Who would have thunk it , but bed rails are apparently rather dangerous for the elderly and strangling deaths are somewhat common. This has resulted in a rash of new medical malpractice/product liability/negligence claims. As this article makes clear, one of the interesting questions raised in the claims is whether bed rails are a consumer product or a medical device. The answer, which is uncertain, is significant as medical devices are generally afforded greater legal protections than mere consumer products; medical devices are also more highly regulated.
For more information about this post, please contact Bob Cosgrove at .
The N.J. Appellate Division recently considered the factual foundation required to admit opinion testimony in a case involving the alteration of heavy machinery.
In Carneiro v. John Deere Dubuqueworks, plaintiff was struck by a backhoe while replacing water pipes at a construction site. Plaintiff was employed by defendant, Central Pipes, that was hired by defendant, P.M. Construction (“P.M.”), the general contractor and owner of the backhoe. P.M. had purchased the backhoe from Jesco, Inc. five years prior. At the time of purchase, P.M asked Jesco to install an “alternate lever arrangement” for the backhoe arm controls. Of significance, the manufacturer of the equipment was granted summary judgment earlier during discovery and the plaintiff settled his claims against P.M. and Jesco so the sole issue being tried was the allocation of liability between P.M. and Jesco.
The operator of the machine testified that when he rotated his seat to face the front of the bucket-loader, it came in contact with the lever, which caused the backhoe’s arm to strike the plaintiff. Jesco’s expert found that the levers were deliberately modified as they were positioned three inches closer to the operator then when Jesco had made its changes to the original design of the control console. In addition, the operator’s seat showed signs that it had been scraped by the lever multiple times. A Jesco employee who inspected the backhoe after the incident also testified that the levers were out of alignment.
P.M. argued that there was no evidence to support the opinion of Jesco’s expert that P.M. modified the lever system, as the scrape marks could have been etched subsequent to the subject accident. Jesco responded that if the jury found that the original modifications were proper, there would be strong circumstantial evidence that P.M. performed a subsequent alteration.
The jury found P.M. 95% liable for plaintiff’s injuries. The trial court noted that the jury received a lot of information regarding the levers. It denied P.M.’s motion for judgment notwithstanding the verdict, finding that it was not unreasonable for the jury to find that the levers were modified in some way by P.M. P.M. appealed asserting that the expert opinion was unsupported by the factual record.
The Appellate Division upheld the jury verdict, finding an adequate factual foundation as Jesco’s expert performed a personal inspection of the backhoe, reviewed the relevant discovery and rendered his opinion within a reasonable degree of engineering probability. It also found no error in the jury instruction that the backhoe operator’s negligence could be considered in context of Jesco’s claim that P.M. failed to provide proper site supervision.
Thanks to Andrew Marra for his contribution of this post. If you have any questions or comments, please email Paul at .
Steven Domalewski, age 12, was injured when struck by a batted ball while pitching in a PAL game on June 6, 2006. The line drive struck him and induced a commotio cordis event that sent Domalewski’s heart into ventricular fibrillation. This catastrophic condition is triggered by the confluence of four factors: (1) a blow delivered at a precise moment in the cardiac cycle; (2) within a tight range of speeds; (3) to the chest wall directly over the silhouette of heart; and (4) by a hard object, in this case, a batted baseball.
The Wayne PAL employees and volunteers came to Domalewski’s aid almost immediately, by both calling 911 and initiating CPR until the trained first responders took over young Steven’s care. Though the Wayne PAL owned an automated external defibrillator (“AED”), it was never used on Domalewski while manual CPR efforts continued on the field by a coach, bystander and first responders. However, the trained and certified first responders did not use their AED on Domalewski while initially working on him, and he was later cardioverted only after he was placed inside the ambulance that responded to the scene.
Domalewski survived the accident, which was statistically unlikely, but suffered a severe hypoxic ischemic brain injury. As a result, Steven requires 24 hour care and highly specialized medical treatment. His parents commenced suit against Hillerich and Bradsby Co. d/b/a Louisville Slugger (“H&B”) and Little League Inc. (“LLI”), H&B for manufacturing an allegedly defective baseball bat, and LLI for granting H&B the license to stamp the bat “approved for play in Little League” allegedly without performing any safety tests before such approval was granted. H&B and LLI, in turn, commenced a third party action against the Wayne PAL claiming that it was grossly negligent in failing to use its available AED, failing to have a written safety plan and failing to have proper field dimensions.
After the close of intensive and lengthy discovery, the Wayne PAL moved for summary judgment based New Jersey’s Charitable Immunity Act. The court granted the Wayne PAL’s motion and held that the organization fulfilled its required duty of care when it summoned emergency help and that, even if true, the failure to have a written safety plan and proper field dimensions did not constitute gross negligence or cause the plaintiff’s accident and injuries as a matter of law.
After the Wayne PAL’s dismissal, the plaintiff, H&B and LLI reached a settlement for $14,500,000 that made national headlines and was reported, for example, in the New York Times and ESPN. No appeal of the summary judgment decision in favor of the Wayne PAL is anticipated.
If you have any questions or comments about this post, please email Paul at .
Products liability law in Pennsylvania has become increasingly unpredictable. In the last three years, the Third Circuit has twice opined that the state Supreme Court is likely to adopt provisions of the Restatement (Third) of Torts, which introduces the concept of negligence into products liability law. However, the state Supreme Court has not directly addressed this issue, thus, the Restatement (Second) Torts appears to remain controlling for state courts. Unlike the Third Restatement, the Second Restatement states that a defendant will be liable for any defective product that is unreasonably dangerous to the product’s user, which does not include the concept of negligence. Therefore, the products liability law parties will be subject to in Pennsylvania depends entirely on whether the federal or state courts have jurisdiction in the matter. Further, since these laws are in conflict, the rights and responsibilities of each of the parties will differ depending on which forum is selected for the case. Getting any clarity from the state Supreme Court in the near future appears unlikely. Therefore, for now, it appears this unpredictable aspect of Pennsylvania law will remain.
Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Bob Cosgrove at .
In Sikkelee v. Precision Airmotive Corporation et al, an aircraft accident at the Transylvania County Airport in Brevard, North Carolina resulted in the death of David Sikkelee. The Plaintiff alleged that the accident was caused by a faulty carburetor and sued multiple parties involved in the manufacturing of the plane’s engine. Among the defendants was Lycoming Engines, the original engine manufacturer and division of industry giant AVCO Corporation. The plaintiff asserted negligence and strict liability claims to which Lycoming moved for summary judgment.
Judge John Jones of the Middle District of Pennsylvania affirmed in part and denied in part the defendant’s motion. First, the court held Lycoming was a de facto manufacturer of the allegedly defective engine despite the fact the engine was subsequently modified (the installation of the faulty carburetor) by a separate company after it left Lycoming’s control. The court reasoned that even though Lycoming did not physically modify the engine, Lycoming was in exclusive control of the design and manufacture of the replacement component parts that were installed in the engine. Thus, this would subject Lycoming to potential products liability under PA law, and plaintiff’s claims should not be dismissed.
Additionally, the court denied the defendant’s motion to dismiss the plaintiff’s negligence claims based, inter alia, on the following. Lycoming moved for summary judgment contending that the plaintiff failed to submit evidence that the defendant breached the applicable standard of care, thus, plaintiff’s negligence claims could not stand. The court had previously held that federal standards of care promulgated by the FAA apply in aviation cases such as this one and can be utilized by the plaintiff to show breach of duty. Since the plaintiff had submitted evidence of the breach of these federal standards, the court would not dismiss plaintiff’s negligence claims.
Thanks to Colleen Hayes for her contribution to this post.
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 .
The Pennsylvania Supreme Court recently expanded the separate-disease rule in asbestos cases beyond the archetypal application that permits plaintiffs to prosecute one suit for non-malignant illnesses and one suit for malignant illnesses that may develop following the initial litigation. In the case of Daley v. A.W. Chesterton, et al, Herbert Daley and his wife filed suit in 2005 after he had contracted malignant pleural mesothelioma. However, Daley had previously sued for asbestos-related lung cancer in 1990. Consequently, the Philadelphia Court of Common Pleas granted summary judgment for the defendants in the 2005 case, noting that the separate-disease rule established by the 1992 Pennsylvania Supreme Court case of Marinari v. Asbestos Corp. did not allow for separate asbestos suits where each arises out of a distinct malignant illness. The Superior Court rejected the trial court’s interpretation of the separate-disease rule and vacated the order below because they considered the limitation reminiscent of the very dangers Marinari was designed to prevent.
On appeal, the Pennsylvania Supreme Court considered whether the Marinari separate-disease rule permits plaintiffs to bring separate lawsuits for more than one malignant disease allegedly caused by the same exposure to asbestos. In a 6-1 decision, Justice Debra Todd acknowledged that excerpts from cases decided after Marinari seem, in isolation, seem to advance an application of the “two-disease” rule espoused by the trial court. However, Justice Todd looked to the underlying rationale for the Marinari decision and read the rule as a wholesale repudiation of the then-existing “single action doctrine” that required plaintiffs to raise claims for all current and future damages they might develop as the result of exposure to asbestos. According to Justice Todd, the separate-disease rule was concerned with preventing “anticipatory lawsuits, protracted litigation, evidentiary hurdles, speculative damages, and excessive or inadequate compensation”— the same apprehensions that plague “situations where an asbestos plaintiff is diagnosed with a malignant disease, and later diagnosed with a separate and distinct malignant disease caused by the same asbestos exposure.” Thus, where denying the plaintiff relief for separate malignant illnesses creates the same unease that spawned the separate-disease rule in the first instance, the plaintiff may be afforded its benefit and given the opportunity to litigate them separately. Good news for asbestos plaintiffs, but bad news for insurers.
Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Bob Cosgrove at .
