What can your product be used for? PA Supreme Court says multiple uses may be considered in products liability suits

In Beard v. Johnson & Johnson, the Pennsylvania Supreme Court found that a court conducting a risk-utility analysis on an allegedly  defective product should consider all of the uses of that product, not just the use that resulted in harm. The underlying state court case involved a woman who died of sepsis after bariatric surgery when the staples from the surgery did not close properly.  The plaintiff’s estate claimed that the area the surgeon stapled was too thick for the instrument used to insert her staples.  An Alleghany County jury agreed and award of $5 million.

The product at issue, an endocutter, was manufactured by a subsidiary of Johnson & Johnson. Although the plaintiff underwent open surgery, the endocutter is most commonly used for laparoscopic surgery.  The Superior Court overturned the jury’s award in part because the plaintiff’s estate failed, under a risk-utility assessment, to prove that the risks of the endocutter outweigh its benefit, especially during laparoscopic surgeries. At the Supreme Court, the plaintiff’s estate argued that since the endocutter was not used labroscopically during the plaintiff’s surgery that particular use should not factor into the risk-utility assessment. The assessment should be limited solely to the one implicated by the circumstances of plaintiff’s injury. However, the Supreme Court resoundingly rejected this contention and held that the appropriate focus of a design-defect risk utility analysis should not be limited to a particular intended use. Because the Pennsylvania trial courts are required to consider all aspects of a products use in their role as a “social philosopher”, they should not be required to put on blinders to avoid all practical uses of a given product.

Special thanks to Remy Cahn for her contributions to this post.  For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Venue is a Gamble: Casino case transferred to Bucks County for lack of minimum contacts.

On March 9, 2012, the Superior Court affirmed a Court of Common Pleas decision transferring the case of Wimble v. Greenwood Gaming to Bucks County from Philadelphia. The case involved an incident wherein the plaintiff slipped at fell at Parx Casino located in Bensalem, PA, which is indisputably in Bucks County. However plaintiff brought the case in Philadelphia County, ostensibly because  Greenwood Gaming regularly conducts business in Philadelphia, but really because Philadelphia juries are more generous than Bucks juries. Plaintiff asserted that Greenwood conducts business in Philadelphia through its subsidiary corporations which run 3 off-track betting facilities in Philadelphia. Furthermore plaintiff claimed that Greenwood spends a significant amount of advertising dollars in Philadelphia.

However, the trial court was unconvinced by plaintiff’s argument. The trial court stated that advertising does not establish venue because “mere solicitation of business in a particular county does not amount to conducting business”. Furthermore the trial court found that the corporations Wimble described as Greenwood subsidiaries, were more like sister entities.

The Superior Court agreed, noting that the entirety of Greenwood’s corporate activities occur in Bucks county and the underlying incident occurred there. Furthermore the Superior Court explained that while a parent and a wholly-owned subsidiary share common goals, they are still recognized as separate and distinct legal entities.

Thanks to Remy Cahn for her contributions to this post.

For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Pennsylvania defies U.S. Supreme Court and allows immediate appeals of discovery order regarding privilege

In November 2011, the Pennsylvania Superior Court decided in Com. v. Harris, 32 A.3d 243, 247-251, 2011 WL 5964550, 3 (Pa. – 7 (Pa. (Pa.,2011), that orders rejecting claims of privilege and requiring disclosures are immediately appealable.   As a general rule, Pennsylvania law permits only appeals from final orders. See Pa.R.A.P. 341 (“[A]n appeal may be taken as of right from any final order.”).  However the court will allow an immediate appeal if the question is collateral to the main cause of action, the right involved is too important to be denied review; and (3) the claim will be irreparably lost if the review is postponed until after final judgment. Pa.R.A.P. 313(b). In 1999, the Pennsylvania Supreme Court determined that orders overruling claims of privilege and requiring disclosures were immediately appealable based upon 313(b).  See Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999).

However, recently, in Mohawk Industries, Inc. v. Carpenter, 130 S.Ct. 599 (U.S.,2009), the United States Supreme Court reached the contrary result. The Supreme Court held that rulings adverse to the attorney-client privilege are not eligible for collateral order appeals because such orders are not effectively unreviewable after final judgment. Id. at 606. It stated that even if disclosure is improper, a litigant request a new trial.

Despite Mohawk, the court in Com v. Harris decided not to overturn its interpretation of Rule 313(b).  Starting that “we are particularly unconvinced that an appeal after final judgment is an adequate vehicle for vindicating a claim of privilege”, the court decided that the frank discussions fostered by privilege rules should be protected as a matter of public policy. Com. at 249.   As such, Pennsylvania will continue to allow issues of privilege to be immediately appealable as of right.


What is SOPA all about?

You may have noticed yesterday that your usual go-to research site, Wikipedia, was blocked.  Your dismay, while understandable, was intended by Wikipedia personnel.  The black-out was designed to bring awareness to the Stop Online Piracy Act currently circulating through the House of Representatives (the sister bill PIPA- Protect Intellectual Property Act is the Senate’s version).  Both bills exist to combat what Congress sees as a problem with international websites that provide U.S. consumers with access to pirated intellectual property, such as movies and music.

As a practical matter, the bills would give Justice Department prosecutors the ability to block the foreign sites from U.S. visitors.  For example, the attorney general could require search engines to disable links to the sites or prevent credit-card processors from processing payments to the site.  In addition, the bills would allow content owners like music studios and film production companies to sue websites that host pirated material.

The problem with the bills, claim a multitude of internet-based websites and free-speech advocates, is that they are drafted so broadly as to inhibit speech on the internet.  The bills require only a short good-faith letter that the website is allegedly hosting pirated content.  Once the letter is received, the website has only five days to either shut down the site or contest the letter in court.  Opponents claim that is impossible for websites with huge amounts of user-generated content, such as Facebook and twitter, to determine what material is pirated. 

What would SOPA mean for you?  If SOPA (or PIPA) were legalized in their current forms, every website host would need to be extremely vigilant about material, especially interactive media, posted on their site in order to ensure that none of the material is pirated.

There has been a huge outcry against the bills from non-traditional media outlets all over the county and President Obama has publicly stated he would not sign either SOPA or PIPA into law in their current forms. 

WCM is following the progress of the bills and will update the site periodically as new information comes available.

Remy Cahn