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Another Victory for the Defense when Suit was Filed Against "Alternative" Defendants

We here at Abnormal Use recently became aware of another successful motion for summary judgement for the defense in a products liability case where the Plaintiffs pled defendants “in the alternative.” See our prior post Filing Suit Against “Alternative” Product Manufacturers is Not Enough on Summary Judgment. This decision was from the state court in Crawford County, Kansas and involved three separate actions involving the same facts. Cabrello v. All Star Fireworks, Inc., et al., No. 2007-CV-164; Robinson v. All Star Fireworks, Inc., No. 2007-CV-165; and Roberts v. All Star Fireworks, Inc., et. al., No. 2007-CV-159.

On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.

Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.

This opinion noted that 11 states had adopted the Restatement’s alternative liability theory. As in this case, even if a state has adopted the theory of alternative liability, plaintiff still might not survive a motion for summary judgment if he cannot identify what product caused the harm.

Bleeding Kansas? Not Any More!

No, today’s post is not a reference to Butler’s dismantling of my bracket when they defeated Kansas State to make this year’s Final Four. Furthermore, this post will not revisit the Rather, today we will examine the recent decision handed down by United States District Court for the District of Kansas, Stephenson v. Honeywell Int’l, Inc., Nos. 07-2494-JWL, 07-2498-JWL, 07-2499-JWL, 07-2501-JWL, 2010 WL 1284469 (D. Kan. April 2, 2010).

The case arises out of a plane crash that occurred shortly after takeoff on January 21, 2005. Id. at *1. The crash resulted in the deaths of the pilot and all four passengers. Id. The Plaintiffs in this consolidated action were the heirs of the four deceased passengers. Id. The plane’s engines were manufactured by Honeywell’s predecessor-in-interest in 1979. Honeywell repaired the plane’s left engine in 2003 and subsequently declared that the engine was airworthy. Id. The Plaintiffs brought suit against Honeywell for wrongful death on three theories: (1) negligent repair of the left engine; (2) strict product liability; and (3) breach of implied warranty. Id.

The majority of the opinion dealt with each parties’ respective motions to exclude expert testimony. However, the most intriguing portion of the opinion was the court’s analysis of Honeywell’s Motion for Summary Judgment on the Plaintiffs’ strict liability and implied warranty claims. Honeywell argued that since it had only repaired the engine in 2003, Kansas law would not support a claim for strict product liability or breach of an implied warranty when there was not an accompanying sale of the product. Id. at *8.

The court began by recognizing the fact that the Plaintiffs had conceded that their claims for strict liability and breach of warranty were not based on an alleged defect in the engine when it was originally manufactured and sold in 1979. Id. The court then provided a brief summary of Kansas law with respect to strict liability and implied warranty claims. Specifically, the court stated that Kansas, with respect to strict liability claims, had adopted section 402A of the Second Restatement of Torts. Id. at *9. As such, liability attaches to one who sells a defective product. The court also reiterated that Kansas courts have required a plaintiff to show that the good’s defect was present when it left the manufacturer’s control and that an implied warranty arises out of a contract for the sale of goods. Id.

In response, the Plaintiffs argued that Honeywell’s repair of the left engine in 2003 was of such magnitude to have constituted a remanufacturing of the engine. Id. Nevertheless, the court stressed the fact that there was no evidence that the repair in 2003 constituted a sale: “[t]here is no evidence, however, that the title to the engine did not remain with the owner during repair or that the engine was re-sold by the defendant at that time.” Id. Furthermore, the court relied on Kansas law for the proposition that the term “manufacturer” includes one that remanufactures a product before its sale to a consumer. Id. Finally, the court held that under Kansas law, which is now in line with the majority of jurisdictions, a claim for strict liability or breach of an implied warranty will not extend to repair situations where there is not a sale of the product. Id.

Thus, in light of this opinion, it appears that the bleeding will now stop with regards to strict liability and breach of implied warranty claims arising out of a repair of a product that has already been sold.

Third Restatement Comes In First in Pennsylvania

Over the course of the past year, I have become quite accustomed to the federal government telling me that it knows what is best for me, regardless of what actually may be best for me. Depending on which side of the aisle you stand, you may revel in the audacity of hope, or just simply marvel at the audacity of your political opponents. But we need not sink into the ether of partisanship; not this day – not when there is jurisprudence to be discussed. As will be seen in the coming months, in our land of multiple sovereigns, the judiciary too walks a delicate line among competing interests. As an example of that trend, the Eastern District of Pennsylvania recently authored an opinion illustrating the unique nature of our system.

In Hoffman v. Paper Converting Machine Co. , No. 08-3012, 2010 WL 845984 (E.D. Pa. March 3, 2010), the Plaintiff injured himself when using a printing press, amputating fingers on his right hand. He sued in federal court. The defendants moved for summary judgment. The initial issue in the decision relates to the proper substantive law for decision. Even though a federal court sitting in diversity applies substantive state law, the federal court may still be forced to speculate what a state court might do when state law is nebulous on the issue at hand. The district court, per the case discussed below, ruled that the Third Restatement was the standard of decision, and it decided various issues raised in the summary judgment motion.

In , 563 F.3d 38 (3d Cir. 2009) [PDF], the Third Circuit was confronted with the issue of whether Pennsylvania courts would adopt the principles of the Third Restatement of Torts. The Third Circuit had some pretty strong indications (a pending case before the Pennsylvania Supreme Court) that the Pennsylvania Supreme Court was going to move to the liability scheme found in the Third Restatement, so the Third Circuit made that prediction. It turned out that the Pennsylvania Supreme Court dismissed the pending appeal as improvidently granted, and, therefore, Pennsylvania, for the time being, still adheres to the Second Restatement.

In Hoffman, the Plaintiff preferred the Second Restatement, while Defendants sought the application of the Third. Deciding between the Second and Third Restatement is a big decision, since each presents a different definition of a product defect, and in a products liability action, the definition of defect is likely to come up at some point in the proceedings. But there really was no decision to be made:

[A] district court is bound by Third Circuit precedent on state law issues unless a subsequent[] decision by the highest state court diverges from Third Circuit precedent.

Hoffman at *3. The district court ruled that the Third Restatement was the standard of decision, and it decided the various issues related to the summary judgment motion, granting it in part and denying it in part.

Defendants, pay attention. You can now do some forum shopping of your own, deciding whether to stay in state court, or remove to federal court, depending on which liability scheme is favorable to you. If you decide to remove, don’t forget about Iqbal and Twombley. As much as I would love to pontificate a potential law school exam question on this, I think I’ll just make the point that, in the short term, plaintiffs in Pennsylvania will have to pay attention to their products cases (including potential CAFA jurisdiction) to ensure that they get to apply Pennsylvania substantive law, at least in the short term, or in the alternative, prepare their complaints to survive a motion to dismiss under either standard. For the time being, in federal court, Pennsylvania state law is not really Pennsylvania state law.

Are the Owners and Operators of a Parking Lot in the Business of Selling a Product Under Section 402A?

The Eastern District of Pennsylvania in , No. 09-5213, 2010 WL 114879 (E.D. Pa. Jan. 13, 2010) [PDF] was recently asked to decide this question and held that owners and operators of property used as a parking lot were not sellers under Section 402A of the Second Restatement of Torts.

Plaintiff Theresa Anastasio exited an Acme supermarket on the sidewalk while operating a battery-powered scooter. The sidewalk and parking area were on the same level and there were “no marked crossings, crosswalks, skywalks, tunnels or any other sort of pathway, markings or stripings on the premises to mark off where a pedestrian . . . could go to be sure they were safe from motor traffic.” Id. at *1. As Anastasio was proceeding into the parking area, Defendant Harvey Kahn, Jr. struck her with his vehicle. As a result of this accident, Anastasio filed suit against Kahn, the supermarket, and the owners and operators of the parking lot asserting claims under both the Americans with Disabilities Act and state law strict liability.

The supermarket and the owners and operators of the parking lot moved to dismiss the strict liability claims, asserting that (1) the parking lot is not a “product” and (2) they are not “sellers” under Section 402A. The Court agreed and dismissed those claims. In so doing, the Court stated that this specific question had not been addressed by any Pennsylvania state court or the U.S. Court of Appeals for the Third Circuit. Therefore, the Court looked to interpretations of the word “seller” by Pennsylvania courts and found that, while interpreted broadly, it always involved the “transfer of possession of the subject product.” For instance, the Court cited to two decisions, one finding that United Airlines was not a seller because it was not in the business of transferring possession of an aircraft, and another finding that an amusement park was not a seller because it did not transfer control or possession of the park ride at issue.

Relying on this precedent and decisions from other jurisdictions, the Court found that since there was no transfer of a parking space, the supermarket and the owners and operators of the parking lot were not “sellers” and were not subject to strict liability under Section 402A. The Court also noted that this decision was in line with Pennsylvania law that strict liability principles are generally inapplicable to real property. Since the Court found that defendants were not “sellers” under Section 402A, it did not have to address defendants’ second argument that the parking lot was not a “product.”

This question had not previously been addressed in the Pennsylvania courts; it’s likely that it has not been addressed in many jurisdictions. Owners and operators of parking lots, or similar real property, that are faced with a strict liability claim should be aware of this argument and the precedent holding these persons and entities are not “sellers.”

Medical Device: Summary Judgment in Favor of Manufacturer for Lack of Expert Testimony

A Connecticut district court finds that the mere fact a medical device broke is insufficient to withstand summary judgment in a products liability action. On December 17, 2009, the United States District Court for the District of Connecticut in Koger v. Synthes North America, Inc., No. 3:07-CV-01158, 2009 WL 5110780 (D. Conn. Dec. 17, 2009), affirmed the rule that when the alleged defective product is outside of the ordinary consumer’s common knowledge, expert testimony establishing defective condition and causation is required.

Koger suffered a posterior pelvic fracture in a motorcycle accident. The fracture was repaired using “two Synthes fully-threaded cannulated screws.” Approximately two years later, an x-ray of Koger’s pelvic region showed that the two screws had broken. As a result, Koger filed suit against Synthes North America, Inc., the manufacturer of the screws, pursuant to the Connecticut Products Liability Act.

Synthes moved for summary judgment arguing that Koger lacked the necessary expert testimony to prove her claim. The district court agreed with Synthes. Connecticut courts apply the Restatement (Second) of Torts consumer expectation test for strict liability, but use a “modified consumer expectation test” for products not within the ordinary consumer’s common knowledge. The Koger Court found that the Synthes screws were outside the ordinary consumer’s common knowledge and subject to the “modified consumer expectation test.” Therefore, proof of the product’s defective condition and the causal link required expert testimony.

Koger submitted the opinion of a medical doctor that corrosion of the screws “could be the cause of the breakage.” However, Synthes submitted an expert opinion that provided that the screws broke due to nonunion of her pelvic area and not because they were defective. The Court found Koger’s evidence insufficient as it did not establish that it was “more probable than not that a defect caused the injury.”

In a final attempt to survive Synthes’ motion for summary judgment, Koger argued the “malfunction doctrine,” which provides that a defect can be inferred by circumstantial evidence. The Court rejected her argument stating that this case required complex medical and technical expert testimony to determine whether the product was defective and that Koger failed to provide such expert testimony.

This case highlights the rule that a broken product alone, absent any expert testimony as to defect and causation, is not enough to win a products liability action when the product is outside the knowledge of the common consumer. The Drug and Medical Device Blog an extensive review of precedent around the country reaching similar conclusions as the Koger Court that a broken device is not enough.