Preparing for In-Person Trials in the PCCP during COVID

In March 2021, the Philadelphia Court of Common Pleas (“PCCP”) released its Protocols and Guidelines for conducting in-person civil jury trials during the COVID-19 pandemic (the “Protocols”). To curb the spread of COVID-19, the Protocols outline several precautions, including mask requirements, enforced social distancing, reduced capacity, strategically placed Plexiglass, and the use of streaming technology. Now, over two months later, more Americans are fully vaccinated and the Centers for Disease Control and Prevention (“CDC”) recently stated that fully vaccinated individuals may forgo wearing masks indoors and outdoors. However, the Protocols currently remain intact. While the Commonwealth of Pennsylvania often has stated that it would follow the CDC’s most recent masking guidelines, Philadelphia has often been more restrictive than the rest of the state. Regardless, it remains unclear what impact the CDC’s guidelines will have on future civil jury trials in the PCCP. Therefore, when preparing for trial in the PCCP, attorneys must familiarize themselves with the Protocols. Below are highlights from the Protocols which attorneys should consider when preparing for trial in the PCCP.

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Eleventh Circuit Holds Expert Qualified in Surgical Tool Suit Despite Lack of Experience Using the Product

The Eleventh Circuit recently reinstated a case alleging a surgical tool caused internal burns during a hysterectomy surgery, holding that the district court erred in disqualifying an expert on the basis that he had never before used the tool.  The decision is a reminder of the importance of asserting and maintaining precise and strategic Daubert challenges.

In Moore v. Intuitive Surgical, Inc., No. 19-10869, the plaintiff underwent a laparoscopic hysterectomy in which her surgeon used a robotic miniature electrified scissor tool manufactured by the defendant.  Following surgery, the plaintiff experienced, among other things, abdominal pain and eventually learned she had sustained internal burns to her left ureter during the surgical procedure.  The tool was recalled by the manufacturer a few months after the plaintiff’s procedure, and the plaintiff filed suit.

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CPSC’s Expanding Role under the Biden Administration

During the Trump administration, the number of consumer product safety recalls fell for three years in a row. When Robert Adler became Acting Chair of the U.S. Consumer Product Safety Commission (CPSC) in 2019, he compared his role to that of a caretaker. Now, under the Biden administration, the CPSC is undergoing a shift toward increased regulation and more aggressive enforcement. Acting Chair Adler confirmed the same earlier this year, stating that the Biden administration “clearly views product safety in different terms,” and that he “plan[s] to modify [his] job’s metaphor from caretaker to gardener.”

This shift in thinking is evident in the CPSC’s actions in recent months. Since President Biden’s inauguration, the CPSC has announced 57 product recalls in addition to a $7.95 million civil penalty settlement with Cybex International, Inc. for alleged failure to immediately report a known product safety defect related to its exercise equipment. And on April 17, the CPSC issued an urgent warning to consumers to stop using the Peloton Tread+ exercise machine around small children or pets. The CPSC noted that though its investigation of reported incidents of injury or death related to the machine was still ongoing, it had “found that the public health and safety requires this notice to warn the public quickly of the hazard.”

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