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Court Crier: Product Liability

In Merck Sharp & Dohme Corporation v. Albrecht, the United States Supreme Court addressed the “clear evidence” defense for state-law, failure-to-warn cases against drug manufacturers when the drug manufacturers believed the Food and Drug Administration (FDA) would not have approved a change to a drug’s warning label. The Court held that the drug manufacturer failed to demonstrate “clear evidence” that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning. The Court further held that a judge, rather than the jury, must decide, as a matter of law, whether the state failure-to-warn laws irreconcilably conflict with FDA labeling regulations made under Congress’s delegated authority, and are therefore pre-empted. (May 20, 2019)

In In re Asbestos Products Liability Litigation, the United States Court of Appeals for the Third Circuit addressed whether the multidistrict litigation courts’ dismissal of three consolidated maritime asbestos injury cases for lack of personal jurisdiction was proper. The court held that the multidistrict litigation court abused its discretion in dismissing the merchant mariners’ cases for lack of personal jurisdiction because the shipowner-defendants waived their personal jurisdiction defenses when they filed an answer in the Northern District of Ohio that failed to preserve such a defense. Thus, the court revived the 30-year-old cases and permitted them to proceed on the merits. (April 9, 2019)

In In re: Asbestos Products Liability Litigation, the United States Court of Appeals for the Third Circuit addressed whether the multidistrict litigation courts’ dismissal of three consolidated maritime asbestos injury cases for lack of personal jurisdiction was proper. The court held that the MDL court abused its discretion in dismissing the merchant mariners’ cases for lack of personal jurisdiction because the shipowner-defendants waived their personal jurisdiction defenses when they filed an answer in the Northern District of Ohio that failed to preserve such a defense. Thus, the court revived the 30-year-old cases and permitted them to proceed on the merits. (April 9, 2019)

In Starr Surplus Lines v. Mountaire Farms, the United States Court of Appeals for the First Circuit addressed the viability of breach of warranty and strict product liability claims under Maine law concerning the recall of chicken products following a salmonella outbreak. The court refused to find the chicken “defective” in the absence of any allegation that the chicken was contaminated with a type of salmonella that would persist despite proper cooking. (April 3, 2019)

In Walsh v. BASF, the Supreme Court of Pennsylvania granted allowance of appeal to review: (1) whether, when evaluating scientific evidence under the Frye standard, trial courts are permitted to act as “gatekeepers” to ensure the relevance and reliability of scientific studies offered by experts to support their opinions by scrutinizing whether those studies actually support their opinions and (2) whether a trial court may review an expert’s opinion extrapolating from a broad class of products and injuries to a specific product and injury, thereby eliminating the plaintiff’s burden to show product-specific causation of the plaintiff’s specific injury. (March 5, 2019)

In Knox v. Metalforming, Inc., the United States Court of Appeals for the First Circuit addressed the personal availment element of specific personal jurisdiction where a manufacturer’s product allegedly injured an individual in Massachusetts. The manufacturer, who challenged jurisdiction, resides in Germany and maintains no operations in the United States, but sells its products through a separate and independently owned U.S. distribution company. Holding that the manufacturer had personally availed itself of the privilege of conducting activities in Massachusetts, the court reasoned that the manufacturer’s voluntary acts led to a regular flow or regular course of sales, and more than that, in the Commonwealth. The court explained that, over 16 years, the manufacturer sold 45 machines and provided 234 parts to purchasers in Massachusetts leading to nearly $1.5 million of Massachusetts sales, individually approved and manufactured according to purchaser-provided specifications each of the machines it sold to Massachusetts purchasers, and required the inclusion of materials accompanying the sale of each machine that instructed the purchaser to contact the manufacturer directly when purchasing replacement parts or to obtain assistance with troubleshooting and fixing problems, which deliberately opened, and kept open, channels that established a direct link between the manufacturer and its purchasers in Massachusetts. (January 30, 2019)

In Sikkelee v. Precision Airmotive Corporation, the Third Circuit Court of Appeals addressed whether federal law that required approval for changes in aircraft design preempted product liability claims under state law. The court held federal law did not preempt state product liability claims, because the engine manufacturer provided no evidence that established that the Federal Aviation Administration would have not allowed the changes to the engine’s design urged by the plaintiff and therefore it was not impossible to comply with both the state and federal laws. (October 25, 2018)

In Dunlap v. Federal Signal Corporation, the Superior Court of Pennsylvania addressed whether a defendant manufacturer in a products liability claim concerning an emergency vehicle siren was entitled to summary judgment where the plaintiffs’ expert opined that an alternative design would be safer to the plaintiffs, but not to the general public. The court held that showing the alleged alternative design would be at least as safe for the general public was an element of the claim and required expert testimony. (August 20, 2018)

In Willner v. Vertical Reality, Inc., the Supreme Court of New Jersey addressed whether the trial court was required to give a jury instruction that evidence of a product manufacturer’s conduct was irrelevant when the only claim was for a manufacturing defect. The court held that while a manufacturer’s conduct is irrelevant to a manufacturing defect claim, the trial court’s failure to give a specific charge on that point was harmless error. Furthermore, the court held that the product manufacturer was not obligated to pay attorney’s fees under the offer of judgment rule because its share of the total verdict was less than the offer of judgement. (August 15, 2018)

In In Re Accutane Litigation, the Supreme Court of New Jersey addressed the proper standard to determine the admissibility of scientific evidence in New Jersey. The court adopted the factors set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court emphasized that it expects the trial court to assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion. The court further explained that although a trial court’s decision to admit or exclude evidence is subject to an abuse-of-discretion standard, a reviewing court owes “somewhat less deference” to determinations regarding expert testimony. (August 1, 2018)

In McAlwee v. Westchester Health Associates, PLLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a hospital could be compelled to produce its employment contract with a physician in a medical malpractice suit. The court noted that while there should be full disclosure of all matter material necessary in the prosecution or defense of an action, a party is not entitled to uncontrolled and unfettered disclosure and the trial court has the power to regulate this discovery and prevent abuse. Considering that the physician at issue did not treat the patient and was not required to supervise the treating physician, the court found that the employment contract was not material and necessary to a viable claim. As a result, the hospital was not compelled to produce this contract in discovery. (July 5, 2018)

In Walsh v. BASF Corporation, the Superior Court of Pennsylvania addressed the admissibility of expert opinion under the Frye standard. The court explained that the Frye standard only applies to whether the relevant scientific community has generally accepted the principles and methodology the scientist employs, not the conclusions the scientist reaches. The court, therefore, held that where an expert uses a generally accepted scientific methodology, the Frye standard does not bar the expert, regardless of the conclusions. The court noted that the fact that experts reach different conclusions goes to the weight of the evidence, not to its admissibility. (June 20, 2018)

In Aracena v. BMW of North America, LLC, the New York Supreme Court, Appellate Division, 2d Department considered whether a consumer could maintain causes of action to, among other things, recover damages for breach of written and implied warranties pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act against a regional distributor of BMW automobiles. The court held that the distributor, by having performed all warrantied repairs in accordance with the terms of the warranty, did not breach any warranty, and that the slogan “The Ultimate Driving Machine” “is not a specific representation regarding the vehicle upon which” the consumer could rely. The court also held that there was no breach of the implied warranty because, absent personal injury, no implied warranty will extend from a manufacturer to a remote purchaser not in privity of contract. (March 7, 2018)

In Shuker v. Smith & Nephew, the United States Court of Appeals for the Third Circuit held that the 1976 Medical Device Amendments to the Federal Food, Drug and Cosmetic Act, expressly preempts and precludes product liability claims related to the design and manufacture of higher risk medical devices that were subject to “Class III pre-market approval” by the FDA. The court further held that, when a medical device is comprised of multiple components, some of which were subject to Class III approval and some of which were subject to lesser scrutiny (Class I or II), the court should analyze product liability claims on a component-by-component basis and only preempt and dismiss claims pertaining to injuries caused by a Class III component. Finally, the Court held that related negligence claims – including claims that the medical device manufacturer negligently marketed the medical device at issue for “off label” use – are not federally preempted and may proceed even as to Class III components. (March 1, 2018)

In Tincher v. Omega Flex, Inc., the Superior Court of Pennsylvania determined that the trial court's jury instructions, based on Azzarello v. Black Bros., 391 A.2d 1020 (Pa. 1978), warranted a new trial in a strict product liability action. The trial court had held that, even though its jury instructions were based on the prior Azzarello definition of product defect, it was harmless error because the jury heard evidence about risk and utility. The Superior Court clarified that the jury could not have rendered a verdict based on the risk/utility standard because it was never instructed to make findings under that standard and remanded for a new trial. (February 16, 2018)

In Town of Westport v. Monsanto Company, the United States Court of Appeals for the First Circuit addressed whether a component manufacturer should have reasonably known that there was a risk that its component would volatize out of the product at issue at levels that were harmful to human health so as to meet the foreseeability standard for a failure-to-warn claim under Massachusetts breach of implied warranty of merchantability law. The Court explained that regardless of whether it was known that similar volatilization would occur from a dissimilar product, the manufacturer could not have known the risk of harm to human health at the time the product was originally employed because even today there are no scientific studies that verify the existence of such risk. (December 8, 2017)

In Pantazis v. Mack Trucks, Inc., the Appeals Court of Massachusetts addressed a claim for negligent failure to warn by the estate of a dump truck driver who was killed when his clothes tangled in a spinning universal joint used to tilt the dump body of the truck. The estate sued the maker of the truck body and the maker of the assembly that had been separately purchased and attached to the truck body, although both parts were individually non-defective, on the grounds that the producer of the component could have a duty to warn of dangers raised by a finished product. The court concluded that, here, the potential danger arose from the assembly of the component parts (not themselves defective) into the finished system, and as such the manufacturers had no duty to warn assemblers or end users of the risks of the finished systems. The court further concluded that no exception to this “component parts doctrine” was warranted on the grounds that the injury was foreseeable(November 27, 2017)

In Siragusa v. Conair Corporation, the Supreme Court of New York, Appellate Division, 2d Department, considered when a court should grant a leave to amend pleadings in a product liability actionThe maker of a handheld stick blender sought contribution and indemnity from the parents of a child injured by the blades of the blender, which was plugged in but not running. The court denied the request for leave to amend because the amendment was palpably insufficient and patently devoid of merit. The blender maker’s claim of negligent supervision of the child is not a basis for cognizable claims for contribution or indemnification. (September 20, 2017)

In In Re Zoloft (Sertraline Hydrocholride) Products Liability Litigation, the United States Court of Appeals for the Third Circuit addressed a Daubert challenge to expert testimony on general causation involving claims of drug-induced birth defects. The court found the expert’s testimony inadmissible for lack of statistically significant findings, an inconsistent methodology, and no other indicia of reliability. (June 2, 2017)

In Renninger v. A&R Machine Shop, the Superior Court of Pennsylvania addressed whether a manufacturer may introduce evidence of present industry standards in defense of a products liability lawsuit under the risk utility test. The court allowed a manufacturer of casters to introduce industry standards to the jury to refute the allegation that casters were negligently designed or utilized. (April 11, 2017)

In Caccese v. Liebherr Container Cranes, Ltd., the New York Supreme Court, Appellate Division, Second Department, addressed a longshoreman’s products liability claim stemming from injuries allegedly sustained due to a negligently designed crane position monitoring system. “When an action is pleaded in strict products liability, breach of warranty, or negligence, the injured must prove that the alleged defect is a substantial cause of the events which produced the injury.” The court determined that the longshoreman failed to establish that the crane actually malfunctioned at the time of his accident so as to demonstrate that any defective design was a substantial factor in causing his injury. (April 5, 2017)

In In re Fosamax Products Liability Litigation, the United States Court of Appeals for the Third Circuit addressed whether the plaintiffs’ failure to warn claim was preempted by federal law on the basis that the FDA would not have approved the labeling the plaintiffs contended was necessary. The court held that preemption in that context was an affirmative defense, which the defendant was required to prove by “clear evidence,” and summary judgment was not warranted because there was sufficient evidence for a jury to conclude the FDA would have approved the suggested label. (March 22, 2017)

In High v. Pennsylvania Supply, Inc., the Superior Court of Pennsylvania addressed who should decide in a strict liability case whether a product is in a defective condition. The court held “the question of whether a product is in a defective condition unreasonably dangerous to the consumer is a question of fact that should be generally reserved for the factfinder” and not a question of law reserved for the judge. (January 13, 2017)

In Papp v. Fore-Kast Sales Company, Inc., the United States Court of Appeals for the Third Circuit reversed a remand to state court by holding that the federal officer removal statute applied to asbestos exposure claims against the defendant government contractor. The court further held that the government contractor had a colorable federal defense to the plaintiff’s failure-to-warn claim in the form of the military contractor defense, which asserts that: (1) the government approved specifications for a product; (2) the equipment conformed to those specifications; and (3) the contractor warned the government about dangers known to the contractor but unknown to the government. (November 22, 2016)

In Neidner v. Ortho-McNeil Pharmaceutical, Inc., the Appeals Court of Massachusetts addressed whether the manufacturer of a contraceptive patch was liable for breach of warranty, failure to warn, design defects, negligence, and violations of the Consumer Protection Act in the death of a seventeen year old woman, by allegedly failing to adequately warn of the dangers of blood clots. The court held that the manufacturer was not liable because it provided adequate, numerous, and comprehensive warnings, and the product did not contain any design defects. (September 21, 2016)

In Webb v. Volvo Cars of North America, LLC, the Superior Court of Pennsylvania addressed the admissibility of government standards in strict products liability after the Supreme Court of Pennsylvania’s ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). After the dismissal of the plaintiff’s negligence claims, the plaintiff objected to a jury instruction on the remaining strict liability claim that permitted consideration of evidence of the defendant’s compliance with government standards. The court held that: (1) Tincher did not overrule the prohibition against evidence of compliance with federal and industry standards in strict liability cases; (2) the instruction that permitted the jury to consider federal and industry standards in strict liability constituted reversible error; and (3) the trial court should have issued a cautionary instruction to the jury to disregard evidence of government standards after the dismissal of the negligence claims. (September 9, 2016)

In Kaufman v. CVS Caremark Corporation, the United States Court of Appeals for the First Circuit addressed whether the Federal Food Drug and Cosmetic Act (FDCA) preempted a consumer’s claim that a pharmacy’s label on a Vitamin E dietary supplement violated the New York Consumer Protection Act (NYCPA). The consumer plaintiff claimed the label touts the supplement as supporting “heart health,” and that there no scientifically valid studies show that those statements are both truthful and not misleading. The court held the consumer’s claims were not preempted because the complaint plausibly described conduct that both failed to comply with FDCA labeling requirements and violated the NYCPA. (September 6, 2016)

In Steinberg v. Sahara Sam's Oasis, LLC, the New Jersey Supreme Court addressed the viability of a personal injury claim brought by a patron of a recreational waterpark who conceded that he signed a general waiver of liability that extinguished his right to sue in negligence. The court held that, although New Jersey’s Carnival-Amusement Rides Safety Act does not itself create a private right of action, the proprietor’s violations of the Act, coupled with a failure to instruct the patron on the proper use of the ride, in the aggregate stated a claim for the tort of gross negligence. (August 23, 2016)

In In Re Reglan Litigation, the Supreme Court of New Jersey addressed whether state law failure-to-warn claims for drug labeling under the New Jersey Product Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, are preempted by the Federal Food, Drug and Cosmetic Act, 21 USC 301-399f (FDCA). The court held that the state law failure-to-warn claims are not preempted because the generic drug manufacturers did not conform labels on generic drugs to the labels of brand-name drugs in violation of the FDCA’s  sameness doctrine and, therefore, did not meet the requirements for safe harbor protection under the FDCA. (August 22, 2016)

In Quilez-Velar v. Ox Bodies, Inc., the United States Court of Appeals for the First Circuit addressed whether an expert was allowed to testify regarding an alternative design for a trash truck underride guard that contributed to a fatal accident, and whether under Puerto Rico law, the design company should be held jointly and severally liable for the totality of the damages award. The court held that the expert was permitted to testify but certified to the Puerto Rico Supreme Court the question on the extent of the designer’s liability for the entire damages award. (May 9, 2016)

In Sikkelee v. Precision Airmotive Corporation, the United States Court of Appeal for the Third Circuit clarified that neither the Federal Aviation Act nor any federal regulations demonstrated a desire by Congress to preempt the field and eliminate state level products liability actions involving aircraft. The court, therefore, held that subject to traditional principles of conflict preemption, aircraft products liability cases involving design or manufacturing defects may proceed under state law. (April 19, 2016)

In Williamson-Green v. Equipment 4 Rent, Inc., the Appeals Court of Massachusetts addressed whether an equipment rental company was liable for punitive damages in relation to the death of an inspector who died when the machine he was perched on tipped over and crashed. The court held that there was sufficient evidence to show that the company was grossly negligent, and therefore, the award of punitive damages was proper. (March 3, 2016)

In Barton v. Lowe’s Home Centers, Inc., the Superior Court of Pennsylvania addressed whether a purchaser of a lawn mower may simultaneously maintain a design defect action and a manufacturing action. The court held that a purchaser can proceed under multiple defect theories. It is a matter for discovery and expert reports to identify the precise cause of the lawn mower caught fire. (September 24, 2015)

In Becerra v. Promenade Apts., the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether Industrial Code (12 NYCRR) § 23-1.5(c)(3) could support a Labor Law § 241(6) claim brought by a construction worker injured due to equipment left in disrepair.  The court noted that 12 NYCRR § 23-1.5(c)(3) requires that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” and that this creates an affirmative duty sufficient to support a labor law claim brought by an injured worker. Although 12 NYCRR § 23-1.5(c)(3)  does not explicitly require guards for angle grinders, the court found the mention of “condition of equipment and safeguards” to be sufficiently specific to create an affirmative duty supporting a cause of action. (March 19, 2015)

In In re New York City Asbestos Litigation, the New York Supreme Court, Appellate Division, First Department,held that a manufacturer, who moves for summary judgment on causation, bears the burden of producing a specific factual basis to support its claim that it was impossible for the plaintiff to have encountered its product. (December 11, 2014)

In Tincher v. Omega Flex, Inc., the Supreme Court of Pennsylvania addressed the theory of strict products liability in Pennsylvania.  The Court expressly overruled its previous decision in Azzarello v. Black Brothers Company and held that a plaintiff pursuing a cause of action upon a theory of strict liability in tort must prove that the product is in a “defective condition.”  The plaintiff may prove defective condition by showing, by a preponderance of the evidence, either that (1) the danger is unknowable and unacceptable to the average ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.  Whether a product is in a defective condition is a question of fact that should only be determined by the court where it is clear that reasonable minds could not differ on the issue. Further, the Court declined to adopt Restatement (Third) of Torts: Products Liability despite the fact that certain principles contained therein informed the Court’s decision in this case. (November 19, 2014)

In Patel v. Karnavati America, LLC, the Superior Court of New Jersey, Appellate Division, addressed whether the court properly exercised specific personal jurisdiction over a product manufacturer located in India.  The court held that the single sale of a product to an independent corporation in India, even with the knowledge the product would be delivered to a New Jersey user, was not sufficient to exercise specific jurisdiction over the Indian manufacturer. (October 9, 2014)

In Cherilus v. Federal Express,  the Superior Court of New Jersey, Appellate Division, found that the manufacturer of a cargo lift, which was considered a specially-manufactured product that became an improvement to real estate, could invoke the ten-year statute of repose in a design defect case, even though the manufacturer did not install its specially-manufactured product.  The court also found that a maintenance company’s voluntary payment of settlement funds to the injured worker did not qualify as a “money judgment” that would give rise to a contribution claim against the manufacturer. (April 3, 2014)

In Manuel Reis, & C. v. Volvo Cars of N. Am., the New York Court of Appeals addressed whether the jury in a product design defect case was given the proper negligence charge.  The court held that the jury was improperly charged with the Common Law Standard of Care – Defendant Having Special Knowledge (PJI 2:15) because this standard applies to malpractice claims, which use a community standard of care rather than a reasonable person standard.  Defendants in malpractice cases are “held to the level of skill and care used by others in the community who practice the same profession.”  In negligence cases, however, the standard is based on the reasonable person such that, “if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner.”

In In re: Fosamax (Alendronate Sodium) Products Liability Litigation, the United States Court of Appeals for the Third Circuit, addressed whether state law claims against generic drug manufacturers were pre-empted by federal law.  The court held that the plaintiffs’ state law strict-products liability design defect claims were pre-empted by federal law under the doctrine of impossibility pre-emption, because the generic manufactures would not be able to comply with both requirements of federal law and state law simultaneously. (April 30, 2014)

In In re Denture Adhesive Cream Litigation, the Court of Common Pleas of Philadelphia County addressed the admissibility of the plaintiffs’ expert testimony on causation pursuant to Frye v. United States in a product liability action.  As a threshold matter, the court first determined that the plaintiffs presented a novel theory of causation linking exposure to the particular product with their alleged injuries subject to a Frye analysis.  The court concluded that the experts’ opinions did not meet the Frye standard for reasons including reliance on faulty epidemiological data, case reports, and clinical studies involving other products. (February 7, 2014)

In Dabaldo v. URS Energy, the Supreme Court of Delaware examined the application of Delaware’s two year statute of limitations to asbestos-related claims.  The court explained that Delaware is a multi-disease jurisdiction which means that each distinct asbestos-related disease is subject to its own statute of limitations.  Applying the discovery rule to the plaintiff’s 2009 claim for asbestosis, the court found that the limitations period did not begin to run until the plaintiff’s definitive diagnosis with asbestosis in 2007 notwithstanding his history of asbestos-related pleural disease.  In reaching its decision, the court clarified that the plaintiff was not making a claim based on his 1992 diagnosis with pleural disease which would have been barred by its own statute of limitations. (February 7, 2014)

In Lance v. Wyeth, the Supreme Court of Pennsylvania addressed whether pharmaceutical companies can be held liable under Pennsylvania products-liability law for negligent design and marketing of drugs.  Plaintiff argued that the diet drug Redux was so dangerous that it should never have been introduced or marketed.  For its part, Wyeth argued that pharmaceutical companies can only be held liable for manufacturing defects and inadequate warnings.  The Court held that pharmaceutical companies are not immune from negligent design claims.  Specifically, “pharmaceutical companies violate their duty of care if they introduce a drug into the marketplace, or continue a previous tender, with actual or constructive knowledge that the drug is too harmful to be used by anyone.” (January 14, 2014)

In Parr v. Ford Motor Co., the Superior Court of Pennsylvania addressed the admissibility of statistical evidence in an automobile product liability case.  The court held that, because the statistical studies involved a wide variety of accidents, injuries, and vehicles, the studies were not “substantially similar” to the subject accident and were therefore not relevant within the meaning of Pa. R.E. 401. (January 15, 2014)

In Stayton v. Clariant Corp., the Supreme Court of Delaware addressed whether a company’s executive’s deposition testimony that he did not “know of any reason why” the company would have altered the machinery that injured the plaintiff was sufficient to create a genuine issue of material fact precluding summary judgment. The court held that the testimony “[a]t best, . . . provides a mere possibility that [the company],” as opposed to someone else, may have altered” the machinery, which is insufficient to create a genuine issue of material fact. (January 2, 2014)

In Mutual Pharmaceutical Company, Inc. v. Bartlett, the United States Supreme Court addressed whether state-law design-defect claims that turn on the adequacy of a drug’s warnings are preempted by federal law. The Court found that federal law prohibited the generic drug's manufacturer from changing the drug's composition or label but that state law would require the manufacturer to do what the federal law forbids. Consequently, the state design defect claims were preempted by federal law. (June 24, 2013)

In State v. Keith R. Buckley, the Supreme Court of New Jersey held that a trial court, in its discretion, may permit the jury to hear evidence that a passenger would have survived a fatal automobile accident had he been wearing a seat belt, but that the court erred in failing to instruct the jury that such evidence was irrelevant to causation. The court also held that evidence regarding the alleged discrepancy between the utility pole’s location and the guidelines in the Roadway Design Manual was inadmissible on the issue of causation. (May 15, 2013)

In Katopodis v. Marvin Windows & Doors, the New York Supreme Court, Appellate Division, addressed the issue of when the statute of limitations expires on a cause of action for breach of an express warranty. The court held that the applicable statute of limitations was four years, running from the date that the product was delivered. The claim was therefore time-barred even though the defendant had included a ten year warranty on the product. (April 25, 2013)

In Whiting v. CBS Corporation, the Appeals Court of Massachusetts addressed in an unpublished decision whether the plaintiff’s husband’s malignant mesothelioma resulting from his exposure to asbestos could be linked to exposure to Westinghouse turbines and Crane or Chapman valves in the engine and boiler rooms of the U.S.S. Guadalcanal, where the plaintiff’s husband had served.  The court concluded that the plaintiff could not prove causation where any insulation originally installed on the turbines would have been replaced in two overhauls that were complete before the plaintiff’s husband began his service. (To access the opinion click on the case link and search “Whiting” in the parties field) (February 25, 2013)

In Mayer v. Once Upon a Rose, the Superior Court of New Jersey, Appellate Division, addressed the issue of expert testimony in res ipsa loquitur cases.  The plaintiff was injured when a glass vase shattered that the defendant had in his exclusive control.  The court held that the plaintiff did not need to present expert testimony as to the shattered glass in order to survive a motion for directed verdict.  Instead, res ipsa loquitur creates a permissive presumption that if the defendant had exercised due care, the injury would not have occurred.  Because the average juror could deduce what occurred in this case, using common sense, no expert testimony was required. (January 30, 2013)

In Ford Motor Credit Company v. Mendola, the Superior Court of New Jersey, Appellate Division, held that under, certain circumstances, a claimant must present expert testimony to establish a prima facie cause of action for breach of express warranty. (July 24, 2012)

In Fisher v. Sexauer, the Superior Court of Pennsylvania addressed whether plaintiffs had produced evidence that the decedent’s exposure to asbestos satisfied the “frequency, regularity, and proximity” standard established by Eckenrod. The court concluded that because the decedent’s testimony failed to establish that he ever saw asbestos dust or inhaled dust on a “frequent or regular basis” and offered only speculation as to the extent of his exposure to asbestos, the plaintiffs did not satisfy the Eckenrod standard for asbestos claims. (May 29, 2012)

In Beard v. Johnson and Johnson, Inc., the Supreme Court of Pennsylvania held that a trial court conducting a threshold risk-utility analysis for a product in a design defect case is not restricted to considering the single use of a multi-use product that allegedly resulted in harm. (March 22, 2012).

In Kendal v. Hoffman-Laroche, Inc, the Supreme Court of New Jersey held that a judge may consider New Jersey’s Product Liability Act when deciding the timeliness of a lawsuit brought against a manufacturer for a failure to warn. The plaintiff argued that the statute of limitations should have been tolled because she was unaware the she had been injured by the defendant’s product as a result of inadequate warnings. Under the Product Liability Act, there is a presumption that warnings approved by the FDA are adequate. However, the court held the presumption is not conclusive and can be overcome by evidence. The plaintiff overcame the presumption that the defendant manufacturer’s warnings were adequate, and the suit was permitted, as the warnings did not specifically warn for the injuries Plaintiff alleged suffered. Thus, she was not on notice of the relationship between the defendant’s product and her alleged injuries. (February 27, 2012)

In Covell v. Bell Sports, Inc., the United States Court of Appeals for the Third Circuit addressed whether the trial court correctly charged the jury pursuant to the Restatement (Third) of Torts rather than the Restatement (Second) of Torts in a defective design and failure to warn case. The court predicted that Pennsylvania would adopt the Restatement (Third) of Torts in product liability cases. (July 12, 2011)

In Goodyear Dunlop Tires Operations, S.A. v. Brown, the United States Supreme Court, addressed whether a North Carolina court had jurisdiction over an Ohio tire manufacturer in relation to a fatal accident in Paris, France. The Court held that the tire company was not amenable to suit in North Carolina because the only connection to the forum was the fact that a small percentage of their tires were distributed in the state. (June 27, 2011)

In Roth v. Norfalco LLC, the United States Court of Appeals for the Third Circuit addressed whether the Hazardous Materials Transportation Act (HTMA) preempted a common law negligence and products liability action for personal injuries suffered by a worker during the unloading of a railway tank car filled with sulfuric acid. The court held that the structure and purpose of the HTMA preempts State common law claims if the cause of action seeks to impose design requirements upon a package or container qualified for use in transporting hazardous materials in commerce. (June 28, 2011)

In Bruesewitz v. Wyeth, the Supreme Court of the United States held that the National Childhood Vaccine Injury Act of 1986 preempts all design defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects. (February 22, 2011)

In Daniel v. Wyeth Pharamceuticals, the Superior Court of Pennsylvania addressed whether an award of punitive damages was appropriate in a Prempro case involving a plaintiff with breast cancer, and whether a new trial was warranted based on the subsequent testimony of the plaintiff's expert in another case. The court held that Wyeth's knowledge or strong suspicion by the mid-1970s that hormone therapy increased the risk of breast cancer, coupled with its later "failure and refusal to conduct adequate studies," was enough to support the jury's award of punitive damages, despite the Food and Drug Administration's prior approval of the Prempro package insert. As to the new trial issue, the court held that the expert's later testimony (that he could not give an opinion as to the cause of the breast cancer given the short duration of Prempro therapy) limited his ability to testify as to the type of cancer the Prempro had caused, but did not affect his opinion that Prempro had caused some type of cancer to grow because that testimony was supported by another expert. (February 7, 2011)

In Schmidt v. Boardman, the Supreme Court of Pennsylvania addressed the adoption of the product line exception to the general rule of successor non-liability in strict products liability cases, and whether a strict liability plaintiff must prove physical injury to recover for emotional distress. Although the court affirmed the trial court's decision to instruct the jury on the product line exception, the court indicated that it was willing to address the "question of whether the product line exception should be maintained in Pennsylvania" in a future case. As to the emotional distress claim, the court held that, in the strict liability context, recovery for emotional distress is limited to distress "proximately caused by contemporaneous physical impact." (January 24, 2011)

In Wright v. Aventis Pasteur, Inc., the Superior Court of Pennsylvania considered whether the Vaccine Act preempts all design defect claims against vaccine manufacturers relating to the use of thimerosal in vaccines. The court held that, while the Vaccine Act does not completely preempt design defect claims, it does require courts to conduct a case-by-case inquiry in order to determine whether a particular vaccine's side effects are unavoidable. (January 11, 2011)

In Actavis, Inc. v. Demahy, the Supreme Court of the United States granted certiorari to determine whether states are preempted, under the Supremacy Clause of the Constitution, from requiring additional safety information on a generic product label where the brand has not changed its label. (December 10, 2010)

In Betz v. Pneumo Abex LLC., et. al., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider a question related to the admissibility of expert testimony in a friction-product asbestos case. The question that the court agreed to consider is: "Did the Superior Court err in reversing the trial court's decision to exclude the testimony of Plaintiff's expert in this friction-product asbestos case?" (December 1, 2010) 

In Beard v. Johnson and Johnson, Inc., the Supreme Court of Pennsylvania granted a Petition For Allowance of Appeal to address the following questions:

1. To determine whether a product with more than one intended use had a design defect that rendered it defective as a matter of law, should a court undertake a risk-utility analysis relating only to the use that allegedly resulted in harm, or should it consider the risks and benefits of all intended uses?

2. On appeal from a trial court's legal determination regarding whether a product suffered from a design defect that rendered it defective, is the appellate court bound by the trial court's weight and credibility determinations, and may the appellate court only consider evidence that the trial court took into consideration in rendering its decision?
(November 24, 2010)

In Lewis v. CRC Industries, Inc., the Superior Court of Pennsylvania, applying New Jersey law, addressed whether a jury in a product liability case should be instructed on the limited role that a plaintiff's conduct plays when determining whether the product was defectively designed for purposes of comparative or contributory negligence. The court held that the principles of comparative and contributory negligence do not apply in a strict product liability action where a plaintiff is injured by a defective product while performing a job assignment at his or her workplace. The court also found that the plaintiff's conduct in a strict liability action was only relevant to the issue of causation and not to the application of the risk-utility analysis. (September 27, 2010)

In Reott v. Asia Trend, Inc., et al., the Superior Court of Pennsylvania addressed whether the trial court properly refused to grant Duane Reott and his wife, Patty Reott, a directed verdict on causation or, in the alternative, JNOV, in a product liability action. The Reotts sued the Appellees after Mr. Reott injured himself when he climbed onto a tree stand platform, the locking strap broke free, and Mr. Reott fell to the ground. The trial court granted the Reotts' motion for a directed verdict as to the defectiveness of the product, but declined to do so as to causation. The Superior Court held that the evidence introduced at trial was insufficient as a matter of law to support the Appellees' defense of highly reckless conduct, the trial court erred in denying the Reotts' motions for a directed verdict and JNOV on the issue of causation, and the case should be reversed and remanded for a new trial. The Superior Court further held that the trial court properly granted the Reotts' motion in limine to exclude any evidence of Mr. Reott's failure to use the supplied safety strap, practice with the tree stand at ground level, or inspect the tree stand before using it. The court reasoned that "[b]ecause the excluded evidence was not being offered to show that it was the sole or superseding cause of the injury, said evidence would only have created a question of comparative fault between the parties. . . ." and "negligence concepts generally, and particularly comparative fault, have no place in products liability actions." (September 21, 2010)

In Stewart v. Precision Airmotive LLC, the Superior Court of Pennsylvania addressed whether a manufacturer can be liable under the General Aviation Revitalization Act (GARA) where the parts of the accident aircraft at issue were manufactured by its predecessor. The court held that, while such a manufacturer cannot be considered a "manufacturer" within the context of the GARA's rolling provision extending its statute of repose, a question of fact remained as to whether this particular manufacturer could be held liable under the GARA because it assumed its predecessor's liabilities under the GARA. (September 13, 2010)

In Aubrey v. Precision Airmotive LLC, the Superior Court of Pennsylvania addressed whether the term "manufacturer" is uniform in scope throughout the General Aviation Revitalization Act (GARA). The court held that the interpretation of the term "manufacturer" is not uniform throughout the GARA, and that the term's meanings differ in the rolling provision extending the statute of repose and the fraud exception to the statute of repose. (September 13, 2010)

In Smith v. Yamaha Motor Corp., U.S.A., et al., the Superior Court of Pennsylvania considered whether a trial court properly dismissed strict liability and negligence claims in a product liability action in a case where an ATV-operator was injured when he operated an ATV on a wooded trail after consuming prescription drugs and a small amount of alcohol. The court held that the trial court erred in granting summary judgment to the manufacturer on the strict liability claim, holding that the plaintiff's alleged misuse of the ATV cannot be grounds for granting summary judgment in favor of the manufacturer under a design defect theory unless it is established that the misuse solely caused the accident. The court also reversed the trial court's grant of summary judgment on the negligence claim, holding that the plaintiff raised a material issue of fact regarding whether the manufacturer knew of safer alternatives that would have prevented the accident. (August 18, 2010)

In Lance v. Wyeth, the Superior Court of Pennsylvania addressed the viability of various theories of liability against the developer of a prescription drug. The Court held that under Pennsylvania law: 1) a negligent and unreasonable marketing claim is merely duplicative of a strict liability design defect claim and is not actionable; 2) a negligent design defect claim is distinct from a strict liability design defect claim and is actionable; and 3) a claim for negligent failure to withdraw/recall a drug is not cognizable. (August 2, 2010)

In Cochran v. Wyeth, Inc., the Superior Court of Pennsylvania considered whether the plaintiff could prove proximate causation in a situation where a drug manufacturer's warning disclosed a risk of injury from primary pulmonary hypertension (PPH)-the injury the plaintiff sustained-but failed to disclose a risk of injury from valvular heart disease (VHD). Although the plaintiff did not have VHD, she argued that had her physician been informed of the non-disclosed risk, he would not have prescribed the medication to her, and she never would have ingested the drug, or been diagnosed with PPH. The Superior Court, affirming the trial court's grant of summary judgment in favor of the defendant, rejected the plaintiff's argument. After considering and analogizing the torts of informed consent and failure to warn, the Superior Court was persuaded that the plaintiff could not establish proximate causation because the non-disclosed risk never materialized into an injury. (July 27, 2010)

In Summers v. Certainteed Corporation, et al., the Supreme Court of Pennsylvania addressed whether the Superior Court erred in its application of the standard of review for examination of a grant of summary judgment and whether plaintiffs asserting an asbestos-related disease can survive a motion for summary judgment when expert opinions attribute their injuries to both asbestos and non-asbestos related diseases. The court held that the question of whether there are genuine issues as to any material fact presents a question of law and that the appropriate standard of review is de novo. The court further held that a plaintiff should survive a motion for summary judgment whenever reasonably certain expert opinions are proffered attributing a plaintiff's maladies to both an asbestos and non-asbestos related disease. (July 22, 2010)

In Blessing v. Johnson & Johnson, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address a question related to the discovery rule in a products liability case. The question the court agreed to consider is stated as follows: "Under the circumstances presented, was [the] plaintiff's products liability action alleging defective sutures timely filed by application of the discovery rule; and[,] were [the] defendants equitably estopped from asserting the statute of limitations?" (June 3, 2010) 

The Supreme Court of Pennsylvania, in Fizzano Brothers Concrete Products, Inc. v. XLH, Inc., granted a Petition for Allowance of Appeal to address a question associated with the imposition of successor liability. Of note, the court will address the following question: "Does the de facto merger doctrine always require proof of continuity of ownership?" (May 19, 2010) 

In Williamson v. Mazda Motor of America, the Supreme Court of the United States granted certiorari to address a federal preemption question related to federal motor vehicle safety standards. The Court granted certiorari to address the following question: "Where Congress has provided that compliance with a federal motor vehicle safety standard 'does not exempt a person from liability at common law,' 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?" (May 24, 2010)  

In Bruesewitz v. Wyeth, Inc., the Supreme Court of the United States granted certiorari to address a federal preemption question related to Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986. The Court granted certiorari to address the following question: "Whether the Third Circuit erred in holding that, contrary to its plain text and the decisions of this Court and others, Section 22(b)(1) preempts all vaccine design defect claims, whether the vaccine's side effects were unavoidable or not." (March 8, 2010) 

In Traveler's Indemnity Co. v. Dammann Co., Inc., the United States Court of Appeals for the Third Circuit addressed, among other things, whether the economic loss doctrine bars claims made under the New Jersey Products Liability Act (NJPLA). The suit arose out of a commercial dispute regarding the sale of contaminated vanilla beans. In the District Court, one defendant, a vanilla extract manufacturer, filed a product liability crossclaim against another defendant, a seller of vanilla beans, based upon the NJPLA. Although no New Jersey court had previously addressed the issue, the court predicted that the New Jersey Supreme Court would find that the economic loss doctrine bars NJPLA claims where a plaintiff seeks economic damages for foreseeable losses for which the plaintiff could have contractually allocated the risk. Thus, the District Court dismissed the cross-claim, and the Third Circuit affirmed the decision. (February 5, 2010) 

In Kiak v. Crown Equip. Corp., the Superior Court of Pennsylvania addressed whether a state product liability, design defect claim against a forklift manufacturer was preempted by the Occupational Safety and Health Act of 1970 (OSHA). The alleged defect was the absence of an appropriate audible signal on the forklift. The trial court, in granting summary judgment in favor of the manufacturer, relied upon the Superior Court's decision in Arnoldy v. Forklift L.P., which held that a similar state law claim was preempted by OSHA. On appeal, the Superior Court reversed the trial court's decision, and overruled Arnoldy as being wrongly decided. Specifically, the Kiak court found that in reference to the applicable OSHA regulation concerning forklifts, 29 C.F.R. § 1910.178, the Arnoldy court erred in finding that a provision promulgated by the American National Standards Institute was incorporated by reference into the regulation. (January 29, 2010)

In Nicastro v. McIntyre Machinery America, Ltd., the Supreme Court of New Jersey addressed whether New Jersey had personal jurisdiction over a foreign corporation under either a minimum-contacts or stream-of-commerce theory. The court reaffirmed settled case law and held that a foreign manufacturer that places a defective product in the stream of commerce through a distribution scheme that targets a national market, which includes New Jersey, may be subject to the in personam jurisdiction of a New Jersey court in a product liability action. In affirming the decision of the Appellate Division, the court agreed that the defendant subjected itself to jurisdiction in New Jersey by placing its defective product into the stream of commerce with an awareness that the product may end up in New Jersey and by taking additional steps that indicated an intent to serve the New Jersey market. (February 2, 2010)

In Barnish v. KWI Building Co., the Supreme Court of Pennsylvania addressed the type of evidence required to establish a malfunction theory, strict product liability claim. To establish a strict liability claim, one element the plaintiff must prove is that the defect existed at the time the product left the manufacturer's control. Because the spark detection system at issue was destroyed in the fire giving rise to the lawsuit, the plaintiffs could not present direct evidence of a defect. Instead, they proceeded under a malfunction theory, which allows a plaintiff to show a defect through circumstantial evidence. The Superior Court granted the defendant's motion for summary judgment because the plaintiffs did not establish a genuine issue of material fact as to the existence of a defect at the time the product left the defendant's control, ten years before the date of the fire. The Supreme Court affirmed, finding that evidence that the detection system functioned properly for ten years undermined the inference that the product was defective when it left the defendant's control. (October 5, 2009) 

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