Category: Design Defect

Pennsylvania Stays in a Minority of Two States in Prohibiting Evidence of Compliance With Government and Industry Standards in Products Liability Design Defect Cases

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Just before Christmas, the Pennsylvania Supreme Court delivered a lump of coal to products liability defendants: Sullivan v. Werner Co., 2023 WL 8859656 (Pa. Dec. 22, 2023), affirming a lower court ruling that barred evidence of a product manufacturer’s compliance with government and industry standards in a strict liability design defect case. The lower courts held that such evidence goes to due care and is relevant only to negligence, not strict liability. The affirmance appears to support the exclusion of such evidence in design defect cases based on a risk-utility theory, but leaves uncertainty for the future because only three justices joined the principal opinion; a fourth justice concurred with the result but concluded the record was inadequate to resolve the legal issue, while two others dissented.

Plaintiff sued the maker of a mobile scaffold which collapsed. Defendant served an expert report that relied in part on government (OSHA) and industry (ANSI) standards. Plaintiff filed a motion in limine to exclude evidence of compliance with those standards, relying mainly on Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987), which excluded such evidence in strict liability cases. But Defendant argued the Supreme Court’s later ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), undermined Lewis by overruling Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), a decision that had taken an extremely narrow view of the relevant facts in strict liability claims under section 402A of the Second Restatement of Torts. Tincher held that section 402A remained Pennsylvania law but “overruled Azzarello’s narrow construction . . . that prevented the jury from considering negligence-related rhetoric and concepts . . . .” Nevertheless, the trial court in Sullivan granted the motion in limine and an appellate court affirmed. Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021).

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EU Reaches Legislative Deal on Proposed ‘Digital Age’ Updates to Product Liability Directive

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Last week, the European Union made a significant breakthrough towards its goal of overhauling the 40-year-old Product Liability Directive for the demands of the “digital” age and modern economy. To amend the directive, the elected European Parliament and the European Council (comprised of government representatives of the 28 member states) must agree on final language and separately pass the draft legislation through their respective bodies. After extensive legislative efforts and negotiations, the European Council (currently led by the Government of Spain) and the European Parliament issued press releases announcing that they have reached a political agreement regarding the proposed updates to the directive.

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In Case You Missed It – Summer 2023

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Catch up on the latest developments of interest for product manufacturers. Here’s a quarterly compilation of the most popular blog posts on Faegre Drinker on Products.


Experts Who Cannot Articulate a Standard Cannot Opine That a Defendant Failed to Meet the Standard

By Eric M. Friedman

Burns v. Sherwin-Williams Co. is the latest in a line of cases that apply variations on a simple, common-sense theme — an expert who cannot articulate the applicable standard should not be allowed to opine that a defendant failed to meet the applicable standard. Such testimony is not a “shaky but admissible” opinion to be attacked on cross-examination; it is internally inconsistent, is inherently unreliable, and should be excluded under Rule 702.

Courts Are Citing the Rule 702 Amendments — And Litigants Should, Too

By Christin Jaye Eaton and Eric M. Friedman

Though the pending amendments to Federal Rule of Evidence 702 have not officially taken effect yet, courts already have begun to cite them, echoing the Advisory Committee’s sentiment that the amendments will not change the substance of the law as it was meant to be applied, but that many courts have not been applying it correctly. Litigants should follow suit, citing both the amendments and the Advisory Committee’s notes to alert courts that old precedent — particularly “weight, not admissibility” cases — may not be consistent with newly amended Rule 702.

Can a Treating Physician Opine on Causation? Eleventh Circuit Says It’s About Intent, Not Content

By Eric M. Friedman and Ross W. Johnson

Rule 26(a)(2)(B) requires witnesses who are “retained or specially employed to provide expert testimony in the case” — i.e., “retained” experts — to prepare and sign a report that discloses “a complete statement of all opinions the witness will express and the basis and reasons for them.” In contrast, Rule 26(a)(2)(C) imposes less arduous disclosure requirements on non-retained experts and calls on the party, not the expert, to make those disclosures. As the Eleventh Circuit recently noted in Cedant v. United States, “an expert’s status as a retained witness depends on the original purpose of his retention.” As was the case before Cedant, litigants would be wise to support critical elements of their claims and defenses with testimony from a retained expert and not assume a court will allow a non-retained expert to supply what is needed.

Experts Who Cannot Articulate a Standard Cannot Opine that a Defendant Failed to Meet the Standard

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If you don’t know where a line is, you can’t say whether someone has crossed it.  That principle applies in spades to expert witnesses, particularly when their role in the case calls on them to help the jury understand where the lines are drawn in their field.  Thus, for example, a toxicology expert who cannot say how much chemical exposure is required to produce a toxic effect cannot opine that the plaintiff’s exposure was sufficient to cause that effect.  Likewise, an expert who criticizes a product’s warnings but cannot articulate an adequate warning does not pass muster under Federal Rule of Evidence 702.  See, e.g., Bourelle v. Crown Equip. Corp., 220 F.3d 532, 538-39 (7th Cir. 2000).

The Seventh Circuit recently gave yet another illustration of this principle at work.  In Burns v. Sherwin-Williams Co., — F.4th —, 2023 WL 5210857 (7th Cir. 2023), a plaintiff truck driver was injured while making a delivery at defendant’s store using a “walkie” (i.e., an electric forklift that the operator walks behind) owned by defendant.  Plaintiff was backing the walkie down a ramp and toward a dumpster with pallets laying on the ground nearby.  Unfortunately, he underestimated the walkie’s stopping distance.  He tried “plugging” – i.e., pushing the thumb switch in the opposite direction to slow and then reverse the walkie – and then engaged the emergency brake, but it was too late.  He trapped his foot against the pallets, then fell over and broke his ankle.

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Indiana Court of Appeals Holds Product Misuse Unforeseeable in Light of Product Warnings, Reverses Denial of Summary Judgment

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Key Takeaway:  In Superior Oil Company, Inc. v. Labno-Fritchley, 207 N.E.3d 456 (Ind. Ct. App. 2023), the Indiana Court of Appeals reversed a trial court’s denial of summary judgment in a product liability case.  The court held that summary judgment should have been granted because the defendant’s designated evidence related to the product’s warning label established the affirmative defenses of misuse and incurred risk as a matter of law.  Notably, the opinion illustrates how failure to heed the warnings that accompany a product can amount to unforeseeable product misuse.

Background:  Plaintiff’s decedent attempted to remove the top of an empty 55-gallon metal drum with a cutting torch when it exploded, resulting in his death.  The top of the drum – at which the decedent had to have been looking as he cut – bore an 8” x 12” warning label that, among other things, warned of the dangers of an empty metal drum and advised “[d]o not flame cut, braze, or weld empty container.”  Although not emphasized by the Labno-Fritchley court, a picture of the label in the court’s opinion suggests that this language comprised only a very small portion of the label and was not in boldfaced or underlined font.

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Dismissal of a Broken Chair Claim Shows That Expert Testimony May Be Essential Even for a “Simple” Product

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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.

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