Category Archives: Product Liability

PA Court Rejects Spoliation Sanctions in Crib Death Case

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A federal judge in the Western District of Pennsylvania recently considered whether sanctions for spoliation were proper in a tragic case where a baby suffocated to death in his crib due to an allegedly defective bumper pad.

In Micjan v. Wal-Mart Stores, plaintiffs sued Wal-Mart, Garan Services Corp., and Triboro Quilt Manufacturing after their three-month old son died from asphyxia in 2012. Plaintiffs claimed that there was a defect in their son’s bumper pad. The three defendants moved for dismissal based on spoliation, arguing that the child could have died from suffocating on other items, such as the crib, mattress, stuffed animal, pillow and blankets. These items were not preserved, as plaintiffs lost most of the crib items during various moves that the family made.

In ruling against the defendants, the judge determined that defendants had to show that plaintiffs acted in bad faith in not retaining the items, in addition to showing that the items were relevant to the case and in plaintiffs’ control. The judge determined that there was no evidence showing bad faith and further argued that the defendants failed to explain how the duty to preserve evidence was reasonably foreseeable to the plaintiffs, who would have no reason to anticipate that the other items could be a part of a future lawsuit’s defense.

Judge Mitchell further stated that the defendants were not prejudiced by the lack of the other items in the crib as the defendants could acquire similar examples of such items to use as part of their defense.

Lawyers often cite to the adage “bad facts make bad law” and no doubt here the plight of these sympathetic plaintiff’s impacted the court’s decision.

Thanks to Chelsea Rendleman for her contribution to this post and please write to Mike Bono for more information.

 

Forklift Drivers Should Look Where They’re Driving

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A jury in Philadelphia County recently came back with a defense verdict in a products lawsuit against a forklift company.

In Kovacevich v. Crown Equipment, the plaintiff was working as a salesman for the Philadelphia Wholesale Produce Market, when a coworker driving a Crown Equipment forklift drove into him. The coworker testified that he could not see the plaintiff because the load he was carrying with the forklift obscured his vision. Plaintiff argued that the design of the fork lift caused his accident.

Crown Equipment argued that their operation manual instructs drivers to “travel in the direction that gives them the best view and to look where they are driving.” Thus, because the coworker was operating the forklift in a matter where he could not see, it was not a design defect that caused plaintiff’s injury, but the negligence of his coworker.

Plaintiff cited economic damages of up to $3.1 million and demanded $5 million; however, the jury agreed with Crown Equipment, finding it not liable for plaintiff’s injuries.

Thanks to Konrad Krebs for his contribution to this post.

Blind Spot: Jury Awards $5 Million Based on Defective SEPTA Bus Mirror (PA)

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SEPTA is no stranger to accidents and their resulting lawsuits.  Last December, a Philadelphia jury awarded a $5 million verdict against SEPTA and the manufacturer of its buses, New Flyer of America Inc., in Chin v. SEPTA.

The case arose out of a September 5, 2012 incident in which the plaintiff, Stephen Chin, was crossing the street at Sixth and Arch in Philadelphia when he was struck by a SEPTA bus turning left onto Sixth Street.  Chin fell and the bus rolled over his right foot, causing a degloving injury and multiple fractures to his ankle and foot.  Chin was a college athlete who ran cross-country.  After the accident, he continued to suffer significant pain which greatly impacted his way of life.

Chin sued SEPTA on a theory of negligence and New Flyer on claims of negligence and strict liability, alleging that they had defectively designed the bus when it mounted the driver’s side rear-view mirror.  Chin asserted that due to this defect the driver was unable to see him as he crossed the street.  Chin settled with SEPTA for its statutory cap amount of $250,000 while the case against New Flyer proceeded to trial.

At trial, testimony showed that it was solely New Flyer’s responsibility to determine the best position for the bus’s rear-view mirror even though SEPTA advised them to position the mirror to minimize blind spots.  Chin’s team used an expert who stated that the bus design was defective due to New Flyer’s negligent methodology.  Specifically, he stated that New Flyer’s failure to listen to SEPTA’s specifications, their lack of computer-aided analysis of sightlines, and their failure to meet industry standards of lower placed mirrors all fed in to their negligence and defective design.  The expert even provided a 3D model which demonstrated that had the mirror been four inches lower, the driver would have been able to see Chin.

New Flyer’s defense team produced an expert of their own who stated that the bus was not defective but instead it was the driver’s fault for failing to use the “rock and roll” technique.  This technique requires a bus driver to bend forward, backward, and side-to-side to see over any objects obstructing their view, such as rear-view mirrors.  To support this, he produced his own 3D model as well which showed that had the driver used the rock and roll technique they would have been able to see Chin.

The jury found New Flyer to be negligent but not strictly liable.  Chin was determined to receive $5 million; of which they determined that New Flyer was 25% liable and SEPTA 75%, thus putting New Flyer on the hook for $1.25 million.

This verdict reminds of importance of experts where the jury’s factual determination depends on one fact witness’s interpretation of events and their legitimacy.  Here, New Flyer may have saved $3.75 million, thanks to their expert’s testimony.  The jury may have been thinking along the lines of Mick Jagger – “I know, it’s only ‘rock n’ roll,’ but I like it.”  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Updates in Tort Law Don’t Rid Ford of $6 Million Verdict on Appeal (PA)

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The Superior Court of Pennsylvania denied a motion for a new trial and/or judgment notwithstanding the verdict filed by Ford Motor Company after a jury award of $5,940,706.86  in Cancelleri v. Ford Motor Co.

In August 2010, John Cancelleri was driving south on Pennsylvania Route 307 in his 2005 Mercury Sable. Suddenly, a 2007 Ford Mustang travelling in the opposite direction turned left into his path and crashed into the front left side of his vehicle. During the collision, Cancelleri was wearing his seatbelt, but his airbag failed to deploy, which allowed his head to hit the windshield. Following the accident, Cancelleri was confined to a wheelchair due to a disc herniation and spinal cord compression.

The Cancelleris sued, among others, Ford, the company that manufactured the Mercury Sable, on the theories of negligence, strict liability, breach of implied warranty of fitness and/ merchantability, punitive damages and loss of consortium. The jury unanimously found in favor of the Cancilleris on their claims of crashworthiness design defect and loss of consortium.

The primary argument that Ford raised on appeal, was that the Pennsylvania Supreme Court’s 2014 decision in Tincher v. Omega Flex, Inc. allowed a more accommodating standard of proof in a determination of whether a product is in defective condition in strict product liability cases. Tincher held that “when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risks and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product. The credibility of witnesses and testimony offered, the weight of evidence relevant to the risk-utility calculus, and whether a party has met the burden to prove the elements of the strict liability cause of action are issues for the finder of fact.” Tincher v. Omega Flex, Inc., 104 A.3d 328, 407 (Pa. 2014)

Ford argued that under Tincher, the trial court should have submitted the question of whether the vehicle was unreasonably dangerous and that the jury should have been asked to consider risk-utility factors in making its determination.

The appeals court rejected these arguments because Tincher did not specifically involve a crashworthiness case and was “not intended as a rigid formula to be offered to the jury in all situations.” The Court noted that “in crashworthiness cases, the jury is required to determine whether the vehicle was defective in design as well as whether an alternative safer, and practicable design existed at the time of design that could have been used instead… the jury’s considerations in crashworthiness cases, including the instant matter, already involve[d] proof of risks and utilities regarding whether the harm suffered was due to the defective condition of the product.”

Thanks to Sathima Jones for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Pelvic Mesh Implant Test Case Results in Punitive Award (PA)

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The first of the Philadelphia pelvic mesh implant cases has come to a resolution in Hammons v. Ethicon. On Monday December 21, 2015, a Philadelphia jury awarded Plaintiff Patricia Hammons $5.5 million in compensatory damages for a defective pelvic mesh implant.

Pelvic mesh implants were introduced to support a patient’s bladder. Plaintiff alleged that her 2009 pelvic mesh implant instead caused scar tissue build up, which ultimately caused an erosion of her bladder and pain during sex. Unfortunately, Plaintiff cannot remove the mesh, because it has molded to her bladder.   Defendant Johnson & Johnson claimed that Plaintiff’s pelvic mesh implant worked as expected by supporting her bladder. Furthermore, the risks of the implant were well known in the medical community, particularly among doctors.

The jury concluded that the pelvic mesh product was negligently designed, and that Johnson & Johnson knowingly continued to manufacture the product through a subsidiary. After their decision to award Plaintiff $5.5 million in compensatory damages, the jury also decided that the case should include punitive damages. One day after the verdict, the jury awarded Plaintiff $7 million in punitive damages.

Interestingly, Johnson & Johnson’s attorney noted that Johnson & Johnson’s headquarters in Philadelphia will be closing in the coming year.

There are currently 181 pending pelvic-mesh mass tort cases pending in Philadelphia. Johnson & Johnson admitted on cross-examination that they have at least $44.1 billion in liquid assets that could be converted to cash in order to satisfy the verdict. One down … 181 to go.

Thanks to Melanie Brother for her contribution.

For more information, contact Denise Fontana Ricci at

Tincher Continues To Confuse Pennsylvania Products Attorneys

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It has been a year since the Pennsylvania Superior Court decided that PA would continue to follow the Restatement (Second) of Torts in Tincher v. Omega Flex, and the fog of confusion surrounding the state of products liability law has not ebbed.  The recent case of Sliker v. Ntnl Feeding Systems, No. 282 CD 2010 (C.P. Clarion Co. Oct. 19, 2015 Arner, P.J.), illuminates this problem.

In Sliker, the plaintiff suffered a significant injury that resulted in a left leg amputation when he attempted to fix a silo unloader that had become stuck.  Plaintiff was servicing the auger portion of the unloader while it was still moving.  Evidence of Tincher confusion became obvious during the pre-trial stage of this matter, when a glut of motions in limine were filed.  Plaintiff filed two motions in limine at issue here.  First, he argued that defendants should not be allowed to introduce evidence of negligence, since under the Restatement (Second) of Torts; the user’s conduct is irrelevant and prejudicial.  The plaintiff cited Tincher’s reasoning that such evidence is outside the confines of the risk-utility standard.  Meanwhile defense cited Tincher as a means to demonstrate that the Court no longer so strictly distinguishes the two concepts.  Judge Arner ultimately agreed with defendant and held that evidence of negligence can be relevant because “the user’s ability to avoid danger in using a product will factor into the manufacturer’s conduct”.

In addition both sides also cited Tincher in plaintiff’s motion to exclude defendant’s evidence of compliance with industry standards.  Plaintiff used Tincher to argue that a manufacturer’s reasonableness is irrelevant to its product’s defectiveness, while NFS argued that compliance with industry standards is now relevant to the consumer-expectation and risk-utility test.  In this instance, Arner also sided with defense.  He noted that since there is no affirmative authority from Tincher or other precedential cases, “barring such evidence as a matter of law, the principles of Tincher counsel in favor of its admissibility”.

As is evidenced by the above arguments, there has been virtually no consensus from the Pennsylvania bar on the practical application of Tincher.  Over the last year there have been numerous instances of courts throughout the state struggling with the legal implications.  A close reading of all the recent products liability opinions is a useful tool in predicting how the courts will handle your products liability issue.  Thanks to Remy Cahn for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Buyer Beware: No Duty to Inform Purchaser of Safety Features (PA)

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Despite acknowledging a lack of safety features, the District Court for the Eastern District of Pennsylvania recently ruled in favor of a machinery seller, dismissing negligence claims for selling a forklift without safety features in the case of Morello v. Kenco Toyota Lift.

Defendant Kenco Toyota Lift sold a forklift to Jet Plastica, a manufacturer of plasticware. Plaintiff Joseph Morella worked for Jet Plastica and injured his leg when a forklift driver by a co-worker struck him. Morella used Kenco, arguing it had an obligation to inform the buyer that safety features should have been included in the purchase. Judge Kearney rejected this argument, stating Morello’s theory would require that machinery salespeople know and anticipate “a wide range of conduct in their buyer’s dynamics based largely on speculation,” and ultimately deciding that Kenco was not negligent in selling the forklift without the optional backup alarms, strobe lights, and rearview mirrors.

Morello also argued that the need for safety features for forklifts has been recognized by many industry safety authorities and standard setting organizations. Judge Kearney also rejected this argument, citing a case in which the court held that industry standards have no bearing on the issue of whether a duty was owed, and that such standards may instead be admissible on the issue of standard of care.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information.

It’s Only Necessary to Allege the Lawnmower Exploded (PA)

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In Barton v Lowes Home Centers Inc, 2015 PA Super 203, the Superior Court of Pennsylvania held that a products liability plaintiff who alternatively pleads design and manufacturing defects and failure to warn has sufficiently pleaded a products liability claim, and that the plaintiff does not need to disprove or foreclose non-defective reasons for the product’s causing of injury at the pleadings stage.

Barton’s lawnmower exploded.  The lawnmower, that included an engine manufactured by Kohler, was manufactured by Husqvarna Consumer Outdoor Products and sold by Lowe’s.  Barton alleged that, after using a lawnmower for the first time and storing it in his barn, the engine ran too hot, melting fuel lines and causing the lawn mower to explode and destroying the barn.

Lowe’s, Husqvarna, and Kohler (“Appellees”) filed preliminary objections to Barton’s third amended complaint, alleged that Barton had failed to state a viable products liability cause of action under theories of strict liability, negligence, and breach of implied warranty.  The trial court granted Appellees’ preliminary objections, finding that the complaint failed to state a claim for strict liability by failing to allege the existence of a defect in the lawn mower.

Barton filed a timely appeal in which he challenged the trial court’s order sustaining Appellees’ preliminary objections.  On appeal, the superior court reversed, ruling that the trial court applied too onerous a standard to Barton’s third amended complaint.  “The trial court seems to suggest that a plaintiff can only have a design defect action or a manufacturing defect action [Restatement (Second) of Torts, §] 402A [(1965)], but not both.  In fact, it is accepted practice for a plaintiff to proceed under more than one defect theory.”  Accordingly, Barton’s third amended complaint, expressly alleging both design and manufacturing defects as well as failure to warn defects, was sufficient to survive preliminary objections.   The superior court explained,

Experience teaches that when a brand new lawnmower catches fire or explodes after its first use, it could be the result of a defect in its design or manufacture, or in the failure of the retailer or manufacturer to provide proper warnings as to its use or maintenance.  A more precise identification of the design defect, manufacturing defect or failure-to-warn defect is a matter for discovery and reports from experts (and perhaps a fire marshal).  But in a complaint, it is only necessary to state the material facts in a concise and summary form.

The court further ruled that Barton sufficiently pleaded his breach of warranty claim. The trial court defined the lawn mower’s ordinary purpose too narrowly in requiring appellant to plead that the lawn mower was unfit to cut grass, ruling that the proper standard for an implied warranty was that goods perform in the way that such goods are expected to perform, including not bursting into flames after first use.  Finally, Barton’s negligent design/manufacture claims were also properly stated.   Barton adequately alleged that appellees had a duty to provide adequate instructions for the mower’s use and maintenance, since the inclusion of instructions gave the mower greater utility and the lack of same increased the risk of harm.  Thanks to Hillary Ladov for her contribution to this post.  Please email Brian Gibbons with any questions.

PA Products Law Continues to Develop as Federal Courts Nix Strict Liability for Medical Devices

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In a recent decision levied in the wake of Tincher v. Omega Flex, Inc., the United States District Court for the Western District of Pennsylvania concluded that Pennsylvania products law does not impose strict liability on medical devices such that claims of design defect, manufacturing defect and failure to warn are inapplicable.

In Cogswell v Wright Medical, plaintiff Roy Cogswell sued the manufacturer of his failed hip replacement after complications caused him to experience continuous pain and undergo additional surgeries.  More specifically, Cogswell alleged that defendant Wright Medical Technology, Inc. was strictly liable for his ongoing hip condition on theories of, among other things, design defect, manufacturing defect and failure to warn.  After removing the case to the United States District Court for the Western District of Pennsylvania, however, Wright Medical objected to Cogswell’s products claims, arguing that the hip replacement falls into a class of “unavoidably unsafe” products that social utility inoculates from strict liability.

Operating in the post-Tincher world of Pennsylvania products law, Judge Cathy Bissoon dutifully considered the Restatement (Second) of Torts to predict whether Pennsylvania’s state courts would subject medical devices to strict liability.  In particular, Judge Bissoon focused her attention on Comment k to Section 402(a) of the Second Restatement that had previously been interpreted by Pennsylvania jurists to except prescription medications from strict liability.  Even though Judge Bissoon noted that this aspect of the Restatement had not been previously interpreted in the context of medical devices, she ultimately adopted the Superior Court’s statement in dicta that there is “no reason why the same rationale applicable to prescription drugs may not be applied to medical devices” as both are inherently risky and beneficial to society.

All told, Cogswell is an interesting decision for Pennsylvania insofar as it continues to reflect the federal courts’ adherence to Tincher while also indicating that the Second Restatement’s pyrrhic victory in many ways stagnated the Commonwealth’s development of fundamental concepts in products law.  As a result, Cogswell implicitly confirms the unfortunately unpredictable cycle of products jurisprudence in Pennsylvania where there is considerable delay between the federal courts’ preliminary consideration of novel concepts and the Commonwealth’s eventual endorsement or rejection of the same.  Thanks to Adam Gomez for his contribution.  Please email Brian Gibbons with any questions.

Back to the Future: 3rd Circuit Relents on Interpretation of PA Product Liability Law

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In DeJesus v. Knight Industries, the Third Circuit revisited the continuing debate between the Third Restatement’s modern view of product liability law and the Commonwealth’s unique and, at times, questionable interpretation of Section 402(a) of the Second Restatement.  In Dejesus, plaintiff was injured when an allegedly defective lift table designed by Knight Industries caused another piece of machinery to fall on him.  Plaintiff argued that Knight Industries defectively designed the lift table by failing to include appropriate audio or visual warnings that would alert users of the risk of falling objects.  On summary judgment, however, the United States District Court found that the evidence failed to sufficiently establish plaintiff’s theories under the Restatement (Third) of Torts that requires product manufacturers to take reasonable steps in safeguarding against foreseeable risks of harm.

For all intents and purposes, the conventional appeal to the Third Circuit that followed should have been denied in light of the Court’s long-standing belief that the Third Restatement dictates Pennsylvania product liability law.  Nevertheless, while the appeal was pending, DeJesus benefited from the highly anticipated decision in Tincher v. Omega Flex where Pennsylvania’s Supreme Court unambiguously rejected the application of the Restatement’s reasonableness standard in favor of a bespoke interpretation of Section 402(a).  In deference to the Commonwealth, therefore, the Third Circuit finally reversed its position on the primacy of the Third Restatement and found that further proceedings would be needed to determine whether Knight Industries’s alleged lack of warnings could meet the Tincher standard.

All told, the Third Circuit’s ruling in DeJesus is not a watershed comment on the substance of Pennsylvania’s product law.  However, past Pennsylvania product cases were plagued by inconsistent results, depending on whether the case was venued in federal court.  In the wake of DeJesus, it appears that the Third Circuit has brought the two judicial systems into sync as litigants now begin to explore how exactly Tincher will impact product liability law in Pennsylvania.

Thanks to Adam Gomez for his contribution.  Please email Brian Gibbons with any questions.