April 29th, 2022 by Rieders Travis in Products Liability

English v. Eisai, 2022 U.S. Dist. LEXIS 44977 (M.D. Pa. March 14, 2022) (Conner, U.S. D.J.).  This case involving a weight-loss product said that plaintiffs properly pled an alternative feasible safer design.  That means that the defendant’s motion to dismiss would be denied.  There were other claims here for warranty, fraudulent misrepresentation, concealment and the rest.  The court first looked at the express warranty claim.  The court said that, as to that claim, the court would not address the conclusory request to dismiss the express-warranty claims at this stage.  The court likewise declined to dismiss plaintiff’s negligent misrepresentation claim, although for different reasons.  Failure to warn theory is viable against prescription drug manufacturers.  The same cannot be said for plaintiff’s fraudulent misrepresentation and concealment claims.  Most district courts have held that fraud-based claims presented on a prescription drug manufacturer’s deficient warning claims are barred by Hahn v. Richter, 543 Pa. 558, 673 A.2d 888 (Pa. 1996).

Products Liability

July 23rd, 2019 by Rieders Travis in Products Liability

PRODUCTS LIABILITY-PELVIC MESH DEVICE Brown v. C.R. Bard, Inc., 2022 U.S. Dist. LEXIS 24660 (E.D. Pa. February 11, 2022) (Leeson, Jr., J.).  In this Bard pelvic mesh case, a motion to dismiss an amended was filed by Bard. Plaintiff states a negligence claim for design defect and failure to warn.  To the extent the count is based on a manufacturing defect, the motion to dismiss is granted.  The claim concerned the use of polypropylene material in the Adjust.  The strict liability claim was dismissed.  After review of Pennsylvania law and Comment k, the district court predicted that Pennsylvania would decline to apply strict liability in cases involving prescription drugs and medical devices.  Unfortunately, the court relied, in part, upon the Pennsylvania Standard Jury Instructions.  The court cited instruction 23.00.  As to strict liability claims (design defect and failure to warn), they were dismissed with prejudice.  Although a manufacturing defect may be based on strict liability, plaintiff failed to allege sufficient facts to state such a claim.  The fraud claims were dismissed.  The fraud claims were said to be based on failure to warn.  The Learned Intermediary Doctrine barred the Unfair…

Potentially Dangerous Medical Devices are Still Widely Used

February 21st, 2019 by Rieders Travis in Products Liability

Medical malpractice attorney

When patients have medical devices implanted in their bodies, they expect the device to better their lives, not kill them.  However, all too often, patients have been injured or have died due to problems with medical devices that proved to be defective. These device-related injuries can occur during an implant procedure or after the device has been in the body for years. When devices have been in the body for a while, it may be difficult to point to them as the source of the problem; and there are times when the device cannot be removed without causing additional injury or even death. According to the International Consortium of Investigative Journalists (ICIJ), defective devices have been associated with 1.7 million injuries and more than 80,000 deaths in the past ten years. Examples include: a neck implant to relieve pain that caused airway obstruction, trouble swallowing and respiratory failure artificial hips that cause cobalt poisoning and can damage the heart and brain surgical mesh that cuts through flesh and organs, causing infections and hemorrhage defibrillators that repeatedly shock patients If you or a loved one has suffered harm due to a faulty…

What Does Roundup Verdict Mean for Future Lawsuits?

October 22nd, 2018 by Rieders Travis in Personal Injury, Products Liability

What Does Roundup Verdict Mean for Future Lawsuits?

Roundup Verdict in California and Future Lawsuits Roundup is a product commonly used by homeowners and commercial landscapers to kill weeds, but it has also been accused of killing people. Multiple lawsuits have been filed in recent years contending that Roundup (or glyphosate, the active ingredient in Roundup) is “dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and that it lacked proper warnings and directions as to the dangers associated with its use.” Now, a jury at the Superior Court of California in San Francisco has decided in favor of a plaintiff who alleged that Roundup caused his cancer. The jury awarded Dewayne Johnson $289 million in damages, $250 million of which is intended to punish Monsanto, the company that makes the herbicide. This verdict sets a precedent for thousands of other cases that similarly claim that Roundup causes non-Hodgkin's lymphoma, an aggressive cancer that starts in the body’s immune system. After the trial, Monsanto issued a statement saying that it stands by the studies that suggest Roundup does not cause cancer. The company intends to appeal this decision and continue to defend the…


March 8th, 2018 by Rieders Travis in Products Liability

Tincher v. Omega Flex, Inc., 2018 Pa. Super. LEXIS 117 (February 16, 2018) Lazarus, J.  Omega Flex, Inc. appeals from the judgment entered in favor of Terence D. and Judith R. Tincher following a jury trial and the denial of its post-trial motions.  Omega Flex contends that it is entitled to a new trial because the Pennsylvania Supreme Court has determined that the trial court’s jury instruction contained a fundamental misstatement of the governing law.  We agree and vacate the judgment, reverse the order denying post-trial relief, and remand for a new trial. This case involved a fire where investigators determined that a nearby lightning strike caused a small puncture in corrugated stainless steel tubing that transported natural gas to a fireplace located on the first place of the residence.  Heat caused by lightning strike ignited natural gas and caused a fire.  No one was injured, but the fire caused significant property damage.  The stainless steel tubing installed in the home which melted because of the lightning was sold by Omega Flex as part of a gas transportation system.  The Tinchers sued Omega Flex based on strict liability. Tincher I,…


May 31st, 2017 by Rieders Travis in Products Liability

Smith v. Howmedica Osteonics Corp, et al., 17-1174 (E.D. Pa. April 27, 2017) Beetlestone, J. This Court predicts that the Pennsylvania Supreme Court would not bar strict liability claims asserting a manufacturing defect against medical device manufacturers under Comment k. of Restatement 402A and Tincher. Here, Plaintiffs have plausibly alleged a manufacturing defect strict liability claim. The existence of a manufacturing defect is satisfied by the allegation that the Stryker Gamma 3 Nail System broke down after it was implanted into Mr. Smith, where it was subjected to normal and anticipated use, and that there were no reasonable secondary causes. That it existed at the time it left Defendants’ control is plausibly suggested by the allegation that the product was manufactured and shipped by Defendants to Grand View Hospital, where it was ultimately 11 implanted into Mr. Smith. And causation follows from the allegation that the failure of the Stryker Gamma 3 Nail System necessitated a subsequent surgery to remove it, as well as a total hip replacement, which gave rise to a secondary infection. Therefore, the motion to dismiss the strict liability claim insofar as it asserts a manufacturing…


July 20th, 2015 by Rieders Travis in Products Liability

Claim was that Wyeth was negligent in placing unreasonably dangerous drug on the market which was ultimately withdrawn.  In Pennsylvania, products liability law is superseded as it applies to prescription drugs under Comment k of the Restatement 2nd of Torts 402A.  Due to the inherent risks associated with prescription drugs, the Supreme Court is limited to potential causes of action to a plaintiff who alleges a strict liability claim against a drug manufacturer.  The plaintiff may advance only two theories:  1) a manufacturing defect claim; or 2) a failure to warn claim.  A failure to warn claim must be analyzed with negligent standards under Restatement 2nd of Torts 388.  Pennsylvania is one of the few states that afford Comment k protection to all prescription drugs as a matter of law.  A design defect claim for strict liability is not permitted in Pennsylvania when it is asserted against a manufacturer of prescription drugs.  A drug cannot be deemed unreasonably dangerous even if it is defectively designed so long as the drug is manufactured properly and contains adequate warnings.  We agree however that Comment k does not apply to a negligent design…

The Law Show – Featuring Mark Hager

February 4th, 2015 by Rieders Travis in Products Liability

Cliff Rieders, the host and creator of "The Law Show," aired twice monthly on WXPI public access radio, Williamsport, Pennsylvania, interviewed Professor Mark Hager.  Professor Hager is currently residing in Sri Lanka.   Hager, a graduate of Harvard Law School, has taught law for over 20 years prior to relocating.   One of Professor Hager's interests has been the evolving law of products liability.  Products liability is the law which concerns the safety of products.  In products liability law, the emphasis is on the safety of the product rather than the negligence of the manufacturer or retailer.   Products liability has evolved ever since the dam burse cases from England.  In the famous case of McPherson v. Buick, the courts first addressed how to deal with an unsafe automobile.   Professor Hager talked about the difficult problem of preemption, whereby Congress will come along and usurp state laws.  When federal law applies and when state law applies can be a very confusing matter.   The American Law Institute, explained Professor Hager, developed an approach to product safety called 402A.  This law emphasized the safety of the product and the spreading…

Tincher v. Omega Flex, Inc.; Does it Contain Every Element Necessary to Make it Safe?

December 3rd, 2014 by Rieders Travis in Products Liability

One of the widely asked questions in the wake of Tincher v. Omega Flex, Inc., ___ A.3d ____, 2014 WL 6474923 (Pa. Nov. 19, 2014) is whether a jury should still be told that a product must contain every element necessary to make it safe.  As a corollary to this, lawyers have asked whether a jury must be told that while a manufacturer is not an insurer of product, it is a guarantor of the product safety. While the majority written authored by Mr. Chief Justice Castille appears on its face to be critical of Berkebile v. Brantley Helicopter Corp., 337 A.2d 893 (Pa. 1975), the court does not overrule Berkebile.  There is some question as to whether the court's overruling Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which relied upon Berkebile, negates both the "every element" and the "guarantor" language. In responding to those inquiries, it is necessary to read the opinion, for the umpteenth time, from back to front.  The key heading in Tincher is as follows: 5. Litigation Considerations Deriving from the New Strict Liability Construct a.  a.     Judge and Jury; Jury…