Product Liability Update 2018

Transcription

1 Product Liability Update 2018 Jim Ronca Ryan Hurd Anapol Weiss P.C. Philadelphia, Cherry Hill NJ, Scottsdale AZ

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3 The most important case decided in 30 years Tincher v. Omega Flex Inc 104 A.3d 328 (Pa. 2014) Tincher s house burned down when a lightning strike energized corrugated stainless steel gas tubing designed and manufactures by Omega, known as Tracpipe. The jury found the Tracpipe was defective and the defect was the cause of the fire and awarded $958,000.

4 NOW TINCHER II The Superior Court decision after Remand Tincher v. Omega Flex Inc Pa Super 33 (Pa. Super. Feb. 16, 2018)

5 NOW TINCHER II The Superior Court decision after Remand Tincher appeal was accepted by Supreme Court on limited issue of whether Restatement Third should have been applied. Tincher I ruled 402A applied but overruled aspects of prior decisions including Azzarello v. Black Bros. Case sent back to Trial Court to determine what to do with the verdict

6 NOW TINCHER II The Superior Court decision after Remand Trial court essentially determined this charge was harmless. Here are relevant portions: The manufactur[er] of a product is really a guarantor of its safety. When we talk about strict liability, the product must be provided with every element necessary to make it safe for its intended use [a]. And without any conditions that make [] it unsafe for its intended use. If you find that the product in this case, the TracPipe, at the time it left the defendant[ ]s control, lacked any elements necessary to make it safe for its intended use, or contained any condition that made it unsafe for its intended use, and there was an alternative more practical design, more safer [sic] design, then the product is considered defective and the defendant is liable for the harm, if you find that defect caused the harm[, and] was the proximate cause of the harm to the plaintiffs.

7 NOW TINCHER II The Superior Court decision after Remand Trial court charge continued Now, ladies and gentlemen, a product is not defective merely because it is possible to be injured while using the product. The imposition of strict liability is not meant to transform manufacturers into insurers of all injuries that are potentially possible and [sic] at the hands of a product. A manufacturer of a product may be a guarantor of the product[ ]s safety, but under no circumstances is the manufacturer an insurer of the safety of the product. The law does not force the manufacturer to become the insurer of the product under all conditions and uses. A manufacturer is not required to make an already safe product safer, or to utilize the safest of all designs. The manufacturer is not required to produce or design a product incorporating only features representing the ultimate in safety design.

8 NOW TINCHER II The Superior Court decision after Remand The Superior Court disagreed finding that the trial court abused discretion in not granting a new trial because the jury charge was consistent with Azzarello, now overruled. The charge thus contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that leaves the suppliers control lacking any element necessary to make it safe for its intended use, and a declaration that a manufacturer is really a guarantor of [a product s] safety but not an insurer of [that] safety. Tincher, 104 A.3d at 339 (quoting charge). In addition, the Superior Court found that the jury must be instructed that they, the jury, must determine if the product is unreasonably dangerous.

9 NOW TINCHER II BUT the guarantor language pre-dated Azzarello Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24 ; 319 A.2d 903 (1974) Today, as the Superior Court correctly recognized, a manufacturer by virtue of section 402A is effectively the guarantor of his products' safety. See Webb v. Zern, supra; Kassab v. Central Soya, supra. Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. Citing Dean Prosser and Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 462, 150 P.2d 436, (1944)

10 NOW TINCHER II BUT the guarantor language pre-dated Azzarello Restatement Second 402A, comment c SOUNDS LIKE A WARRANTY c. On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.

11 NOW TINCHER II BUT the guarantor language pre-dated Azzarello Common Definitions of Warranty Merriam Webster a usually written guarantee of the integrity of a product and of the maker's responsibility for the repair or replacement of defective parts Dictionary.com a written guarantee given to the purchaser of a new appliance, automobile, or other item by the manufacturer or dealer, usually specifying that the manufacturer will make any repairs or replace defective parts free of charge for a stated period of time. Definition for new English learners a written guarantee given to the purchaser of a new appliance, automobile, or other item by the manufacturer or dealer, usually specifying that the manufacturer will make any repairs or replace defective parts free of charge for a stated period of time.

12 NOW TINCHER II Other Superior Court opinions Cancelleri v. Ford Motor Co., 2016 Pa. Super. Unpub. LEXIS 53 In Cancelleri v. Ford Motor Co.the Superior Court approved a charge containing the guarantor of safety and every element necessary language, and spoke approvingly of the Suggested Standard Jury charge on defect. This was a crashworthiness case, and the Superior Court held that the jury had already considered whether the vehicle was unreasonably dangerous under the crashworthiness standards. Am. Honda Motor Co. v. Martinez 2017 Pa. Super. Unpub. LEXIS 1593 April 19, 2017 Honda argued using the Azzarello guarantor / any element instruction violated Tincher. The Superior court made quick work of this saying only that although Tincher overruled Azzarello it did not specifically require the trial court to remove the guarantor charge.

13 NOW TINCHER II Suggested Standard Jury Instructions The Pennsylvania Suggested Standard Jury Instructions do not contain the guarantor of safety language but does have the every element language (Civ) GENERAL RULE OF STRICT LIABILITY A product is defective and the defendant is liable for all harm caused by the product if you find that at the time the product left defendant s control, it lacked any element necessary to make it safe for [its intended] use [or use in an unintended but reasonably foreseeable way], or contained any condition that made it unsafe for [its intended] use [or use in an unintended but reasonably foreseeable way]; and the product reached the user or consumer without substantial change in the condition in which it is sold.

14 Am. Honda Motor Co. v. Martinez 2017 Pa. Super. Unpub. LEXIS 1593 April 19, 2017 What else did we learn from this case? Facts A 1999 Honda Integra rolled over in a collision. A passenger was rendered a quadraplegic. Suit was filed complaining of a defective seatbelt. The Jury entered a verdict of $55.3 million on June 26, 2014, 5 months before Tincher I was decided.

15 Am. Honda Motor Co. v. Martinez 2017 Pa. Super. Unpub. LEXIS 1593 April 19, 2017 Issues: 1. Who decides Unreasonably Dangerous? The jury under Tincher I but because this was a crashworthiness case the jury had considered alternative safer design.

16 Note unreasonably dangerous is not a magic phrase Some of the most important early commentators argued that it was confusing and might be interpreted by a jury to mean Ultrahazardous or abnormally dangerous Wade, On the Nature of Strict Liability in Torts, 44 Miss. L.J.825, 832 (1973) Alternative phrases have been suggested such as not duly safe Id. At 833, and not reasonably safe, Wade, Strict Tort Liability of Manufacturers, 19 S.W.L.J. 5, 15 (1965)

17 Am. Honda Motor Co. v. Martinez 2017 Pa. Super. Unpub. LEXIS 1593 April 19, 2017 Issues: 1. Who decides Unreasonably Dangerous? The jury under Tincher I but because this was a crashworthiness case the jury had considered alternative safer design. 2. Can you still use the guarantor of safety/lacking any element language? YES

18 Am. Honda Motor Co. v. Martinez 2017 Pa. Super. Unpub. LEXIS 1593 April 19, 2017 Issues: 1. Who decides Unreasonably Dangerous? The jury under Tincher I but because this was a crashworthiness case the jury considered alternative safer design. 2. Can you still use the guarantor of safety/lacking any element language? YES 3. Are industry standards and federal regulations admissible? NO Gaudio and Lewis not overruled

19 Who is a seller? Oberdorf v. Amazon.com, Inc., 2017 U.S. Dist. LEXIS (W.D.PA. 2017) In January 2015, while walking her dog, plaintiff suffered severe injuries to her left eye when the retractable leash she was using suddenly malfunctioned, snapping backwards and hitting her violently in the face. Plaintiff purchased the leash from a third party vendor called Furry Friends on Amazon Marketplace. After the injury, plaintiff was unable to make contact with Furry Friends, the manufacturer. Plaintiff sued Amazon as a seller under 402A.

20 Who is a seller? Oberdorf v. Amazon.com, Inc., 2017 U.S. Dist. LEXIS (W.D.PA. 2017) Is Amazon Marketplace a seller?

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22 Who is a seller? Oberdorf v. Amazon.com, Inc., 2017 U.S. Dist. LEXIS (W.D.PA. 2017) Is Amazon Marketplace a seller? In this case, Amazon did not even fulfill the order and had no contact with the seller. But, payment was through Amazon and Amazon maintained some rules for sellers.

23 Who is a seller? Oberdorf v. Amazon.com, Inc., 2017 U.S. Dist. LEXIS (W.D.PA. 2017) Is Amazon Marketplace a seller? In a case of first impression the court decided to treat Amazon like an auctioneer or newspaper classified section and not as a seller.

24 ARE REGULATIONS, STANDARDS AND INDUSTRY CUSTOM AND PRACTICE ADMISSIBLE? Renninger v. A&R Mach. Shop, 163 A.3d 988 (Pa. Super. 2017) (allocatur denied) Plaintiff was employed at a plant that manufactured modular homes. While under construction, the modular homes move along an assembly line on wheeled casters. Plaintiff was injured when a caster ran over his foot. Plaintiff sued manufacturer alleging the casters should have included toe guards. Manufacturer made casters to employer s specifications. Originally, orginally placed the casters inside the outer frame to avoid them running over a worker s foot. Later, employer repositioned the casters to the outer edge to prevent bowing of floor joists. Plaintiff was not aware of an OSHA regulation requiring him to wear steel toed boot and Plaintiff was also aware that casters did not have a guard. Plaintiff s expert testified that Defendant offered toe guards in their catalog although they would have had to be specifically designed for these casters and would increase cost by 10-12%. Defense expert testified there is no industry standard nor any regulations that require toe guards.

25 ARE REGULATIONS, STANDARDS AND INDUSTRY CUSTOM AND PRACTICE ADMISSIBLE? Renninger v. A&R Mach. Shop, 163 A.3d 988 (Pa. Super. 2017) (allocatur denied) NOT DECIDED In a published opinion, the Superior Court basically avoided the question saying the evidence was not harmful. Plaintiff had relied on California law cited by PA Supreme Court in Tincher I but Court pointed out that was questioned in Kim v. Toyota, currently before the Cal. Supreme Court

26 Kim v. Toyota Motor Corp., 243 Cal. App. 4th 1366, 197 Cal. Rptr. 3d 647 (Cal. Ct. App. 2016) Plaintiff alleged lack of electronic stability control feature caused a crash. The case was tried under risk utility theory. Court ruled there are two lines of cases in Cal., one excluding all evidence and one allowing some evidence of industry custom and practice as part of the risk utility factors. The court gives examples of some things that might be admissible. AND all subject evidence to the prejudice v. probative value test (Rule of Evidence 403).

27 Kim v. Toyota Motor Corp., 243 Cal. App. 4th 1366, 197 Cal. Rptr. 3d 647 (Cal. Ct. App. 2016) Examples Not admissible All manufacturers sell pickup trucks without ESC. Admissible After Kim s argued Toyota s intent in not including ESC on pickup trucks, Toyota could counter with evidence that rebuts the argument. Lesson: Be careful, your arguments may open a door.

28 Kim v. Toyota Motor Corp., 243 Cal. App. 4th 1366, 197 Cal. Rptr. 3d 647 (Cal. Ct. App. 2016) MORE IMPORTANTLY, THE CALIFORNIA SUPREME COURT NOT ONLY ACCEPTED THE CASE BUT ORDERED THAT THE APPEALS COURT DECISION IS NON-PRECIDENTAL. NO DECISION AS OF MARCH 7, 2018

29 IS CONDUCT OF PLAINTIFF OR THIRD PARTIES ADMISSIBLE? Anderson v. Pirelli Tire, LLC 2017 Pa. Super. Unpub. LEXIS 3945 October 24, 2017, MEMORANDUM Plaintiff crashed when his tire blew out. Plaintiff claims defect. Defendants said plaintiff kept tire underinflated. Plaintiff filed motion in limine as to conduct.

30 IS CONDUCT OF PLAINTIFF OR THIRD PARTIES ADMISSIBLE? Anderson v. Pirelli Tire, LLC 2017 Pa. Super. Unpub. LEXIS 3945 October 24, 2017, MEMORANDUM Court ruled Evidence admissible on causation. Jury could understand difference. Defendant never argued negligence.

31 IS CONDUCT OF PLAINTIFF OR THIRD PARTIES ADMISSIBLE? Anderson v. Pirelli Tire, LLC 2017 Pa. Super. Unpub. LEXIS 3945 October 24, 2017, MEMORANDUM Court ruled Evidence admissible on causation. Jury could understand difference. Defendant never argued negligence. Lesson If you are careful, your arguments may not close a door

32 Dodson v. Beijing Capital Tire Co. Middle District PA September 27, 2017 Contributory Negligence and Negligence of third parties in Product Liability case. Plaintiff moved in limine to exclude evidence of contributory negligence and employer negligence. Court allowed the evidence on Causation.

33 Dodson v. Beijing Capital Tire Co. Middle District PA September 27, 2017 Contributory Negligence and Negligence of third parties in Product Liability case. Plaintiff moved in limine to exclude evidence of contributory negligence and employer negligence. Court allowed the evidence on Causation.

34 Dodson v. Beijing Capital Tire Co. Middle District PA September 27, 2017 Contributory Negligence and Negligence of third parties in Product Liability case. Plaintiff moved in limine to exclude evidence of contributory negligence and employer negligence. Court allowed the evidence on Causation. Evidence of misuse, including unforeseeable, outrageous, and extraordinary use of a product, is admissible in considering the causation element of a strict products liability design defect claim. Defendant has burden of proof

35 Dodson v. Beijing Capital Tire Co. Middle District PA September 27, 2017 Contributory Negligence and Negligence of third parties in Product Liability case. Plaintiff moved in limine to exclude evidence of contributory negligence and employer negligence. Court allowed the evidence on Causation. Court allowed evidence of the employer s negligence under the same theory. Court also allowed evidence of no prior claims

36 Consumer Expectations test What is knowable to a consumer? Igwe v. Skaggs, 258 F. Supp. 3d 596 (W.D. PA. 2017) A police officer drove his vehicle at a high rate of speed into an intersection a struck and killed plaintiff s decedent who was traveling through a green light. The police department had purchased an Opticom Emergency Vehicle Preemption System which was supposed to assist emergency vehicles approaching traffic signals, by enabling another system to preempt the traffic signal and change the green to favor the emergency vehicle.

37 Consumer Expectations test What is knowable to a consumer? Igwe v. Skaggs, 258 F. Supp. 3d 596 (W.D. PA. 2017) Plaintiff relied on Consumer Expectations test, police being the consumers. The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

38 Consumer Expectations test What is knowable to a consumer? Igwe v. Skaggs, 258 F. Supp. 3d 596 (W.D. PA. 2017) The police were the consumers. The evidence was clear that information accompanying the product clearly stated that vehicles could outrun the system. Police were trained to know this. Officer in this case did know it. Because danger was knowable SJ for manufacturer.

39 Smith v. Howmedica Osteonics Corp., 251 F. Supp. 3d 844 (E.D. Pa.2017) Restatement 402A, comment k, does not exclude strict liability for a manufacturing defect in a medical device.

40 k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

41 CONTRIBUTION IN STRICT LIABILITY CASES Roverano v. John Crane, Inc. Superior Court of Pennsylvania December 28, 2017 Plaintiff was exposed to asbestos from 1971 to In 2014 he filed suit against 30 defendants claiming his lung cancer was caused by the exposure. The issue was how to apportion liability amongst defendants in a strict liability case under the Fair Share Act.

42 CONTRIBUTION IN STRICT LIABILITY CASES Roverano v. John Crane, Inc. Superior Court of Pennsylvania December 28, 2017 Under the Comparative Negligence Act, strict liability defendant s apportioned liability per capita. So 3 defendant s found liable is 33% each. This case was under the Fair Share Act.

43 CONTRIBUTION IN STRICT LIABILITY CASES Roverano v. John Crane, Inc. Superior Court of Pennsylvania December 28, 2017 The Fair Share Act changed the word negligence in the Comparative Negligence Statute to liability. The court concluded that the Legislature intended the act to apply to any liability including strict liability So the fact finder must determine the % of fault of all defendants, negligent and strict liability, and those percentages determine who pays what

44 CONTRIBUTION IN STRICT LIABILITY CASES Roverano v. John Crane, Inc. Superior Court of Pennsylvania December 28, 2017 Further, the Fair Share Act also says: "For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. Includes bankrupt entities!

45 Danganan v. Guardian Prot. Servs. PA Supreme Court Feb. 21, 2018 Whether a non-pennsylvania resident may bring suit under the UTPCPL, against a business headquartered in and operating from Pennsylvania, based on transactions which occurred outside of Pennsylvania?

46 Danganan v. Guardian Prot. Servs. PA Supreme Court Feb. 21, 2018 Whether a non-pennsylvania resident may bring suit under the UTPCPL, against a business headquartered in and operating from Pennsylvania, based on transactions which occurred outside of Pennsylvania? YES! The statutory language overrides the idea that the out of state actions require a sufficient nexus to Pennsylvania. Choice of law rules still apply.

47 THANKS