David Abernethy
David Abernethy is a partner in Products Liability Practice Group, resident in the Philadelphia office. He represents global pharmaceutical and medical device companies in mass tort and individual products actions at the trial and appellate level. David is a Fellow of the American College of Trial Lawyers.
View the full bio for David Abernethy at the Faegre Drinker website.
Articles by David Abernethy:
Peer-reviewed literature can be a powerful tool in attacking an opposing expert’s opinions. A solid, on-point article can do more than merely satisfy several of the so-called Daubert factors for assessing reliability – by showing a court that others in a challenged expert’s field disagree with his or her opinions, literature can remove any expert “aura” that might discourage a lay judge from discharging his or her duty as a gatekeeper. Presenting literature that directly undermines the expert’s opinion can make the difference between winning and losing a motion to exclude, especially where the expert’s opinion is not supported by other literature accepted in the field.
A recent example is U.G. v. United States, 2022 WL 7426212 (S.D.N.Y. Oct. 13, 2022), a medical malpractice action under the Federal Tort Claims Act in which plaintiff suffered a shoulder injury during his birth and was later diagnosed with permanent Erb’s palsy, or brachial plexus injury. He alleged that the obstetrician caused the injury by using excessive force on his head and shoulders during delivery. In support of his claims, he offered two causation experts – an obstetrician/gynecologist and a pediatric neurologist– both of whom claimed the “totality of the circumstances” ruled out several possible alternate causes and thus showed that the defendant caused the injury.
Continue reading “Experts’ Disagreement with Medical Literature Leads to Exclusion”
For some time, we have been following the emerging case law on whether companies, such as Amazon, that create an online marketplace for other sellers, may be held liable when products supplied by those sellers cause injury. The cases have gone both ways, but on November 30 Amazon added another ruling to its win column when a New York appellate court upheld a ruling dismissing negligence and breach-of-warranty claims based on injuries allegedly caused by a defective service from a third-party provider on a product sold by a third party on Amazon’s website.
In Wallace v. Tri-State Assembly LLC (Case No. 2020-04820), the First Department of New York’s Appellate Division affirmed an order dismissing claims against Amazon by an individual who was injured after the handlebars on his electric bike came apart, causing him to fall. His father ordered the bike on Amazon’s website from a third-party seller in China, and at the same time purchased an assembly option from an Amazon-approved service provider, Tri-State. Plaintiff alleged that Amazon and its “agents” were negligent and breached warranties of fitness and merchantability.
Continue reading “Amazon Notches Another Win on Personal Injury Liability Relating to Third-Party Seller Products”
A frequent and vexing issue for corporate defendants, in products liability and other cases, is the demand for a deposition of the company’s CEO or depositions of other senior executives. Even when these executives were not involved in the relevant events and have no relevant personal knowledge, plaintiffs push for their depositions to gain leverage for settlement or for other illegitimate reasons.
Many federal courts provide protection from these demands by applying the “apex doctrine,” a rule that usually shields high level officers if they have no unique personal knowledge or involvement and the relevant information is available from other sources. These courts have recognized that corporations may be involved in many lawsuits and forcing busy executives to testify when they have no significant personal knowledge or involvement would impair their ability to manage the corporation’s business.
Continue reading “Georgia Supreme Court Will Address the Problem of Abusive “Apex” Depositions”
In many personal injury cases, including products cases, the most significant exposure is pain and suffering or similar damages that cannot readily be measured in dollars. Juries are usually constrained by specific testimony or documentary evidence in awarding lost income, medical expenses, or other losses that can be measured specifically, but awards for pain and suffering and similar damages are constrained only by jurors’ subjective views (and usually permissive standards of legal review such as whether the award “shocks the conscience”).
Not surprisingly, when large verdicts are appealed, the damages arguments often focus on the excessive amounts of pain and suffering or similar awards. But a recent order from Pennsylvania’s highest court carries a warning for defendants, as the Court agreed to consider whether a failure to demand an itemized list of each category of damages on the verdict sheet waives defendant’s right to challenge the award.
Continue reading “Itemize Damages or Waive Appeal? Pennsylvania’s Supreme Court Will Consider Whether Failure to Request an Itemized Verdict Waives the Right to Challenge an Award on Appeal”
A California Court of Appeal has held that Amazon may be strictly liable for injuries to customers who bought products from third-party sellers offered on Amazon’s website. (See discussion of Bolger decision here).
In Kisha Loomis v. Amazon.com LLC, plaintiff sought damages from Amazon for burns allegedly caused by a defective hoverboard she purchased through Amazon’s website. Amazon won summary judgment from the trial court, which held that Amazon did not fall within the chain of distribution and could not be liable under the “marketing enterprise theory.”
Continue reading “Strike Two for Amazon in the California Court of Appeal”
On March 25, the U.S. Supreme Court decided Ford Motor Co. v. Montana Eighth Judicial District Court, revisiting the issue of due process limitations on the exercise of personal jurisdiction, most recently addressed by the Court in 2017 in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1783 (2017) (“BMS”). A unanimous Court (8-0, with Justice Barrett not participating) held in Ford Motor that courts in Montana and Minnesota could hear claims by residents of those states alleging injuries sustained in accidents that occurred there involving Ford vehicles. Relying on Ford’s extensive contacts with those states, which consisted of efforts to create and serve local sales and service and repair markets for the same kinds of vehicles, the Court concluded these plaintiffs’ claims were sufficiently “related to” Ford’s local contacts, even though the actual vehicles in the accidents were designed, manufactured and initially sold in other states. (We commented here on the state court decisions in these cases before Ford sought certiorari.)
Continue reading “Another Roadside Attraction: The Supreme Court’s Latest Route Guidance on Personal Jurisdiction in Products Liability Cases”
