December 8th, 2022 by Rieders Travis in Products Liability

Cote v. Schnell Indus., 2022 U.S. Dist. LEXIS 203690 (November 8, 2022) (Brann, J.)  This is a transloader device.  The case deals with motions filed by both sides.  Most of the motions were decided in favor of the plaintiff.  Defendant raised contributory negligence, assumption of the risk, and misuse by the plaintiff.  The court granted most of the plaintiff’s motions.  Defendant could not offer evidence of plaintiff’s alleged own lack of due diligence to negate the plaintiff’s attempt to establish if the product was defective.  In a products liability case, assumption of the risk is no longer available ordinarily.  The manufacturer could not establish that the accident would have occurred in spite of the curing of the transloader’s defect.  In order to prove reckless conduct or misuse, the manufacturer would have had to show that the plaintiff would have been injured in spite of the curing of any alleged defect, or was so extraordinary and unforeseeable as to constitute a superseding cause.  The court interpreted Pennsylvania law as saying that defendant could not advance reckless conduct and product misuse as affirmative defenses in a products liability action. Defendant manufacturer could…


October 19th, 2022 by Rieders Travis in Products Liability

Cohen v. Johnson & Johnson, 2022 U.S. Dist. LEXIS 182055 (W.D. Pa. October 5, 2022) (Hornak, D.J.)  The court granted in part and denied in part defendant’s motion. Summary judgment was granted in favor of defendants and against plaintiffs on failure to warn only. Defendant’s motion for summary judgment is denied and the claim as to negligence and design defect will go forward.  The court rejected those cases that said a strict liability case cannot be brought under comment k of Section 402A of the Restatement.  The court determined defendants are not entitled to summary judgment on plaintiff’s strict liability claims because there were genuine issues of material fact.  The court also wrote about the Learned Intermediary Doctrine and granted judgment there.  The court also talked about the fraud and misrepresentation claims determining that the Learned Intermediary Doctrine does not bar plaintiff’s fraud and misrepresentation claims.  The court then went ahead and looked at each claim, and wound up granting defendant’s motion anyway.


August 25th, 2022 by Rieders Travis in Products Liability

Spear v. Atrium Med. Corp., 2022 U.S. Dist. LEXIS 145085 (E.D. Pa. August 12, 2022) (McHugh, J.)  In this case, Judge McHugh found that strict liability applies.  He rejected views of other judges.  He did say the product must be looked at on an individual basis, and found using that application on a 12(b)(6) motion, the motion should be denied.  Actually, Judge Baylson in Maietta v. Bard, used the same analysis, looking at the specific product, and he came to the opposite conclusion, that strict liability and Comment k did not apply.


August 24th, 2022 by Rieders Travis in Products Liability

Maietta v. C.R. Bard, Inc., et al., No. 19-4170 (E.D. Pa. August 19, 2022) (Baylson, J.)  Judge Baylson granted defendant’s motion on strict liability and struck it.  However, he refused to strike the other counts, which were information defect, design defect, negligence in designing the product, negligence by failing to warn, negligent misrepresentation, fraudulent misrepresentation, fraudulent concealment, loss of consortium and punitive damages.  The judge’s decision on strict liability was because of a memo called The Price Memo from the FDA in 1996 that said there were certain risks to the filter.  The judge said, therefore, that the product cannot be made unavoidably safe and that it was unavoidably unsafe and therefore Comment k applied and a strict liability claim could not be brought.  The judge, however, denied all of the other motions.


August 22nd, 2022 by Rieders Travis in Products Liability

Gustafson v. Springfield, Inc., 2022 Pa. Super. LEXIS 356 (August 12, 2022).  This federal law prevents any civil action or administrative proceeding against a manufacturer or seller of firearms moving through interstate commerce for damages, fines, etc. resulting from the criminal or unlawful misuse of that firearm by a third party.  This case involves criminal or unlawful misuse of a gun.  Trial court had granted preliminary objections and dismissed the case.  The plaintiff claims the matter falls within one of the PLCAA’s six exceptions to the definition.  One of the exceptions is an action brought against the seller for negligent entrustment or negligence per se.  Also, where there is a breach of contract or warranty.  Also an action for death, physical injury or damages resulting from a defect in design or manufacture when the gun is used in the foreseeable way. The Gustafsons filed a product liability lawsuit under Pennsylvania common law.  But for federal statute, this would have proceeded through the state courts like every other civil action.  Apparently, there was a claim here that the gun was defective.  A per curiam order was filed August 12, 2022.  The…


June 28th, 2022 by Rieders Travis in Products Liability

Sullivan v. Werner Co., 253 A.3d 730; 2021 Pa. Super. LEXIS 210 (April 15, 2021) (Pellegrini, J.)  Michael Sullivan (Sullivan) and Melissa Sullivan, his wife, brought this strict products liability action after he fell through a scaffold made by Werner Company (Werner) and sold by Lowe's Companies, Inc. (Lowe's) (collectively, Manufacturer). A jury determined that a design defect caused the accident and awarded Sullivan $2.5 million in damages. On appeal, Manufacturer raises three challenges. First, Manufacturer alleges that the trial court erred in precluding industry standards evidence. Second, Manufacturer asserts that it should have been allowed to argue that Sullivan's negligence was the sole cause of the accident. Third, Manufacturer challenges Sullivan's mechanical engineering expert, arguing that both his opinion testimony and videotaped testing lacked a proper factual foundation. We affirm. Manufacturer first contends that the trial court erred in precluding evidence that the scaffold complied with government and industry standards. Manufacturer asserts that it should have been permitted to introduce evidence of other scaffolds with deck pins similar in design to those used in its scaffold. While the parties generally agree that this evidence was inadmissible under long-standing Pennsylvania…


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…