this instance constitutes outrageo us conduct.

The evidence against Lane, plaintiff contends, demo nstrates a failure to "learn about or prevent death from butane inhala tion" after Lane was sued in Massachusetts in 1989. However, it is uncle ar from the record what the precise allegations in the Massachusetts c ase were, and we

26See Small, 682 A.2d at 355 (court must initially de cide

whether defendant's conduct was so extreme and outrageous that recovery may be justified). Accordi ngly, the district court's grant of summary judgment for defe ndants will be affirmed on plaintiff's intentional inflict ion of emotional distress claim. However, as explained abo ve, the order granting summary judgment on the failure to w arn claim will be reversed, and the case remanded to th e district court for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

__________________________________________________ _______________

could only speculate that the case arose out of sim ilar facts to those alleged here. Moreover, the record only supports th e conclusion that
Lane viewed the Massachusetts case as an "isolated incident" that did not warrant further investigation. App. at 400. Fur thermore, there is nothing in the record to suggest that Lane was awar e that butane was being used as an inhalant prior to that lawsuit, an d nothing that suggests that Lane learned from that case that thei r present warnings were inadequate. Plaintiff also offers other eviden ce of Lane's alleged failure to inquire into the harmful effects of buta ne inhalation, including its alleged failure to question why Keen wanted to add the "DO NOT BREATHE SPRAY" language to the Zeus label in 1987-8 8, and its alleged failure to reevaluate the Zeus warning when other l abel changes were proposed in 1992. Once again, we find nothing in th e record that demonstrates that Lane's knowledge of the butane ab use problem was such that these actions are indicative of outrageou s conduct.

27