1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-4-1998

Pavlik v. Lane Ltd/Tobacco

Precedential or Non-Precedential:

Docket 97-1121,97-1199

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Recommended Citation

"Pavlik v. Lane Ltd/Tobacco" (1998). 1998 Decisions. Paper 24.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/24
Filed 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 Pennsylvania 
Argued: 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 case brought 

by plaintiff George Pavlik, administrator of the estate of 

Stephen Pavlik, a 20 year old man who died as the result 

_________________________________________________________________ 

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

 2 
of self-administered butane inhalation. The district court 

granted summary judgment in favor of the defendants, 

Keen (World Marketing) Ltd. ("Keen") and Lane 

Limited/Tobacco Exporters International ("Lane"), the 

manufacturer and distributor respectively of "Zeus" brand 

butane fuel, the product that was close-at-hand when 

Stephen collapsed, and which plaintiff alleges to be 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 defective 

because this warning inadequately warns potential users 

like Stephen Pavlik of the extreme hazards of butane 

inhalation. 

The district court held that the plaintiff's failure to warn 

claim fails for two reasons. First, the court determined that 

there was insufficient evidence in the record to prove that 

Stephen actually inhaled from the Zeus can on the night 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 associated 

with inhaling butane, and that a more specific warning 

would not have affected his conduct. The court reasoned 

that the alleged inadequate warning was therefore not the 

proximate cause of Stephen's injury. The court based this 

latter conclusion primarily on the fact that Stephen had 

also purchased and used cans of Clipper brand butane and 

therefore was presumed to have had notice of Clipper's 

more detailed warning. 

We believe that both of these conclusions are flawed. 

First, there is scientific evidence in the record that 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 proximity to 

him at the time the injury occurred, would permit a jury to 

infer that Stephen had in fact inhaled from the Zeus can. 

Second, we conclude that plaintiff has raised genuine 

issues of material fact on the defendant's proximate cause 

challenge. 

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

(3d Cir. 1987), to succeed in their causation defense, 

defendants must demonstrate that Stephen was fully aware 

of the risk of bodily injury posed by Zeus butane prior to 

the accident. Plaintiff, however, has successfully 

undermined defendants' claim that the text of the Zeus and 

Clipper warnings provided sufficient notice to break the 

causal chain, and he has identified genuine issues of fact 

concerning alleged warnings given by Stephen's mother, the 

other evidence on which defendants' rely. In the absence of 

direct evidence about Stephen's knowledge of the serious 

consequences of butane inhalation, and given the 

inconclusiveness of what Stephen's mother is purported 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 of 

summary judgment on plaintiff's intentional infliction of 

emotional distress claim. We agree with the district court 

that there is insufficient evidence in the record to support 

a conclusion that defendants' conduct in this matter 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 George 

Pavlik was asleep on his sofa when he was awakened by 

the sound of his twenty-year-old son, Stephen, arriving 

home after having spent the evening with his sister and 

friends. Shortly thereafter, Mr. Pavlik heard a loud"thud" 

coming from an upstairs room. When he investigated this 

unusual sound, Pavlik found Stephen lying on thefloor of 

his bedroom, gasping for breath. Pavlik immediately called 

the police and began to perform CPR. Paramedics soon 

arrived and unsuccessfully attempted to revive Stephen. He 

was pronounced dead later that morning. 

The coroner listed the cause of Stephen's death as 

cardiac dysrhythmia complicating abusive hydrocarbon 

inhalation. It is uncontroverted that this was the result of 

Stephen's intentional inhalation of butane gas. At the time 

 4 
of his death, a canister of Zeus brand butane was found 

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 reads: 

 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 butane 

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. 

 5 
In contrast to the Zeus can, the Clipper front panel 

contains no additional warning or language directing the 

user to consult the back panel. 

Plaintiff filed the present lawsuit against Lane, the United 

States distributor of Zeus brand butane, alleging strict 

product liability for failure to warn and intentional 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 allegedly 

fatal inhalation was not his first attempt at inhaling 

butane. Rather, they characterize Stephen's conduct as an 

attempt to "get high" in deliberate disregard of all 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 butane 

was dangerous. Additionally, they contend that Mrs. Pavlik 

had threatened Stephen in 1992 that he would be thrown 

out of the family home if he continued his butane abuse. 

Accordingly, defendants argued that plaintiff could not 

establish that the alleged inadequate warning was the 

cause-in-fact and proximate cause of Stephen's death. 

Defendants further claimed that their conduct in allegedly 

failing to provide an adequate warning was not sufficiently 

extreme and outrageous to permit recovery for intentional 

infliction of emotional distress. 

The district court granted the summary judgment motion 

on both counts. Plaintiff's motion for reconsideration was 

denied, and this timely appeal followed. The district court 

had jurisdiction under 28 U.S.C. S 1332. We have appellate 

jurisdiction over a final order of the district court pursuant 

to 28 U.S.C. S 1291. We set forth our familiar plenary 

standard of review of a grant of summary judgment in the 

margin.1 We explain the facts bearing on the present 

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 should be granted if "the 

pleadings, depositions, answers to interrogatories, and admissions on 

 6 
II. The Failure to Warn Claim 

A. Section 402A 

The Pennsylvania Supreme Court, whose law we are 

bound to follow as a court exercising diversity jurisdiction, 

has adopted S 402A of the Restatement (Second) of Torts, 

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 therefore 

"defective") for strict liability purposes if the product 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 product left 

the seller's hands. See id. (citing Berkebile v. Brantly 

Helicopter Corp., 337 A.2d 893, 899 (Pa. 1975)). In the 

context of a failure to warn case, to satisfy the second 

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 Greiner 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 Pennsylvania is 

normally for the jury, "if the relevant facts are not in 

dispute and the remoteness of the causal connection

between the defendant's negligence and the plaintiff's 

_________________________________________________________________ 

file, together with the affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving party 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 existence of [every] 

element essential to that party's case, and on which that party will bear 

the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). In evaluating the sufficiency of this evidence, 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). 

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

Conti, 743 F.2d at 197-98 (quoting Liney v. Chestnut 

Motors, Inc., 218 A.2d 336, 338 (Pa. 1966)). 

To reach a jury on a failure to warn theory of liability, 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. See id. 

at 197. As we develop infra, the plaintiff enjoys the benefit 

of a rebuttable presumption that an adequate warning 

would have been heeded if it had been provided; however, 

one way the defendant can rebut this presumption is by 

demonstrating that the plaintiff was previously fully aware 

of the risk of bodily injury posed by the product. The 

district court agreed with defendants that such a prior 

awareness did exist in this case and that there was

insufficient evidence in the record to support a reasonable 

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 Zeus 

can on the morning of April 10, 1994. We consider both 

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 court found 

that the only evidence in the record indicating that Stephen 

inhaled Zeus butane was the fact that a Zeus can was 

found on his bureau, while all the Clipper cans (plus other 

Zeus cans) were found buried in his bureau drawer, and 

that this alone was insufficient to create a genuine jury 

question. We disagree. 

Plaintiff points out that the onset of Stephen Pavlik's fatal 

reaction had to have been sudden, and thus it was more 

likely than not that he would neither have had the time nor 

the wherewithal to bury the can that he actually had used 

in his bureau drawer. Thus, plaintiff reasons that Stephen 

must have inhaled from the Zeus can. As noted supra, we 

 8 
must grant all reasonable inferences from the evidence in 

favor of the non-moving party; moreover there is evidence 

in the record that buttresses plaintiff's claim. For 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 consequences 

of Butane abuse and the fact that it can cause instant 

death." App. at 353. Although this evidence might not 

persuade a jury that Stephen's death was caused by the 

Zeus can, the inference plaintiff would have us draw is both 

logical and reasonable. One could reasonably (and easily) 

infer from these reports that it is more likely than not that 

it was the nearby Zeus can that triggered Stephen's death. 

Therefore, the district court should not have granted 

summary judgment on this ground. 

C. Would a Better Zeus Warning Have Deterred Stephen 

 Pavlik? 

The defendants' second argument in support of a grant of 

summary judgment in their favor is considerably more 

complicated. They contend (and the district court found) 

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 differently. 

According to the defendants, Stephen had been previously 

warned of the dangers of butane inhalation from three 

_________________________________________________________________ 

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

letterreport by Dr. Siegel which states that inhalation of butane can cause 

death "within minutes". Appendix at 357. However, this document was 

not in the record when the district court decided the defendant's 

summary judgment motion. Plaintiff did attach the letter to his motion 

for reconsideration in the district court, but under 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 evidence in support of a 

motion to reconsider a grant of summary judgment. Since Dr. Siegel's 

testimony was available (indeed, he even provided an 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 January 13 letter 

should not have been considered in the motion for reconsideration and 

will not be considered here. 

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

on the Clipper can; and (3) his mother. Based on these 

combined warnings, the defendants contend that Stephen 

was already aware of the dangers associated with butane 

inhalation when he decided to inhale the contents of the 

Zeus can on the night of his death. The district court 

agreed and held that, even assuming that the Zeus warning 

was inadequate, there was no evidence in the record that 

an adequate warning would have had any deterrent value. 

In support of their claim, the defendants rely on Conti, 

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 that the 

allegedly defective lack of an adequate warning could not 

have proximately caused the victim's injuries. In Conti 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 changed her 

course of conduct had she been provided with the warning 

she sought, and, in fact, there was evidence specifically 

suggesting the contrary. The defendants nonetheless

submit that the facts here compel the same conclusion 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 analysis on the 

additional precautions that might have been taken by the 

end user had the allegedly defective warning been different. 

See Powell, 766 F.2d at 135. This analysis requires the fact 

finder at trial or a court on summary judgment to"consider 

not only what did occur, but also what might have occurred 

. . . . 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 (Pa. 

Super. Ct. 1990) (citing Hamil v. Bashline, 392 A.2d 1280, 

1286-87 (Pa. 1978)) (emphasis in original), aff'd sub nom. 

Kimco Dev. Corp. v. Michael D's Carpet Outlets, 637 A.2d 

603 (Pa. 1993). 

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

process, providing that "[w]here a warning is given, the 

seller may reasonably assume that it will be read and 

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 been 

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 Chemical Co. 

v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972). From this, it 

follows logically that the law should also presume that, 

when no warning or an inadequate warning is provided, the 

end-user would have read and heeded an adequate warning 

had one been given by the manufacturer. See Coffman I, 

608 A.2d at 421 (collecting cases following this logic); 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 the user to 

the danger and forestalled the accident."); but cf. Coffman 

II, 628 A.2d at 717-18 (extension of comment j based more 

on public policy than logic). Indeed, many jurisdictions 

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 (collecting 

cases); Allan E. Korpela, Annotation, Failure to Warn as 

Basis of Liability Under Doctrine of Strict Liability in Tort, 53 

A.L.R.3d 239 (1974). This presumption assists the failure 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, see 

Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971), to date the 

Pennsylvania Supreme Court has not expressly decided 

whether the heeding presumption would apply under 

Pennsylvania's interpretation of S 402A. On two prior 

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 the warning provided, 

while substantively adequate, suffers from communicative deficiencies 

(e.g. small or otherwise illegible type) and is thus unlikely to convey 

its 

danger message to the user. We discuss this aspect of comment j infra 

at pages 18-19. 

 11 
predicting how the Court would rule, see Petree, 831 F.2d 

at 1196 n.2, Overpeck, 823 F.2d at 756 & n.4; in those 

cases, we found that even if the heeding presumption 

existed, the defendants would have successfully rebutted it. 

We now predict that Pennsylvania would adopt a 

rebuttable heeding presumption as a logical corollary to 

comment j. Since the very idea of imposing strict liability 

for the failure to warn is premised on the belief that the 

presence or absence of an adequate warning label will affect 

the conduct of a product user, it would be illogical, and 

contrary to the basic policy of S 402A, to accept that a 

product sold without an adequate warning is in a "defective 

condition", see Incollingo, while simultaneously rejecting the 

presumption that the user would have heeded the warning 

had it been given. Indeed, in its most recent (albeit limited) 

discussion of comment j, the Pennsylvania Supreme Court 

stated plainly that "the law presumes that warnings will be 

obeyed." Davis, 690 A.2d at 190. We predict, therefore, 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 still 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 rebuttable, 

and thus "[w]hen the opponent of the presumption has met 

the burden of production thus imposed . . . the office 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 evidence 

"sufficient to support a finding contrary to the presumed 

fact." See McCormick on Evidence S 344 (3d ed. 1984). 

Applied to the present case, this means that if Lane 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 

 12 
to that risk, so as to be legally chargeable with the 

consequences," see Petree, 831 F.2d at 1196, then the 

presumption would be successfully rebutted and the 

burden of production would shift back to Pavlik to come 

forward with evidence demonstrating that an adequate 

warning would have changed Stephen's behavior. At that 

point, "only the facts or actual evidence from which 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 Pennsylvania); 9 

Wigmore on Evidence S 2487; cf. Overpeck, 823 F.2d at 756 

& n.3 (Where "an inference that a warning would have 

reminded a user of a known danger is unsupported by

independent evidence, such an inference is impermissible 

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 afinding 

contrary to the presumed fact to rebut the presumption at 

trial, see supra, to satisfy Rule 56 the record must show 

that a reasonable fact finder would be bound tofind that 

Stephen Pavlik was fully aware of the risk of bodily injury; 

otherwise, we are presented with a genuine issue of fact for 

the jury. With this standard in mind, we turn now to 

determine whether the evidence cited by the defendants is 

sufficient to establish (to the extent just described) that 

Stephen Pavlik was fully aware of the risk of bodily injury 

posed by butane inhalation prior to his accident. 

2. Mrs. Pavlik's Warnings 

There is evidence in the record indicating that Stephen 

Pavlik's mother, who passed away approximately one year 

after Stephen's death, knew that her son had inhaled 

butane on at least two prior occasions, once in 1992 and 

again in 1994. The coroner's certificate of identification, for 

example, states that Mrs. Pavlik had caught Stephen

inhaling butane about two years before his death, though 

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" with two 

cans of butane sometime in 1992, and that Mrs. Pavlik had 

 13 
told Stephen that if he continued, he would be thrown 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 she had 

caught Stephen inhaling butane: 

 A: . . . after Stephen's death, she had told 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 discussed 

 [between you and Mrs. Pavlik] a lot? 

 A: No, not a lot, no. A couple times, but not a lot. 

 . . . 

 Q: Did Mrs. Pavlik indicate exactly what she 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 statement 

upon which the defendants rely to show that Mrs. Pavlik 

had warned Stephen of the dangers of butane inhalation. 

This evidence, however, is not uncontroverted. Theresa 

Pavlik consistently testified that Mrs. Pavlik did not know 

specifically what Stephen was doing with the cans of 

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 found out 

 what your brother was doing with these cans? 

 A: Specifically, no. 

 Q: Did your mother say, "I think he was inhaling or 

_________________________________________________________________ 

4. It is unclear from the briefs and the deposition transcripts in the 

record to which of the two (or possibly other) occasions noted above 

Denise Johnson's testimony refers. 

 14 
 ingesting 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 doing 

 with this material? 

 A: Yes sir, there was. She was not sure exactly what 

 it was that he was doing with them. She just had 

 a feeling that it just was not right, whatever it was 

 he was doing with it. 

 Q: And did you indicate or did you suggest anything 

 as to what he may be doing with this material? 

 A: Not that I remember. 

App. at 304-05. As for the second incident, in 1994, 

Theresa Pavlik testified that neither she nor her mother 

specifically confronted Stephen about butane inhalation at 

that time: 

 Q: When you spoke to your mother in January of`94, 

 did she indicate that this was only the second time 

 she ever heard this laughing, the first time 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 son again? 

 A: No, sir, not that I remember. 

App. 307-08. 

It is tempting to superimpose upon the record our own 

street-wise assumption that everyone knows the dangers 

(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 of 

apprehension of danger with respect to the seriousness of 

harm, viewing this evidence in the light most favorable to 

the plaintiffs, we cannot agree with defendants that it is 

beyond dispute that Mrs. Pavlik's warning was sufficient to 

break the causal chain. The jury may well find for 

defendants, but it is a question for the jury. 

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

warning to Stephen, it is uncertain what the content of that 

warning was. Next, since the content of Mrs. Pavlik's 

warning is unclear, we cannot conclusively determine 

whether it was adequate to put Stephen on notice of the 

full extent of the risk of bodily injury, see Petree, supra, 

posed by butane inhalation. Indeed, there is also a genuine 

issue of material fact whether Mrs. Pavlik even knew what 

Stephen was doing with the butane cans -- and hence

whether she was even capable of providing Stephen with 

sufficient knowledge of the danger at issue. 

Theresa Pavlik's testimony that Mrs. Pavlik had said "the 

stuff's dangerous," is an insufficient basis for us to decide 

as a matter of law that Stephen was sufficiently warned of 

the danger at issue prior to his fatal inhalation, and 

therefore that the heeding presumption has been rebutted. 

This statement provides no more information than the 

warning on the Zeus can that a user should not "breathe 

spray." Indeed, it may actually provide less information, 

since Mrs. Pavlik's admonition does not relate what exactly 

about the butane is dangerous and/or what uses of the 

product would be dangerous. Below we consider whether a 

different result is commanded when we consider this

evidence in conjunction with the warnings on the Clipper 

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 within the 

scope of these cases, the record must demonstrate that 

Stephen was fully aware of the risk of bodily injury posed 

by butane inhalation. See Petree, supra . We deal first with 

the Zeus warning. As a matter of basic logic, the 

defendants' argument that Stephen read the Zeus label and 

therefore a more detailed warning would not have altered 

his course of conduct is not really a claim about causation 

at all, but is a claim about the ultimate issue in this case 

-- the adequacy of the existing Zeus warning under S 402A. 

 16 
The initial determination of whether a warning is 

adequate in Pennsylvania is a matter of law. See Nowak v. 

Faberge USA, Inc., 32 F.3d 755, 757 (3d Cir. 1994), aff'g, 

812 F. Supp. 492 (M.D. Pa. 1992); Davis, supra. Since, as 

we develop below, we discern a genuine issue of material 

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 causation. To 

the contrary, based on the present record, we have serious 

doubts that the Zeus warning sufficiently warns users of 

the potentially fatal consequences of butane inhalation, 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 nature of 

the danger posed by inhalation, intentional or otherwise, 

and no other language on the Zeus can does so. Yet, we 

similarly cannot find that such a directive is inadequate as 

a matter of law, and so we must leave the question for the 

jury.5 

The present case does not, however, present the typical 

manner in which the adequacy of a warning becomes an 

issue. Normally, it is only the warning on the defendant's 

product -- here, Zeus brand butane -- whose adequacy 

courts are called upon to consider. The twist in this case is 

that the defendants and the district court have also 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 legal 

adequacy of the Clipper warning, it is apparent that 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 letters on the 

back panel of the can, "Deliberately inhaling the contents 

_________________________________________________________________ 

5. We make clear, however, that this conclusion presupposes that the 

district court will first engage in the necessary Azzarello analysis. See 

Nowak, 32 F.3d at 757 (citing Azzarello v. Black Bros. Co., 391 A.2d 

1020, 1025-27 (Pa. 1978). 

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

that Stephen Pavlik had read this warning because Stephen 

had "apparently inhaled" Clipper brand butane at some 

point. The basis for this inference is the fact that 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 manner or 

other. 

As we have explained, it is normally presumed, pursuant 

to comment j, that when an individual uses a product he or 

she has read and heeded any warning labels attached to 

that product. However, there is an exception to this 

presumption, implicit in cases that hold that the victim's 

actual failure to read a warning label does not necessarily 

bar recovery "where the plaintiff is challenging the 

adequacy of the efforts of the manufacturer to communicate 

the dangers of the product to the buyer or user." Nowak, 

supra, 812 F. Supp. at 498; see also Baldino v. Castagna, 

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 printed 

warnings). That is, in cases where the alleged failure to 

warn is based on claims that a warning was given but was, 

for example, printed in small or unreadable type, the 

comment j presumption should not apply so as to compel 

a verdict for the defendant. This is because manufacturers 

cannot rely upon a presumption that the victim read a 

warning to shield themselves from liability for warnings 

that are inadequate precisely because they are not 

presented in a manner sufficient to attract the user's 

attention. See id. 

In the present case, the inadequacies of the Clipper 

warning alleged by plaintiff are both substantive (i.e. the 

warning does not adequately describe the danger posed) 

and communicative (i.e. the warning does not command the 

attention of the user). To demonstrate the problems with 

_________________________________________________________________ 

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

supra. 

 18 
the Clipper warning, plaintiff primarily relies upon a report 

by E. Patrick McGuire, who is offered as a warnings expert. 

McGuire concludes that the Clipper warning is defective for 

the following reasons: 

 1) The inhalant danger is not listed on the front panel 

 of the can, despite the fact that this is one 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 "will 

 interpret this admonition to mean that a harmful 

 dosage level is only reached if the entire can is 

 inhaled"; 

 3) The warning is set in conditional language, as 

 opposed to stating that inhalation is "likely" to 

 produce a fatal reaction. 

App. at 329. McGuire's opinion raises genuine issues of fact 

about the adequacy of the Clipper warning. On a 

substantive level, we can reasonably infer from McGuire's 

second and third critiques set forth above that even if 

Stephen Pavlik had read the Clipper warning, he would not 

have adequately been fully warned of the danger of bodily 

harm posed by butane inhalation. 

But even if the warning was substantively sound, that 

might not be enough, for the case law suggests that factors 

such as the placement and size of warning labels should 

also be considered. The opinion of the district court in 

Nowak, supra, surveyed the cases discussing these factors 

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 to the true 

 nature of the danger due to its position, size, 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 

 19 
 them of its dangers, and to advise them of the 

 measures to take to avoid these dangers. 

Nowak, 812 F. Supp. at 497 (citations omitted). Although 

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 district 

court's analysis. We do so here. 

Following Nowak, we could also conclude from McGuire'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 label 

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 user. 

Thus, drawing all inferences from the record in plaintiff's 

favor, we find that there is a genuine issue of material fact 

whether the Clipper warning was sufficient to catch

Stephen Pavlik's attention and, by its terms, render 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 that it is 

substantively deficient), or whether the exception discussed 

supra applies (in which case plaintiff has introduced 

sufficient evidence of communicative inadequacies to raise 

a question for the jury). 

The defendants have pointed to no specific evidence in 

the record that would render the Clipper warning sufficient 

to defeat causation. Instead, defendants argue in their 

briefs that Stephen Pavlik "deliberately disregarded" the 

Clipper and Zeus warnings "in an attempt to misuse a 

product for the sole purpose of getting high." While a jury 

could certainly find the Clipper warning adequate and 

reach this conclusion, the defendants do not cite to 

evidence in the record demonstrating that a reasonable jury 

 20 
could not find otherwise. Although we have thus far

considered defendants' evidence of the three possible 

sources of Stephen's prior knowledge separately, we make 

clear that even considering the evidence of the Clipper 

warning in conjunction with the evidence of Mrs. Pavlik's 

alleged warnings and the (otherwise inadequate) Zeus 

warning, we are not persuaded that the defendants have 

met their burden of rebutting the comment j heeding

presumption to the extent necessary to warrant summary 

judgment. 

Our conclusions here are not contrary to the results or 

rationales of Conti, Overpeck, or Powell, cases relied upon 

by defendants. Both Overpeck and Conti were concerned 

with reminder warnings -- that is, those cases dealt with 

the question whether an additional warning by the 

manufacturer was needed when there was undisputed proof 

that the victim was at one time aware of the specific danger 

posed by the product. In Conti, the plaintiff was injured 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 backwards, 

injuring the plaintiff as she tried to enter. Plaintiff alleged 

that the defendant's failure to place a warning about 

disengaging the clutch in the car's interior caused the 

injury, and a jury agreed. 

After the district court denied Ford's post-trial motion 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 matter of 

law. Mr. Conti had testified that he knew that in"driving 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." Conti, 743 F.2d 

at 198. In light of these admissions of actual awareness 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 car if 

additional warnings had been contained in the operator's 

manual or on a sticker in the car. See id. at 198-99. 

 21 
In 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. The 

 780<!>plaintiff brought suit alleging, inter alia, that the 

manufacturer had failed to adequately warn him of this 

danger. The jury found for the plaintiff, but the district 

court granted a motion for judgment notwithstanding the 

verdict concluding that the record was devoid of evidence 

directly establishing that any warning would have caused 

the plaintiff to act differently. We affirmed. See Overpeck, 

823 F.2d at 757. This conclusion was based on the fact 

that while Overpeck had apparently received no formal 

advance warning, he specifically testified that he was aware 

that the mounting tool might fly off during operation. See 

id. at 755-56. In fact, he further indicated that he knew 

how to prevent the precise injury caused in that case. See 

id. Thus, we concluded that any additional warning would 

have provided plaintiff with no new information, and"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. Unlike 

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 unclear and 

hence in dispute), and, at most, the possibility, see S 402A 

cmt. j, that he read a Clipper warning whose adequacy is 

likewise at issue. Unlike Overpeck and Conti, therefore, we 

are not dealing solely with the narrow question whether 

there is independent evidence demonstrating that a 

reminder warning would have made a difference. In this 

case, there are genuine issues of fact concerning whether 

Stephen Pavlik was adequately warned in the first instance 

(i.e. was inhalation known to pose a danger of bodily harm), 

and thus whether the heeding presumption has been 

rebutted. 

Moreover, and more importantly, we held in Petree that 

the user's mere awareness of a hazard does not establish 

that the user was fully aware of the risk of serious bodily 

 22 
injury, such that the user should be legally accountable. 

See Petree, 831 F.2d at 1196. In that case, the plaintiff was 

injured when he was struck in the face by a steel bar which 

was ejected from a hydraulic press being operated by his 

fellow employee. The plaintiff alleged that the hydraulic 

press was defective for lack of a warning regarding the 

possibility that it could forcefully eject pieces of scrap 

metal. See id. at 1192. Although there was evidence in the 

record from the operator of the press and others indicating 

some prior awareness of the complained of danger, we 

found that the evidence did not demonstrate an awareness 

of "the full extent that an adequate warning might have 

provided," and thus held that the failure to warn claim 

should have gone to the jury. See id. at 1196-97. Similarly, 

in the present case the defendants' evidence does not 

demonstrate that a reasonable jury could only conclude 

that Stephen Pavlik was fully aware of the extreme nature 

of the consequences he faced when he chose to inhale 

butane. 

The injury to the victims in Conti and Overpeck did not 

result in death, the result that befell Stephen Pavlik here. 

While our decision in those cases turned on deposition 

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 testimony by 

the victim (which would be missing in any products case 

resulting in death) that distinguishes this case from Conti 

and Overpeck. We simply find that Pavlik has met his 

burden of demonstrating that there is a disputed question 

of fact concerning what Stephen knew and thus whether 

additional information ex ante would have altered his 

course of conduct. We also note that while Pavlik has 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 short 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 

 23 
designed 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 adequately 

warn of the danger of the patient's ability to remove 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 threat of 

violence or escape. See Powell, 766 F.2d at 134. There was 

also testimony that the patient involved in the accident was 

not, at the time of the accident, a known threat. See 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 from 

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 vest could 

untie themselves. See id. In short, although unlike Conti 

and Overpeck in that Powell does not pose a scenario in 

which the plaintiff was specifically aware of the complainedof danger, the record made clear that even had she known 

that patients could untie the defendant's vests themselves, 

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 Stephen 

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 burden of 

persuasion on the causation issue, here the defendants 

have not directed us to similar evidence.7 Accordingly, 

Powell does not control. In sum, although a jury may not 

_________________________________________________________________ 

7. Moreover, Pavlik has introduced evidence that indicates that warnings 

are heeded in the non-consumable products context presented by this 

case. Thomas J. Wallace, Ph.D., for example, has stated very plainly that 

"[e]ffective labels do warn and do deter." App. at 352. 

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

introduced at least enough to create a genuine issue 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 intentional 

infliction of emotional distress. The court found no evidence 

in the record to support plaintiff's contention that 

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 Pennsylvania 

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) (leaving "to 

another day" whether this cause of action is viable in the 

Commonwealth), generating confusion among the courts 

that have been presented with this type of tort claim. 

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. Juniata 

College, 682 A.2d 350, 355 (Pa. Super. Ct. 1996). We have 

consistently predicted, however, that the Pennsylvania 

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 Kazatsky and 

our subsequent prediction). 

We have also predicted that Pennsylvania would generally 

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 emotional 

 distress to another is subject to liability for such 

 emotional distress, and if bodily harm to the other 

 results from it for such bodily harm. 

 25 
See 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 bounds of 

decency, as to be regarded as atrocious, and utterly 

intolerable in a civilized community." Restatement (Second) 

of Torts S 46 cmt. d (cited in Kazatsky, 527 A.2d at 991; 

Trans Penn Wax, 50 F.3d at 232). This is a heavy burden 

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 was 

aware that butane inhalation was widespread and deadly, 

but did nothing about it, while Lane was similarly put on 

notice and failed to make inquiries into this danger. We 

agree with the district court that the plaintiff has not 

adduced sufficient evidence (the sum and substance of 

which we have outlined in the margin) to justify afinding 

that either defendant's acts in this regard amount to 

outrageous conduct that is intolerable in a civilized 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 Keen's "refusal" to 

contribute to a campaign of public interest television advertisements in 

the United Kingdom and its purported failure to comply 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) that Keen offered 

revisions to Re-Solve's proposals and decided to take no action when ReSolve did not respond. See App. at 385, 391-92. Plaintiff 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 believed 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 recommendations 

proposed by an advisory group may appear suspect, we cannot conclude 

that this act in this instance constitutes outrageous conduct. 

The evidence against Lane, plaintiff contends, demonstrates a failure 

to "learn about or prevent death from butane inhalation" after Lane was 

sued in Massachusetts in 1989. However, it is unclear from the record 

what the precise allegations in the Massachusetts case were, and we 

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

whether defendant's conduct was so extreme and 

outrageous that recovery may be justified). Accordingly, the 

district court's grant of summary judgment for defendants 

will be affirmed on plaintiff's intentional infliction of 

emotional distress claim. However, as explained above, the 

order granting summary judgment on the failure to warn 

claim will be reversed, and the case remanded to the 

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 similar facts to those 

alleged here. Moreover, the record only supports the conclusion that 

Lane viewed the Massachusetts case as an "isolated incident" that did 

not warrant further investigation. App. at 400. Furthermore, there is 

nothing in the record to suggest that Lane was aware that butane was 

being used as an inhalant prior to that lawsuit, and nothing that 

suggests that Lane learned from that case that their present warnings 

were inadequate. Plaintiff also offers other evidence of Lane's alleged 

failure to inquire into the harmful effects of butane inhalation, 

including 

its alleged failure to question why Keen wanted to add the "DO NOT 

BREATHE SPRAY" language to the Zeus label in 1987-88, and its alleged 

failure to reevaluate the Zeus warning when other label changes were 

proposed in 1992. Once again, we find nothing in the record that 

demonstrates that Lane's knowledge of the butane abuse problem was 

such that these actions are indicative of outrageous conduct. 

 27