Pirelli Prevails Using Plaintiff’s Conduct in PA Products Matter

In Pennsylvania strict products liability cases, defendants are not permitted to introduce evidence of a plaintiff’s negligence. To prove a strict-liability cause of action, the plaintiff must prove: (a) the product was defective, (b) that it was defective when it left the defendant’s hands, and (c) that the defect caused harm—a plaintiff’s negligence is not relevant to a product defect. However, a plaintiff’s conduct may be offered by the defense to establish that an accident was solely the result of the user’s conduct, and not related to the product defect. This evidence proves causation and not negligence.

The thin line between presenting evidence of plaintiff’s conduct to prove negligence or to rebut the element of causation was at the center of Anderson v. Pirelli Tire, LLC. In Anderson, the plaintiff’s wife died in a motorcycle accident when the tire blew out. Pirelli Tire, LLC manufactured the motorcycle’s tire and plaintiff asserted a strict liability claim arguing that the tire had a manufacturing defect. Crucially, plaintiff argued that he noticed a “blemish” on the tire on the day of the accident; plaintiff’s theory was that a foreign object got inside the tire during the manufacturing process, and that the tire left Pirelli’s plant with the defect. Pirelli argued that plaintiff was at fault because the tire was under-inflated and overloaded resulting in over-deflection, which caused the accident.

The conduct at issue were the steps taken by the plaintiff to ensure their safety on the motorcycle, the air pressure of the tire, and the weight carried on the motorcycle at the time of the trip. The plaintiff argued this was inadmissible because it was evidence of the plaintiff’s negligence, but the court permitted the evidence on the theory that it went to impeach the plaintiff’s testimony and that it went to causation. First, in respect to impeachment, the plaintiff testified that he took safety courses and that he reviewed a checklist before riding the motorcycle. Pirelli argued that given that training, the plaintiff would have taken the tire to the shop if he in fact noticed a “blemish.” Second, in respect of causation, Pirelli argued that plaintiff’s failure to inflate the tire caused the blow out, not a defective tire.

On appeal, the Superior Court upheld the trial court’s ruling since Pirelli offered the evidence properly—only to prove causation and not negligence. The court also relied on the trial court’s jury instructions, which highlighted that the jury could only consider the evidence for the purposes of impeachment and causation.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions.

Plaintiff Fails to Connect Jurisdictional Dots, Prompting Dismissal of Products Case (PA)

On October 10, 2017, the Superior Court of Pennsylvania handed down a decision affirming the dismissal of a case in Lawrence v. Robland International B.V. et al.  The case arises from a workplace injury on May 3, 2013 when plaintiff, Henry Lawrence, injured his hand while using a Robland table saw.  On October 28, 2015, Lawrence and his wife filed a complaint naming fifteen defendants, alleging strict liability, negligence, and breaches of warranty.  Several of the defendants are located in Belgium and the Netherlands.

These foreign defendants filed preliminary objections arguing that the suit should be dismissed for lack of personal jurisdiction.  The court granted their objections the Lawrence’s appealed, raising the issue of whether Pennsylvania courts could exercise jurisdiction over the foreign saw manufacturers.

When looking at personal jurisdiction, one must do so under the due process clause of the Fourteenth Amendment and see whether a defendant has maintained meaningful contacts with the forum.  This jurisdiction comes in the form of either specific or general.  Specific jurisdiction arises when a certain activity, action, or event gives rise to the exact cause of action.  For example, purposefully selling an item in a state which then causes an injury is an event that gives rise to specific jurisdiction.  General jurisdiction arises when either a corporation has its headquarters and/or principal place of business in a forum state or maintains connections with the state that are “so continuous and systematic as to render them essentially at home”.  An example would be that a company sells so many products in a single state that it is essentially at home there, even if none of those products caused an injury.

Upon review, the Superior Court found that the appellants had waived any argument as to general jurisdiction as they conceded that certain defendants did not have “constant and pervasive contacts with Pennsylvania” in their appeal brief.  The court then looked at whether there was specific jurisdiction.  In Pennsylvania, to prove specific jurisdiction one must show that a company’s specifically identified activities are covered under Pennsylvania’s Long-Arm Statute, which grants specific jurisdiction in certain situations.  Once this is shown, once must then prove that jurisdiction is proper under the Constitution’s due process clause by showing it does not offend “traditional notions of fair play and substantial justice”.

Once again, the court found that the appellants had waived their argument because they had skipped the step of showing that specific jurisdiction was proper under Pennsylvania’s Long-Arm Statute and had skipped ahead to the due process analysis.  Because of this, the court stated the record and appellate brief submitted were insufficient and failed to meet the burden of showing jurisdiction.  Plaintiff failed to set up his chess pieces properly, and ended up facing “checkmate.”  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

WCM Wins Summary Judgment in Philadelphia Penile Numbing Cream Products Case.

Partner Bob Cosgrove and associate Matt Care were awarded summary judgment in Philadelphia County in the case of Lowe v. The Kama Sutra Company, et. al. In Lowe, the plaintiff, a MMA fighter, sued the designer, manufacturer, and distributor of a prolonging gel, meant to prevent premature ejaculation, after alleging injuries to his penis after repeated use. Lowe utilized the gel in combination with other products and alleged that the gel caused permanent disfigurement to his member and decreased sexual performance.

After years of discovery and countless depositions, WCM was able to convince the court that our client, a wholesale distributor of adult novelties and romance products, did not distribute a defective product. Consequently, the court dismissed all of the plaintiff’s negligence, strict product liability, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose claims, and all cross-claims against our client.

For more information about this post please e-mail Bob Cosgrove.

Defendants “Cut” Ample Settlement Check in Table Saw Case (PA)

The plaintiff in a products liability action involving a table saw recently settled his claims for $2 million.  In Mai v. Ryobi Technologies, C.P. Philadelphia No. 140303388, the plaintiff injured several fingers while using a table saw to cut through a piece of wood in a hardwood floor installation project.

While working on the installation project, the plaintiff alleged that the wood contacted the back end of the spinning table saw blade, which resulted in the blade being pushed back into the plaintiff’s hand, resulting in right middle finger amputation, nerve damage and disfigurement to his other fingers.  The plaintiff claimed that these injuries caused lost earning capacity as well as pain and suffering damages.

The plaintiff sued the manufacturer of the saw as well as the person who owned the saw.  He alleged that the owner of the saw directed the plaintiff to cut a length a wood flooring despite the plaintiff’s inexperience in using table saws.  He also pursued a products liability claim against the manufacturer, alleging that the guard of the saw had been defectively designed.

The plaintiff, despite acknowledging that a guard was installed on the guard, and had been taken off the saw before he used it, asserted that the guard was defectively designed because the manufacturer knew that customers had frequently been removing the guard.  Additionally, the plaintiff contended that the manufacturer should have used an alternative technology that could have stopped the blade more quickly.  The plaintiff’s claims included negligence and failure-to-warn, and he pursued both a risk utility theory as well as a consumer expectation theory of products liability throughout the course of the litigation.

In its defense, the manufacturer argued that the plaintiff’s use of the saw with the knowledge that the safety guard had been removed constituted misuse and assumption of risk.  Additionally, the manufacturer argued that the saw, as designed, satisfied national safety standards, and that the plaintiff had successfully gained employment UPS after the accident.  Furthermore, the owner of the saw indicated that he told the plaintiff to stay away from the saw on the date of the accident.

Despite the relatively robust defense evidence against the plaintiff’s claims, the plaintiff still collected a $2 million settlement for his injuries.  The plaintiff’s simultaneous pleading of both the risk utility theory as well as the consumer expectation theory of negligence further demonstrates the continuing evolution of products liability litigation in Pennsylvania following the Pennsylvania Supreme Court’s 2014 decision Tincher v. Omega Flex, Inc.  For further thoughts and analysis on the effects of Tincher, please click here.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Defective Holster Shoots Manufacturer in the Foot (PA)

A Philadelphia jury awarded a police officer plaintiff $2.6 million after he was injured by an allegedly defective gun holster.  Pennsylvania State Trooper, Jesse Oleksza was injured when his gun discharged into his leg, while in his holster.  According to his pretrial memo, Oleksza was getting his gym bag from out of his police car when his Glock 37 pistol went off.  It was held in a Gould & Goodrich holster.

Oleksza alleged that a foreign object had managed to lodge itself in the holster due to a defect and thus caused the pistol to fire.  An internal affairs investigation cleared Oleksza of any wrongdoing and found that an object like a key could discharge the firearm if inserted into the holster and trigger area.  Oleksza contended the holster was defective for failing to properly protect the trigger and sought recovery based on negligence, strict liability, and breach of implied warranties.


Gould & Goodrich contended that warnings on the holster stated that users should ensure that the trigger area is kept clear and to make sure that foreign objects stay out of the holster.  The manufacturer also contended that Oleksza was aware of the danger of letting foreign objects into his holster from his training.  In addition, a state investigation found no holster defect, and they argued that it is impossible to design a holster that prevents all objects from entering it.

Plaintiff’s counsel also presented ten state troopers to testify in the case as to the defectiveness of the holster.  The jury was also shown pictures of other holsters that showed more trigger protection than the Gould & Goodrich one.  The jury was asked to decide whether the defect was a cause of harm under the consumer expectations test and the risk utility test, and they found that the holster was defectively designed and manufactured.

This case displays the potential big payouts of products liability cases, even if there are numerous warnings and training for a product.  We suspect the testimony of the ten other officers were persuasive to the jury.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Broken Hip doesn’t Break the Bank (Federal, PA)

The Third Circuit recently upheld a pretrial win for Zimmer Holdings Inc. over claims launched by a patient who sued the medical device maker after his hip replacement broke in Kline v. Zimmer Holdings, Inc.  In affirming, the Court found that there was no showing that Zimmer acted unreasonably in designing the product or warning.

On January 13, 2010, Gregory Kline underwent a total hip replacement.  His surgeon implanted a Femoral Stem with Kinectiv Technology.  On April 6, 2011, Kline’s hip replacement stem fractured at the neck.  Kline sued Zimmer Holdings Inc., Zimmer Inc., and Zimmer United States Inc. (collectively, “Zimmer”), alleging several state-law product liability claims.  By the time the case reached summary judgment, Kline’s only remaining claims were negligent design defect and negligent failure to warn.  The District Court granted summary judgment to Zimmer on all counts.

On appeal, the Third Circuit affirmed the judgment of the District Court because Kline failed to show that a reasonable jury could find that any unreasonable act or omission by Zimmer caused him harm.  In support of his position, Klein argued that the failure of the Zimmer device in another patient treated by Kline’s doctor was key to proving his claims for negligent design defect and negligent failure to warn.  However, the Court held that evidence regarding the other patient’s device failure was not admissible because it did not involve the same product under similar circumstances, nor did it (1) show notice to the defendant of the danger, (2) show the existence of the danger, or (3) show the cause of the accident.

With respect to Kline’s claim for negligent failure to warn, Kline’s theory, supported by Zimmer’s experts, was that an individual of Kline’s weight or body mass index who engaged in vigorous activity was at a higher risk of device failure.  However, as Kline acknowledged, a package insert for Zimmer’s device warned about those risks, at least in general terms.  Accordingly, there was no evidence in the record that the risk was of a magnitude to require a contraindication at any specific weight, body mass index, or activity level, except that the device broke in Kline.

Kline’s failure to prevail only goes to show that plaintiff’s counsel must still be able to prove that the product in question is in fact defective when that product fails, as opposed to inadvertent product failure.  Thanks to Hillary Ladov for her contribution to this post. Please email Brian Gibbons with any questions.


Stunted Growth of Chickens Covered Under CGL Policy (NJ)

In Phibro Animal Health Corp., v. National Union Fire Ins. Co., a New Jersey appellate court recently considered the “impaired property exclusion” in the commercial general liability policy of a poultry food additive maker.  Phirbo, an animal health products manufacturer, sold a poultry feed additive intended to prevent a parasitic disease. Phibro customers reported that while the additive protected chickens from disease, its use ultimately lead to stunted chicken growth. The customers reported that as a result of the undersized chickens, they experienced lower meat production and increased costs. Phibro sought coverage for its customers’ claims for economic losses from its insurer, National Union, ultimately filing suit after its claim was denied.

The trial court granted National Union’s motion for summary judgment, concluding the alleged economic losses did not constitute property damage caused by an occurrence under the policy. The court further ruled that even if coverage existed, the impaired property exclusion would bar coverage.

But the Appellate Division disagreed, concluding that this was not a “faulty work” type of case and that adverse effects constituted an accidental occurrence and property damage under the CGL policy. The panel explained that the chickens that consumed the additive suffered harm to their physical condition, which met the policy’s definition of property damage. The panel also explained that the policy term “physical injury” does not require that the chickens were incapable of being sold and that this partial loss of their use independently qualifies as property damage.

The panel remanded the case to the lower court to further assess whether the policy’s impaired property exclusion precludes coverage. National Union argued that this exclusion applied because the customers’ chickens were damaged by a defect in Phibro’s product (and were thus “impaired”), but could be “restored to use” by removing the drug from their diets. The panel stated that the exclusion would apply only if the chickens reasonably and feasibly could be restored to their normal size and weight within a commercially viable time frame at a commercially reasonable cost after removal of the additive, and more time and evidence was needed to make this  factual determination.


Governmental Standards Not Necessarily A Safe Haven For Products Liability Claim (PA)

Is evidence of a product’s adherence to governmental standards admissible in strict liability cases in Pennsylvania?  Short answer, maybe.

The Pennsylvania Superior Court was faced with this issue in Webb v. Volvo Cars of North America.  In Webb, a tangled logic examined whether such evidence, which might be admissible with respect to a negligence claim, should be permitted in an action based in solely in strict liability.  Seemingly at odds were  the Supreme Court decision of Tichner  v. Omega Flex, Inc. that Volvo argued would permit such evidence and plaintiff’s reliance upon Lewis v.  Coffing Heist Division and Gaudio v. Ford Motor Co. that would prohibit it.

In Webb, the trial court allowed evidence that the defendant’s product design adhered to governmental standards.  The jury returned a defense verdict, and the plaintiff appealed.  The Pennsylvania Superior Court concluded that the trial court erred by not instructing the jury to disregard the governmental standards evidence and granted the plaintiff a new trial.

So does this ruling mean that the introduction of the evidence was improper?  It would seem that the Court addressed that issue, right?  Well not exactly.  The issue was whether or not the Pennsylvania Supreme Court overruled Lewis and Gaudio, the cases that prohibited the admission of governmental standards evidence, with its decision in Tincher v. Omega Flex.  The Webb Court left the “admission” question on the table.  That said, until the issue reaches the Pennsylvania Supreme Court it seems that defendants should continue to inform juries of how their products were produced in accord with those standards created by the state and federal government.

Thanks to Marcus Washington for his contribution.


Bunk Beds Are Not Per Se Dangerous (PA)

In defense of a negligence action, whether a duty is in fact owed is a threshold question. Without duty, there can obviously be no breach let alone causation.  As the existence of a duty is a question of law to be determined by a judge, it can be a determining factor in a motion for summary judgment, as it was in the case of Yun v GREAT WOLF LODGE OF THE POCONOS, LLC,.

The plaintiffs’ family of four was given a free room upgrade for their Pocono vacation at Great Wolf Lodge, a resort with indoor water parks and attractions. The upgraded room included an adult bed, pull out sofa and bunk beds. For parents with two daughters aged four and two years, there were ample sleeping options.  The infant four year old was excited to sleep on the top bunk – she had never done so before. The parents weighed the dangers of her sleeping in the top bunk. Despite the fact that she slept in a low level bed with the side blocked off at home (for fear that she may fall out of bed), they ultimately decided that the top bunk was not dangerous.

At approximately 12:00 A.M., the parents heard a thump and rushed to the children’s room and found that their daughter had fallen from the top bunk onto the carpeted floor. She began vomiting immediately and every 2 hours thereafter. They took her to the hospital where she was diagnosed with a closed nondisplaced skull fracture.

In the lawsuit, the plaintiffs pursued premises and products liability theories based on the premise that the bunk bed was a dangerous condition. They disputed that a warning label was affixed to the bunk bed – despite the defendant’s photographic proof of a label that stated, “Never allow a child under 6 years of age on upper bunk.”

In opposition to the defendant’s summary judgment motion, the plaintiffs insisted that a question of fact existed as to the negligence of Great Wolf. They contended the free room upgrade was negligent given the age of their daughters.  They argued that there had been a failure to warn. Essentially, they contended that the bunk beds were a dangerous condition.

In Pennsylvania, the elements of a negligence claim are: (1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) defendant’s failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; (4) actual loss or damage resulting to the plaintiff. However, according to the Restatement (2d) of Torts, “a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

Great Wolf argued that bunk beds were not a dangerous condition, in support if this they pointed to two non-controlling cases: Rubin v. Olympic Resort, Inc. (New York) and Buck ex rel v. Camp Wilkes, Inc., (Mississippi) both of which stated that notwithstanding any design defects, the potential danger of a bunkbed is obvious and it is for the parents to determine whether a bunk bed is suitable for their children.  In fact, the plaintiff parents were admittedly aware of the potential danger of allowing their daughter to sleep in the top bunk. Great Wolf offered expert opinion that the bunk beds in the resort did not violate any code or regulations.  He opined that the bed was not used in accordance with the warning provided.

Even granting the plaintiffs all favorable inferences, the federal district court could not find a duty on the resort to not offer bunk beds and granted Great Wolf’s motion for summary judgment.

Thanks to Sathima Jones for her contribution.



Philadelphia Jury Returns Defense Verdict on Oreo Conveyor Accident

A recent Philadelphia County verdict suggests that Philadelphia’s love of Oreos trumps its love of plaintiffs. A jury in Philadelphia County – a typically plaintiff-friendly jurisdiction – recently returned a defense verdict in favor of three companies that manufactured and supplied the Oreo production line equipment at the Kraft Factory formerly located in Northeast Philadelphia.

 On August 19, 2011, plaintiff, a Kraft employee, crawled underneath a guardrail to clean residue from the conveyor belt’s moving rollers. While the plaintiff was on his hands and knees, his shirt got caught in the moving rollers. He attempted to free his shirt with his right arm, which then got caught in the moving rollers. Plaintiff sustained a crush injury, fractured wrist, and fractured humerus. He claimed he permanently lost use of his right arm.

In O’Gorman v. Rockwell Automation, Inc., Systemax Technical Services, Inc., and Rumsey Electric Co., plaintiff claimed the defendants did not, but should have warned end users that the free-spinning roller required safety guarding. The plaintiff also claimed that a guard rail was missing from the equipment at the Kraft facility.

 Defendants viewed this as an assumption of risk case. In support of this theory, defendants argued that the plaintiff’s actions violated Kraft policies and procedures in that he should not have attempted to clean the equipment while it was in operation. Defendants further argued that there was no evidence of a defect on the Oreo production line and that plaintiff could not establish that defendants or breached any duty.

Plaintiff initially demanded $8 million, but ended up with a defense verdict.

Perhaps the jury was persuaded by plaintiff’s own negligence, or by the defendants’ remote role in respect of the Oreo conveyor belt operation. Regardless, this case demonstrates that there can be major pay off to taking a case all the way to verdict, even when there is a significant injury, and even when there are numerous defendants with deep pockets.

Thanks to Rachel Freedman for her contribution to this post.