Subject: Pennsylvania

Amazon Notches Another Win on Personal Injury Liability Relating to Third-Party Seller Products

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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.

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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

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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.

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Pennsylvania Medical Device Strict Liability Claims: Relentless Repetition, Clamoring for Review

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A Pennsylvania federal court has again asked that the state’s Supreme Court clarify whether, and to what extent, medical device manufacturers are immune from strict liability claims by virtue of the “unavoidably unsafe products” exemption recognized in Restatement (Second) of Torts Sec. 402A cmt. k (“Comment k”)—only this time with a direct certification.

On Thursday, the Third Circuit Court of Appeals certified that question to the Pennsylvania Supreme Court, along with a question about which negligent design defect theory—or theories—a Pennsylvania plaintiff may assert against a medical device manufacturer.  Pet. for Certification of Questions of State Law, ECF No. 50, Ebert v. C.R. Bard, Inc., et al., No. 20-2139 (3d Cir. June 24, 2021) (“Ebert Pet.”).   Last spring, Judge Pappert of the Eastern District of Pennsylvania dismissed Ms. Ebert’s strict liability claim, finding her IVC filter “an ‘unavoidably unsafe product’” under Hahn v. Richter, 673 A.3d 888 (Pa. 1996), and she appealed that order granting summary judgment to the Third Circuit.

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Preparing for In-Person Trials in the PCCP during COVID

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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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Witness Coaching by Whisper Leads to Sanctions for Defense Witness and Attorney

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As noted in two prior posts, one on May 15, 2020, and the other on May 29, 2020, the COVID-19 pandemic and the resulting explosion in the use of remote depositions present a number of novel issues for lawyers to consider, whether taking or defending depositions. Regardless of these “unprecedented times,” some things remain the same, including that it is improper for a witness to be coached about answers while the deposition is occurring.

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Pennsylvania Appellate Court Rejects Application of the Statute of Repose in Effect in the State Where an Injury Occurred Under Pennsylvania’s Borrowing Statute, But Leaves Open Possible Application Under Substantive Choice of Law Rules

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The Pennsylvania Superior Court, the state’s mid-level appellate court, recently held in Kornfeind v. New Werner Holding Co., 2020 PA Super 266, that Pennsylvania’s “borrowing statute” applies only to foreign statutes of limitation and therefore does not require application of a statute of repose enacted in the state where the plaintiff used the product and was injured. But the Court also held that statutes of repose are substantive under Pennsylvania law, and therefore the statute of repose from the state of use and injury may bar the claim in a Pennsylvania court if Pennsylvania’s choice of law rules support application of that state’s law.

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