Pennsylvania

 

 

Statutes of Limitations (PENNSYLVANIA)

 

Personal Injury - 2 yrs. [42 Pa.C.S.A. § 5524]

Wrongful Death - 2 yrs. [42 Pa.C.S.A. § 5524]

Property Damage - 2 yrs. [42 Pa.C.S.A. § 5524]

Contracts (Written and Oral) - 4 yrs.[42 Pa.C.S.A. § 5525]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [13 Pa.C.S.A. § 2725]

 

Under PA discovery rule, every plaintiff has duty to exercise reasonable diligence in ascertaining existence of injury and its cause; whether plaintiff has exercised reasonable diligence in ascertaining existence of injury and its cause is ordinarily jury question under Pennsylvania’s discovery rule [Bohus v. Beloff, 950 F.2d 919 (3rd Cir. 1991)]

 

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Statute of Repose (Products) (PENNSYLVANIA)

 

None.

 

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Admissibility of Expert Testimony (PENNSYLVANIA)

 

Frye test.  Pennsylvania Supreme Court concluded that the Frye’s “general acceptance” test is “a proven and workable rule, which when faithfully followed, fairly serves its purpose of assisting the courts in determining when scientific evidence is reliable and should be admitted” [Grady v. Frito-Lay, Inc., 576 Pa. 546 (Pa. 2003)].

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Causes of Action (PENNSYLVANIA)

 

Strict Liability – Pennsylvania follows Rest. (2nd) of Torts, 402A [Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014)].  One who sells a product in a defective condition unreasonably dangerous to the user (or his property) is subject to liability for physical harm caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user without substantial change in the condition in which it is sold.  NOTE: Pennsylvania Supreme Court stated that is wants the law to develop “incrementally, within the confines of the circumstances of cases as they come before the Court” [Id.].  

 

Negligence – A separate cause of action can be brought in conjunction with a products liability claim [Knipe v. Smithkline Beecham, 583 F. Supp. 2d 602 (E.D. Pa. 2008)].

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Breach of Warranty – Pennsylvania has adopted the standard UCC express warranty [13 Pa.C.S. § 2313]; implied warranty of merchantability [13 Pa.C.S. § 2314]; implied warranty of fitness for particular purpose [13 Pa.C.S. § 2315].  The warranty of a seller (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [13 Pa.C.S. § 2318].  Pennsylvania allows a claim of breach of implied warranty to be brought in conjunction with a products liability claim [Knipe v. Smithkline Beecham, 583 F. Supp. 2d 602 (E.D. Pa. 2008)].  Strict liability claims and implied breach of warranty claims are not coterminous [Phillips v. Cricket Lighters, 883 A.2d 439 (Pa. 2005)].

 

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Definition of “Defect” (PENNSYLVANIA)

 

The concept of defective condition is a legal term of art, which denotes neither its colloquial import nor a scientifically immutable fact.  A product is in a defective condition if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions [Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014)].

 

Pennsylvania applies a test balancing risks and utilities or, stated in economic terms, a cost-benefit analysis. The test offers a standard which states that a product is in a defective condition if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The risk-utility test offers courts an opportunity to analyze whether a manufacturer’s conduct in manufacturing or designing a product was reasonable, which obviously reflects the negligence roots of strict liability [Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014)].

 

Also, see discussion below re: design defects.

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Liability of Sellers (PENNSYLVANIA)

 

Sellers, suppliers, retailers, distributors, lessors are strictly liable [Meadows v. Anchor Longwall & Rebuild, Inc., 2009 U.S. App. LEXIS 521 (3d Cir. Pa. 2009)].  For liability to apply, said persons must be engaged in the business of selling/distributing/leasing such products.  

 

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Defenses (PENNSYLVANIA)     

 

Comparative Negligence – Pennsylvania follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [42 Pa.C.S.A. § 7102].  Comparative negligence is not a defense in strict liability cases [Parks v. AlliedSignal, Inc., 113 F.3d 1327 (3d Cir. Pa. 1997)].

 

Assumption of Risk – Complete defense in a products liability actions alleging a design defect or failure to warn rising to the level of a design defect (Defendant must show that Plaintiff knew of the defect and voluntarily and unreasonably proceeded to use the product or encounter a known danger) [Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 (3d Cir. Pa. 1989)].

 

Product Misuse – Treated similarly to Assumption of Risk.  Misuse involves Plaintiff’s unforeseeable, outrageous, and extraordinary use of a product. To misuse a product in an “unforeseeable and outrageous” fashion is to conduct oneself in a highly reckless manner [Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012)].

 

Product Alteration/Modification – No liability if a safe product is made unsafe by subsequent changes. Where the product has reached the user with substantial change, the question becomes whether the manufacturer could have reasonably expected or foreseen such an alteration of its product [Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997)].

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (PENNSYLVANIA)

 

Negligence and strict liability theories did not apply in action between commercial enterprises where only damage was to product itself even if product defect posed risk of other damage or injury or manifested itself in sudden and calamitous occurrence [REM Coal Co., Inc. v. Clark Equipment Co., 563 A.2d 128 (Pa. Super. 1989)].  ELD precludes recovery in tort for economic losses arising from breach of contract [Valley Forge Convention & Visitors Bureau v. Visitor's Services, Inc., 28 F.Supp.2d 947 (E.D. Pa. 1998)].

 

One possible exception is claims under the Unfair Trade Practices and Consumer Protection Law.  However, courts are split on this issue [Knight v. Springfield Hyundai, 81 A.3d 940 (Pa. Super. 2013); Werwinski v. Ford Motor Co., 286 F.3d 661 (3rd Cir. 2002)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (PENNSYLVANIA)

 

One way to demonstrate a defect is by the submission of circumstantial evidence.  A product may be found defective if it functioned improperly in the absence of abnormal use and reasonable secondary causes. Plaintiffs must show: (1) that the product malfunctioned; (2) that Plaintiff used the product as intended or reasonably expected by the manufacturer; and (3) the absence of other reasonable secondary causes [Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102 (3d Cir. Pa. 1992)].

 

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Design Defects (PENNSYLVANIA)                                                                                                

 

Pennsylvania applies a test balancing risks and utilities (a cost-benefit analysis). The test offers a standard which states that a product is in a defective condition if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The risk-utility test offers courts an opportunity to analyze whether a manufacturer’s conduct in manufacturing or designing a product was reasonable, which reflects the negligence roots of strict liability [Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014)].

 

In design cases, the character of the product and the conduct of the manufacturer are largely inseparable [Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014)].

 

Evidence of the existence and specifications of an alternative design is relevant and even highly probative to prove disputed issues in a products liability case, such as technological feasibility, cost, etc.  Plaintiff’s failure to produce evidence of alternative design is not dispositive.  Offering evidence of an alternative product design may be the preferred legal strategy of the plaintiff’s bar in certain cases, or may be a strategy the defense bar would like to impose on the plaintiff’s bar in certain cases [Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014)].

 

Evidence regarding Defendant’s compliance with the standards, practices, and customs of its industry have no role in a case based entirely on strict liability [Santiago v. Johnson Machine & Press Corp., 834 F.2d 84 (3d Cir. Pa. 1987)].

 

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Failure to Warn (PENNSYLVANIA)

 

A product is defective due to a failure-to-warn where the product is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product.  A plaintiff raising a failure-to-warn claim must establish that: (1) the product was sold in a defective condition “unreasonably dangerous” to the user; and (2) the defect caused Plaintiff’s injury. To establish that the product was defective, the plaintiff must show that a warning of a particular danger was inadequate (or altogether lacking) and that this deficiency in warning made the product “unreasonably dangerous.”  For the plaintiff in a failure-to-warn claim to establish the second element, causation, the plaintiff must demonstrate that the user of the product would have avoided the risk had he been warned of it by the seller. If the plaintiff fails to establish either of these two elements, the plaintiff is barred from recovery as a matter of law [Phillips v. A-Best Prods. Co., 665 A.2d 1167 (Pa. 1995)].

 

Evidence regarding Defendant’s compliance with the standards, practices, and customs of its industry have no role in a case based entirely on strict liability [Santiago v. Johnson Machine & Press Corp., 834 F.2d 84 (3d Cir. Pa. 1987)].

 

Where a warning is given the seller may reasonably assume that it has been read and heeded [Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614 (Pa. Super. Ct. 1999)].

 

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Independent Cause of Action for Evidence Spoliation (PENNSYLVANIA)

 

Pennsylvania has not recognized a cause of action for negligent spoliation of evidence [Pyeritz v. Com, 32 A.3d 687 (Pa. 2011)].