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:
In Mehner v. Furniture Design Studios, Inc., 2023 WL 2351688 (D. Neb. Mar. 3, 2023), the court granted summary judgment on product defect claims by a plaintiff allegedly injured by the collapse of a restaurant chair eight years after the manufacturer delivered it. This well-reasoned decision reminds us that even for fairly simple products, expert proof may be required to establish a defect – and failure to develop the factual predicate in discovery may leave the plaintiff without an opinion (and without a case). It also highlights important limitations in the “malfunction theory” that sometimes allows a plaintiff to proceed without expert proof or identification of a specific defect.
Plaintiff was eating at a restaurant in Omaha when his chair allegedly collapsed. He sued Furniture Design Studios (FDS), which designed, manufactured and sold the chair, asserting strict liability and negligence design defect claims.
Continue reading “Dismissal of a Broken Chair Claim Shows That Expert Testimony May Be Essential Even for a “Simple” Product”
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”
