Here, the court agreed that the product defect opinion offered by the plaintiff’s expert was entirely conclusory. According to the record before the court, the expert merely looked at the picture and did not examine either the product at issue that allegedly failed, or any exemplar product. No defect, other than the fact that the product allegedly broke, was identified by the expert.
The court ruled that an argument that a product broke and, therefore, must be defective, is improper res ipsa loquitur evidence dressed up as an expert opinion. The court ruled that, without any proper expert report, the mere breaking of a product was not established to be a malfunction that could support a malfunction theory of liability.
The court also noted that the exclusion of any expert testimony on any alleged defect warranted the dismissal of the action.
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I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.