Reading the statement from Renzulli Law Firm, they did appear to raise the defense. Follow my earlier link to their statement. This current kick back from the Appellate Court is the second appeal on this if I have read up correctly. That leads to the question of what additional evidence was brought out (possibly suppressed in original hearing) or what argument was presented on the prior evidence that made the difference?
The original case brought implications of Breach of Implied Warranty and also Defect / Defective Design. It appears to me that the only thing the appellates are letting it move forward on is "Possibility of Defect".