Court Addresses Admissibility of Expert Opinions

In the case of Twigg v. Varsity Brands Holding Co., No. 4:23-CV-00067 (M.D. Pa. March 7, 2025 Brann, C.J.), the court provided the latest pronouncement on the Rules of Admissibility for an expert witness under Federal Rule of Evidence 702.

This products liability case arose out of an accident during which a baseball coach was struck by a batted ball that went through an L-screen net while he was pitching batting practice.

In his decision in this case Chief Judge Matthew W. Brann granted in part and denied in part Rule 702 motions regarding experts in the case. In so ruling, the court noted the following principles of law.

An expert’s lack of technical background does not render an expert unqualified where that expert has sufficient practical experience.

The court also ruled that an expert need not have familiarity with a product in order to evaluate the adequacy of a manufacturer’s testing protocols.

The court also noted that an expert may rely solely upon material provided to the expert by counsel. However, that expert is not permitted to rely upon material that has not been disclosed to the opposing party.

The court also reaffirmed the rule that an expert may not testify about matters outside the scope of their opinions.

The court also noted that experts may assume the truth of the contested facts asserted by the parties who hired them. The weight of such opinions depends on how the jury ultimately views the underlying facts.

Anyone wishing to review a copy of this decision may click this LINK.  The court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Reed Smith office in Philadelphia for bringing this case to my attention.

What Constitutes The "Record" To Be Reviewed On Summary Judgment?

In the case of L.T. v. Kubota Manufacturing, No. 1310 MDA 2023 (Pa. Super. Feb. 14, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania Supeiror court overruled a trial court’s entry of summary judgment in a products liability case.

According to the Opinion, the case arose out of a rider mower accident in which a grandmother accidentally ran over her 7 year old grandson who had come into the yard and slipped on the grass behind her. The Plaintiff alleged that the mower lacked appropriate rear guarding and was negligently designed such that the blades remained engaged even when the tractor was in reverse. The minor’s lower leg eventually had to be amputated.

On appeal, the Pennsylvania Superior Court noted that the trial court erred by not reviewing certain expert reports offered by the Plaintiff which were attached to the Plaintiff’s Brief which were filed of record.

The Superior Court, citing Pa. R.C.P. 1035.1, confirmed in its Opinion that the Rules of Civil Procedure define “record” for purposes of summary judgment as including pleadings, depositions, Answers to Interrogatories, admissions and affidavits, and reports signed by an expert witness that would, “if filed,” comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to Interrogatories

The court noted that the language of the rule suggest that expert reports need only be submitted to the court, not filed, in order to be considered in Motion for Summary Judgment proceedings.

As such, the appellate court noted that the trial court should have considered the Plaintiff’s expert report, which would have created issues of fact for the jury’s resolution.

In this decision, the Pennsylvania Superior Court also provided a thorough recitation of the current status of products liability law in Pennsylvania, including the law as altered by the case of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). In reviewing that law, the court reiterated that there were indeed issues of fact that needed to be decided by a jury.

As such, the trial court’s entry of summary judgment was overruled.

Anyone wishing to review a copy of this decision may click this LINK.

Western District Federal Court of Pennsylvania Addresses Products Liability Claims In a Prescription Medical Device Litigation

In the case of Blair v. Abbvie, Inc., No. 2:23-CV-1871 (W.D. Pa. Jan. 9, 2025 Ranjan, J.), the court granted a Motion to Dismiss in a prescription medical device litigation.

In this decision, the Western Federal District Court confirmed that Pennsylvania’s across-the-board application of the Restatement §402A, comment k, as precluding strict liability design defect claims, but not strict liability manufacturing defect claims.

The court also ruled that, similarly, given that the elements of implied warranty claims are identical to strict liability claims, the Plaintiff’s implied warranty claims were dismissed.

The court also ruled in this case that the manufacturing defect claims asseted by the Plaintiff were inadequately pled because the claims did not reveal either any specific problem with the device or how the device allegedly failed. The court noted that the availability of a malfunction theory manufacturing defect claim does not exclude excuse failure to plead the circumstances of the alleged malfunction.

The court also ruled that the negligent design and warning claims were inadequately pled because the Plaintiff did not identify the design defect, anything about the manufacturing process, or what information should have been given to his medical providers.

Based on these issues, the trial court granted the Defendant’s Motion to Dismiss.

Anyone wishing to review a copy of this decision may click this LINK.


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.

Federal Court Addresses Products Liability Claims Involving a Medical Device

In the case of Ford v. St. Jude Medical, LLC, No. 3:21-CV-01765 (M.D. Pa. Sept. 23, 2024 Mehalchick, J.), the court granted in part and denied in part the Defendant’s Motion to Dismiss.

The case involved allegations that the Plaintiff fell when his pacemaker device failed.  

The court ruled that Pennsylvania law does not permit strict liability claims in prescription medical product liability litigation against medical device manufacturers. This prohibition includes strict liability design and manufacturing claims.

Judge Mehalchick additionally ruled that the Plaintiff’s claims of an implied warranty based upon different or additional Pennsylvania medical device standards were preempted. The court additionally noted that, even if these claims were not preempted, such claims would also be barred by the Restatement of Torts (Second) §402a, comment k.

Judge Mehalchick additionally ruled that a loss of consortium claim cannot be based on a contractual claim for breach of an express warranty.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed at this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

Federal Court Addresses Viability of Products Liability Claims Involving Medical Devices

In the case of Douglas v. Atrium Medical Corp., No. 3:23-CV-747-JKM (M.D. Pa. Sept. 30, 2024 Munley, J.), the court granted in part and denied in part a Motion to Dismiss after finding that settled Pennsylvania law did not allow for strict liability claims in a products liability litigation relative to claims involving prescription drugs and medical devices.

The case arose out of issues regarding the use of a hernia mesh as treatment.   

Judge Munley also denied the request for a certification of the strict liability issues for an interlocutory appeal because there was no substantial ground for a difference of opinion on this decision.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

Souce of image:  Photo by Vidatl Balielo, Jr. on www.pexels.com.

Summary Judgment Granted in Favor of Porsche Due to Failure of Plaintiff's Expert Testimony

In the case of Riad v. Porsche Cars M.A. Inc., No. 18-5175-KSM (E.D. Pa. July 30, 2024 Marston, J.), the court granted summary judgment to the defense in a products liability action.

The court noted that the Plaintiff failed to prove causation, which is necessary element in a products liability action. The court additionally noted that causation requires expert testimony where the issues are medically complex and such testimony must be to a reasonable degree of medical certainty in order to be admissible.

In this case, the court noted that the Plaintiff’s expert denied having any opinion to a reasonable degree of medical certainty. The court noted that testimony using phrases like “likely” or referring to “possibilities” do not equate to testimony to a reasonable degree of medical certainty.

Given that the Plaintiff was found to be without admissible causation evidence, the Defendant was granted summary judgment.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Evidence of Compliance With Industry Safety Standards Not Admissible in Products Cases

Back in December of 2023, in the case of Sullivan v. Werner Co., No. 18 EAP 2022 (Pa. Dec. 22, 2023) (Op. by Mundy, J.) (concurring Op. by Justice Donohue) (dissenting Opinion Todd J., jointed by Brobson, J.), the Pennsylvania Supreme Court held that evidence of a product’s compliance with industry and governmental safety standards remains inadmissible following the Pennsylvania Supreme Court’s decision in the case of Tincher v. Omega Flex, Inc., 104 A.3d 368 (Pa. 2014).

Anyone wishing to review the decision in this case may click this LINK.

Justice Donohue's Concurring Opinion can be viewed .

Chief Justice Todd's Dissenting Opinion can be viewed HERE. 

Trial Court Requests Superior Court To Reverse Trial Court's Own Venue Ruling

In the case of Martinez v. Elsner Engineering Works, Inc., No. 230102505 (C.P. Phila. Co. Feb. 15, 2024 Anders, J.), the trial court issued a Rule 1925 Opinion in which it requested the Superior Court to reverse the trial court’s previous ruling that sustained a Defendant’s Preliminary Objections as to venue and transferred the case from Philadelphia County to York County. 

The trial court noted that, in this case, the Plaintiff sued multiple Defendants in Philadelphia County for personal injuries allegedly caused by a defective industrial product/equipment.

The Plaintiff’s Complaint alleged that one (1) Defendant designed, manufactured and sold the industrial equipment in Philadelphia County and that another Defendant was a successor-in-interest to the manufacturer.

The successor-in-interest Defendant filed Preliminary Objections and asserted that Philaelphia County was an improper venue.  In its original decision, the trial court agreed and ordered that the case be transferred to York County.

With this Opinion, the trial court concluded that, upon further review of the matter, its Order should be reversed and that Philadelphia should be found to be a proper venue for the case because a transaction or occurrence took place in Philadelphia County out of which the Plaintiff’s cause of action arose. More specifically, the Plaintiff had alleged that the original equipment manufacturer had defectively designed, manufactured, and sold the disputed equipment in Philadelphia County.

The trial court noted that it had reviewed additional case law authority that offered guidance as to whether proper venue in a particular county existed based upon business activity of a predecessor corporation of a current defendant in a matter. In that regard, the court found that a predecessor corporation’s activities could be attributed to its successor for purposes of a determination of proper jurisdiction.

As such, the trial court was now concluding that Philadelphia County was a proper venue in light of the Plaintiff’s allegations that the Defendant at issue was a successor-in-interest of the original equipment manufacturer.  The trial court, therefore, requested the Superior Court it reverse the trial court's prior decision.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).

Source of image: Photo by Nick Fewings on www.pexels.com.

Crashworthiness Test Applied to Golf Cart in Accident Case

In the case of Suisi v. JH Global Services, Inc., No. 10604-2015, C.A. (C.P. Lawr. Co. Jan. 23, 2024 Hodge, J.), the court addressed issues arising out of injuries sustained by a Plaintiff during a golf cart accident.

According to the Opinion, the golf cart was designed by Defendant, JH Global, and sold to a licensed dealer. Prior to its sale, the golf cart was modified by the dealer with a lift kit designed and sold by another Defendant.

In this matter, the court addressed a Motion for Summary Judgment filed by the manufacturer of the golf cart. 

According to the Opinion, the accident occurred when the Plaintiff was driving the golf cart on a roadway when the components of the steering mechanism, which were altered by the lift kit, failed.  The Plaintiff crashed and the Plaintiff was thrown approximately thirty (30) feet from the golf cart.

The Defendant filed a Motion for Summary Judgment on the grounds that there was allegedly no support for a claim against JH Global as the designer of product that was impermissibly altered by a dealer and where the designer’s original parts were not the parts that failed during the course of the accident.

The Plaintiffs also subsequently filed a Motion for Summary Judgment asserting that the record should demonstrate that the Defendants should have had knowledge that their carts were being modified and sold by their dealers that the Defendant designer did not adequately monitor and reprimand those actions, and that there was no sufficient warning within the warranty itself to convey the dangerous potential results of those modifications. The Plaintiff additionally asserted that the design of the cart invited modifications without appropriate safety mechanisms.

The court applied a 3-factor test for a defective design claim: whether a product could be designed to be safer, whether a design failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner, and if the designed caused the injury, whether the Plaintiff could demonstrate that a challenged feature outweighs the risk inherent in the design.

The court also applied the crash worthiness of a motor vehicle test to the golf cart as a matter of first impression. 

In this regard, the court noted that the crash worthiness of a motor vehicle test required the Plaintiff to prove (1) that the design was defective and that an alternative, safer and practical design existed and could have been incorporated at that time, (2) the injuries the Plaintiff would have received had the alternative design been used, and (3) what injuries were attributable to the defective design.

Here, the court found that the Plaintiff could not identify or offer an available alternative cart design that would have prevented the Plaintiff’s injuries. The alleged defect was that the cart enabled modifications that it was constructed to handle. The court noted that he Defendant’s warranty instructions said that the cart should not be modified.

The court found that a design that permitted modification of a catastrophically flawed lift kit was unintended and unforeseeable. As such, the court found that the Defendant was not responsible for manfuracturing each golf cart to withstand modifications and noted that the Defendant made a golf cart with additional safety measures when it is lifted, but the original purchaser did not buy that model.

As such, the court found that the design defects alleged by the Plaintiff were without merit.

On the claim of an inadequate warning of the possible consequences of modifying the golf cart, the court stated that the Plaintiff was required to provide proof that the lack of warning rendered the cart unreasonably dangerous and that it was approximate cause of the injury. The court denied summary judgment on the failure to warn claim, finding that this claim presented issues to be resolved by the jury.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Law.com: “The Legal Intelligencer Common Pleas Case Alert” (May 8, 2024).\

Source of image:  Photo by Cristina Ann Costello from www.Pexels.com.

Pennsylvania Supreme Court Rules that Evidence of a Product's Compliance With Industry Safety Standards Is Not Admissible in a Strict Liability Design Defect Case

In another notable victory for the Plaintiff's bar at the Pennsylvania Supreme Court level, that Court, in the case of Sullivan v. Werner Co., No. 18 EAP (Pa. Dec. 22, 2023) (Op. by Mundy, J.), addressed the issue of whether evidence of a product’s compliance with industry and government safety standards is admissible in a strict liability case following the Pennsylvania Supreme Court’s previous decision in the case of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).

The Pennsylvania Supreme Court ruled that such compliance evidence is inadmissible in this context. 

This case arose out of a collapse of a mobile scaffold. The Plaintiffs complained that the scaffold was defectively designed.

In the case below, the trial court granted a Plaintiff’s Motion to Preclude the Defendants from adding into evidence any industry or governmental standards with regards to the scaffolding. After a verdict was entered in favor of the Plaintiff, this appeal followed and went up the appellate ladder.

In the Sullivan case, the Pennsylvania Supreme Court concluded that evidence of a product’s compliance with governmental regulations or industry standards is inadmissible in a strict liability design defect case to show that a product is not defective under the risk-utility theory because such evidence goes to the reasonableness of the manufacturer's conduct in making its design choice, not to the issue of whether the product was defectively designed.

Anyone wishing to review a copy of the Majority Opinion in this decision may click this LINK.

The Concurring Opinion by Justice Donohue can be viewed HERE.

The Dissenting Opinion by Chief Justice Todd can be viewed HERE.


I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas Thomas & Hafer for bringing this case to my attention.

Source of image:  Photo by Darya Sannikova on www.pexels.com.

Issues of Fact Allow Strict Liability Case Involving Ladder to Proceed Forward

In the case of Kallok v. Wing Enterprises, Inc., No. 2:21-CV-00805-PLD (W.D. Pa. Sept. 19, 2023 Dodge, M.J.), a federal magistrate judge denied a Defendant’s Motion for Summary Judgment in a Plaintiff’s strict liability, negligence and breach of warranty action over a collapsed ladder.

The court found that the Plaintiff’s liability expert’s testimony was sufficiently reliable and created genuine issues of material fact as to whether or not the ladder was defective at the time of sale, whether the Defendant’s quality control procedures met the expected standard of care, and as to how the ladder was set up.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 5, 2023).

Flea Market Not a Seller for Purposes of Products Liability Case

In the case of Liebig v. MTD Products, Inc., No. 22-4427 (E.D. Pa. May 25, 2023 Murphy, J.), the court denied a Motion to Remand in a products liability case.

The court reasoned that the Plaintiff’s alleged products liability claims against a non-diverse Pennsylvania flea market were not colorable such that a finding that that Defendant was fraudulently joined was appropriate.

In this case, the product was apparently purchased at a flea market.

The court noted that a flea market is not a seller of a product as that term is defined in the products liability context. Rather, flea markets are markets that merely provide space for third parties to sell ordinary household items to each other. Flea markets are not to be considered manufacturers, distributors, or sellers of products under the contexts of product liability case.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


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.

Source of image:  Photo by Clem Onojeghuo on www.unsplash.com.

Philadelphia County Court Transfers Venue of Products Liability Case to Bucks County

In the case of Watson v. Baby Trend, Inc., Aug. Term 2021, Case No. 210802189 (C.P. Phila. Co. Dec. 16, 2022 Cohen, J.), the court filed a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s granting of a Defendant corporation’s Preliminary Objections asserting improper venue in Philadelphia County.

According to the Opinion, the Plaintiff filed this products liability lawsuit alleging that their 11 month old child died while in a car seat manufactured by the Defendant.

The Plaintiffs filed their lawsuit in Philadelphia County. The Defendant filed Preliminary Objections to the Complaint and sought to transfer venue from Philadelphia County to Bucks County.

After allowing for discovery on the issue, the court sustained the Preliminary Objections and issued and Order transferring the case to Bucks County. 

The Plaintiffs filed an appeal, which prompted the trial court to issue this Rule 1925 Opinion. In this Opinion, the court in Watson stated that, while a Plaintiff’s choice of forum is to be given great weight, that choice is not absolute. The court noted that, under Pennsylvania Rules of Civil Procedure 2179, personal injury action against the corporation or a similar entity may be brought in a county where that Defendant regularly conducts business.

Under the applicable law, when determining whether venue is proper in this type of case against a corporation, the courts are required to apply a quality/quantity analysis.

After reviewing the record, the court noted that the Defendant’s direct to consumer sales in Philadelphia represented just .0018% of the company’s total 2021 sales and that the company otherwise sold their product through big box retailers such as Target, Wal-Mart, and Amazon.

The court found that the Defendant corporation did not otherwise have any direct connection with Philadelphia County and did not maintain any places of business in the city or even in the state of Pennsylvania. It was additionally noted that the company did not buy any products or material from any Pennsylvania vendors.

According to the trial court, the company’s activities within Philadelphia failed to meet both the quality and quantity prongs of the venue analysis. Consequently, the court found that venue was not proper in its jurisdiction.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).

Venue of Products Liability Case Transferred From Eastern District to Middle District

In the case of Twigg v. Varsity Brands Holding Co., Inc., No. 21-CV-00768 (E.D. Pa. Jan. 12, 2023 Goldberg, J.), the court granted a Defendant’s Motion to Transfer Plaintiff’s products liability action from the Eastern Federal District Court of Pennsylvania and out of the Middle Federal District Court of Pennsylvania.

According to the Opinion, the Plaintiff was a teacher and coach who was throwing indoor batting practice from behind an L-screen that was covered with safety netting. A hit ball ripped through the safety netting, hitting the Plaintiff in the eye and causing permanent damages.

The Plaintiff brought strict liability claims against the Defendant and filed a suit in the Eastern District Court of Pennsylvania. The Plaintiff’s main argument for filing in that county was that a majority of the Plaintiff’s treating doctors and nurses were allegedly located within that district.

After reviewing the record before it, the Eastern District Judge Goldberg ruled that the Defendants had demonstrated that the case could have been brought in the Middle District of Pennsylvania and that the balancing of the factors required under 28 U.S.C. §1404(a) and the Jumara case weighed in favor of the transfer of the case from the Eastern District to the Middle District.

The court found that venue was proper in the Middle District because the injury occurred in a county located within that district. The court otherwise found that the convenience of the party’s factor was neutral and that more witnesses were actually located in the Middle District.

The court also noted that the allegedly defective product was sold to a public school in the Middle District for use by its students and employees and that the case was, therefore, fairly characterized as a localized controversy within the Middle District Federal Court jurisdiction of Pennsylvania. As such, the Defendant’s Motion to Transfer was granted.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).

Federal Court Rules that Contributory Negligence Defense Cannot Be Utilized in a Strict Liability Case

In the Cote v. Schnell Industries, No. 4:18-CV-01440 (M.D. Pa. Nov. 8, 2022 Brann, J.), the court granted in part and denied in part Motions In Limine filed by both the Plaintiff and the Defendant in this strict products liability claim.

More specifically, the court excluded evidence of the Plaintiff’s contributory negligence, recklessness, or assumption of the risk where the product manufacturer Defendant could not show that the alleged product defects contributed in no way whatsoever to the accident and that the victim’s actions were therefore causally connected.

In this regard, Judge Brann noted that a products liability Defendant is not permitted to use contributory negligence concepts to excuse a product's defect or reduce recovery by comparing the fault of the parties in a strict liability case.  The exception is where the accident at issue was solely caused by a Plaintiff's negligence, which was not the case here.  

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).

Chief Judge Matthew W. Brann of Middle District Addresses Admissibility of Alleged Contributory Negligence of Plaintiff in Products Case

In the case of Cote v. Schnell Industries, No. 4:18-CV--1440 (M.D. Pa. Nov. 8, 2022 Brann, J.), the court addressed several issues with respect to the admissibility of alleged misconduct by a Plaintiff in a products liability case.

According to the Opinion, this case involved a machine involved in a workplace accident that nearly severed the Plaintiff's hand.

The court noted that a Plaintiff’s comparative negligence is not admissible in a strict liability action, except as a superceding cause where the Plaintiff is the sole cause of the accident. The court otherwise noted that negligence that relates to the product itself cannot be a sole cause.

Here, the court found that the Plaintiff’s conduct in putting his hand in a dangerous position in the product relates to the product and was, therefore, inadmissible to be used against the Plaintiff.

The court also noted that the Plaintiff’s conduct is not relevant to the consumer expectation or risk-utility factors applicable to a products liability action because these tests to determine a product defect are concerned with the actions of an “ordinary” person, and not any particular Plaintiff.

However, the court did note that evidence of a Plaintiff’s voluntary assumption of the risks, misuse of a product, or highly reckless conduct is admissible to prove the issue of causation.

Chief Judge Matthew W. Brann
M.D. Pa.

Chief Judge Matthew W. Brann stated that, under Pennsylvania law, the assumption of the risk doctrine requires a knowing and voluntary exposure of oneself to a known risk. The court found that his assumption of the risk doctrine is inapplicable where a Plaintiff was required to use equipment provided by an employer.

Judge Brann additionally noted that product misuse and highly reckless conduct involve a Plaintiff’s unforeseeable, outrageous, and extraordinary use of a product. Whether a Plaintiff’s conduct meets this standard is for a jury to decide.

However, because a Plaintiff’s misuse and highly reckless conduct cannot be a sole cause of the accident, the court found the evidence of such conduct was inadmissible. 

On another issue before the Court, Judge Brann additionally noted that the Defendants could not use a Motion In Limine as a belated substitute for a Rule 702 motion relative to the competency of an expert’s opinion.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


I thank Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Strict Liability Failure to Warn Claims Fail Where Plaintiffs Did Not Read Warnings

In the case of Mains v. The Sherwin-Williams Co., 5:20-CV-00112 (E.D. Pa. Nov. 10, 2022 Gallagher, J.), the Eastern District Court of Pennsylvania addressed the validity of a warning defect theory put forth by a Plaintiff in a products liability case.

This matter arose out of an incident during which the Plaintiff's deck caught on fire.  The Plaintiffs alleged that the product they used to stain their deck self-heated and caused a fire on their property.  More specifically, the Plaintiff's alleged that they placed application materials with the product left on it on the lawn next to the dect after which those items spontaneously caught fire.   

The court ruled that the Plaintiff’s warning defect theory failed as a matter of law because the Plaintiff admitted in this case that they never even read the warning label on the Defendant’s product.

The court therefore found that an unread warning could not be a cause of an injury in a products liability claim. 

The court also noted that the Plaintiff did not show any way that a “reminder warning” might have prevented the accident.

In this particular matter, the court also found that the Plaintiff’s failure to warn claim was also preempted by the Hazardous Substances Act because that Act did not require the Defendant to include a spontaneous combusting warning on the label as a principal hazard.

The court also confirmed that, in any event, the warning label on the product contained the words 'DANGER' and 'COMBUSTIBLE,' and further informed users of the product that 'rags, steel wool, other waste soaked with this product...may catch fire if impropertly discarded.'  Users were advised to discard such waste in a sealed water filled metal container.     

The court additionally noted that the Plaintiff was unable to establish any design or manufacturing defect because the Plaintiff’s lacked any expert evidence that the product, whether it was defective or not, actually caused the fire that injured them.

The court confirmed that the Plaintiff did not identify a cause and origin expert with regards to the fire in question. It was additionally held that lay opinion testimony is speculative and no substitute for expert fire causation testimony, particularly where there were possible alternative origins for the fire in this case. The court also noted that scientific knowledge about the chemical components of the product and their corresponding combustibility was beyond the understanding of a layperson and, therefore, required the testimony of an expert.

The court also found that the Plaintiff could not rely upon a malfunction theory of liability to establish an alleged manufacturing defect because the Plaintiffs did not have the expert testimony necessary to eliminate other possible causes.

The court also found that the Plaintiff’s implied warranty of merchantability claim was similar to a strict liability claim and that this implied warranty of merchantability claim failed because the Plaintiffs were not able to establish a product defect.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I thank Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of Image:  Photo by Pontius Wellgraf on www. Pexels.com.

Summary Judgment Issues Addressed in Pelvic Mesh Products Liability Case

In the case of Cohen v. Johnson & Johnson, No. 2:20-CV-00057(W.D. Pa. Pa. Oct. 5, 2022 Hornak, J.), the Western District federal court ruled that strict liability claims arising from an allegedly defective pelvic mesh could proceed where there was no evidence that the mesh was an unavoidably unsafe product or incapable of being made safe, which would preclude the imposition of strict liability.

The court denied in part and granted in part, the Defendants’ Motion for Summary Judgment.

Anyone wishing to review this decision may click this LINK.

Court Relies Upon Doctrine of Forum Non Conveniens To Send a Case to Another State

In the case of Nwachan v. HomeGoods, Inc., July Term 2020, No. 2269 (C.P. Phila. Co. July 19, 2022 Shreeves-Johns, J.), the court issued a Rule 1925 Opinion to support its denial of a Motion for Reconsideration/Appeal relative to the court's previous granting of a Motion for Transfer of a Case from Pennsylvania to Delaware Under the Doctrine of Forum Non Conveniens.

The court held that the Motion to Transfer Under the Doctrine of Forum Non Conveniens had originally been properly granted due to the fact that the product at issue in this products liability case was purchased in Delaware and given that the Defendant company was also incorporated in Delaware.

The court additionally stated that Delaware was the appropriate forum due to the fact that relevant sources of proof were located in that state, where a Delaware Court would provide a more sufficient mechanism to compel discovery, and where all of the transactions and occurrences giving rise to the litigation had occurred in Delaware.

The court also noted that a Delaware state court was better positioned to apply its own laws and had a greater interest in hearing a case involving its own citizens.  

As such, this Philadelphia County Court of Common Pleas held that it did not commit an abuse of discretion in dismissing the matter under the doctrine of forum non conveniens. The trial court requested that the appellate court to dismiss the appeal as a result.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 27, 2022).

Federal Court Addresses Potiential Liability of Drug Manufacturer in Products Liability Case

In the case of DiCair v. Gilead Sci., Inc., No. 21-CV-5486 (E.D. Pa. July 12, 2022 Schiller, J.), the court ruled that negligent failure-to-warn and strict liability product claims against a pharmaceutical manufacturer were barred as a matter of Pennsylvania law.  As such, a Defendants’ Motion to Dismiss was granted in part and denied in part.

According to the Opinion, the Defendant designed and manufactured a prescription medication sold under the trade name of Harvoni which was used to treat Hepatitis C. 

The Plaintiff’s decedent was prescribed the medication and, after taking the medication, was diagnosed with a form of liver cancer. The Plaintiff’s decedent passed away thereafter.

The Plaintiff filed this lawsuit alleging a failure to warn and design and manufacturing defect claims under both negligence and strict liability. The Plaintiffs claimed that the decedent’s development of cancer was caused by his use of the medication.

The court dismissed the negligent failure-to-warn claim, noting that it was well-settled Pennsylvania law that pharmaceutical companies do not owe a duty to warn the public. Rather, manufacturers of medications are only required to warn prescribing doctors of the risk of the medications.  The court cited to the learned intermediary doctrine which holds that drug manufacturers are only required to direct required drug safety warnings to physicians who, in turn, are required to relay the same to patients.

However, the court declined to dismiss the Plaintiff’s negligent design and manufacturing defect theories, finding that the Plaintiff had asserted a valid cause of action that the Defendants had allegedly negligently designed and manufactured the medication.

Lastly, the court did dismiss the Plaintiff’s strict liability claims after holding that strict liability claims against prescription drug manufacturers were barred by Pennsylvania products liability law.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 12, 2022).

Source of image:  Photo by Anna Shvets on www.pexels.com.