Category Archives: Pennsylvania

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The Final Nail: Ongoing Repairs Do Not Toll the Statute of Repose


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In Venema v. Moser Builders, Inc., 2022 PA Super. 171, 2022 Pa. Super. LEXIS 414, the Superior Court of Pennsylvania (Superior Court) upheld an award of judgment on the pleadings from the Court of Common Pleas of Chester County (Trial Court). The Superior Court found that Pennsylvania’s 12-year Statute of Repose for improvements to real property (Statute of Repose) began to run upon the issuance of the certificate of occupancy following original construction of the home in 2003—not from the completion of repairs to the home that continued through 2008. Continue reading →

This entry was posted in Construction Defects, Pennsylvania, Statute of Limitations-Repose and tagged , , , .
Signing Agreement

Mind Over Matter: Court Finds Expert Opinion Based on NFPA 921 Reliable Despite Absence of Physical Testing


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In Smith v. Spectrum Brands, Inc., 2022 U.S. Dist. LEXIS 142262, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiffs’ liability expert met the requirements of Rule 702 of the Federal Rules of Evidence and could testify that a filter pump for an aquarium tank was defectively designed and caused a fire at the plaintiffs’ home. The defendant filed a motion to exclude the plaintiffs’ liability expert on grounds that the expert’s opinion did not satisfy the reliability element of Rule 702 because the expert never conducted physical testing on the filter pump. The court found that the cognitive testing employed by the expert through various methods, including visual inspections of the evidence, a review of photographs of the scene and literature from the manufacturer, and research on similar products, was sufficiently reliable to admit his opinion. Continue reading →

This entry was posted in Experts, Experts - Reliability, Experts – Daubert, NFPA 921, Pennsylvania and tagged , , .
Fire

Pennsylvania Court Finds that Two Possible Causes Can Prove a Product Malfunction Theory of Liability


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In Allstate Ins. Co. v. LG Elecs. USA, Inc., No. 19-3529, 2021 U.S. Dist. LEXIS 127014, the United States District Court for the Eastern District of Pennsylvania considered whether plaintiff’s expert engineer’s opinion that there were two possible causes of a fire—both related to alleged product defects within a refrigerator manufactured by the defendant—was sufficient to support the malfunction theory of products liability. The court found that because both potential causes imposed liability on the product manufacturer and the expert ruled out misuse of the product, as well as all external causes of the fire, it was not necessary for the engineer to identify a specific cause under the malfunction theory. The court also found that the expert’s investigation and opinions met the criteria set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and the Federal Rules of Evidence and, thus, were admissible. Continue reading →

This entry was posted in Experts, Experts – Daubert, Pennsylvania, Products Liability, Subrogation and tagged , , , , , .

Examination of the Product Does Not Stop a Pennsylvania Court From Applying the Malfunction Theory


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Pennsylvania recognizes the malfunction theory in product liability cases. This theory allows a plaintiff to circumstantially prove that a product is defective by showing evidence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction. The malfunction theory is available to plaintiffs as an alternative to proving a traditional strict product liability case in those circumstances where direct evidence of a product defect is not found. In Pa. Nat’l Mut. Cas. Ins. Co. v. Sam’s East, Inc., 727 MDA 2020, 2021 Pa. Super. Unpub. LEXIS 752, the Superior Court of Pennsylvania (Superior Court) considered whether the plaintiffs could avail themselves to the malfunction theory if the plaintiffs’ expert was able to examine the product. Continue reading →

This entry was posted in Litigation, Pennsylvania, Products Liability, Subrogation and tagged , , .
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Industry Standard and Sole Negligence Defenses Can’t Fix a Defect


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Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend. Continue reading →

This entry was posted in Comparative-Contributory Negligence, Evidence, Negligence, Pennsylvania, Products Liability and tagged , , .
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Saved By The Statute: The Economic Loss Doctrine Does Not Bar Claims Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law


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In Earl v. NVR, Inc., No. 20-2109, 2021 U.S. App. LEXIS 6451, the U.S. Court of Appeals for the Third Circuit (Third Circuit) considered whether, under Pennsylvania law, the plaintiff’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against the builder of her home were barred by the economic loss doctrine. The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 Pa. Stat. Ann. § 201-3. The Third Circuit previously addressed the impact of the economic loss doctrine on UTPCPL claims in Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In Werwinski, the court held that the plaintiff’s UTPCPL claim was barred by the economic loss doctrine. The Court of Appeals overturned its decision in Werwinski and held that the economic loss doctrine does not bar UTPCPL claims since such claims are statutory, and not based in tort. Continue reading →

This entry was posted in Construction Defects, Economic Loss Rule, Pennsylvania and tagged , , , .
House Flood

Pennsylvania Federal Court Excludes Expert Testimony That Tries To Force a Square Peg Into a Round Hole


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In Kenney v. Watts Regulator Co, No. 20-2995, 2021 U.S. Dist. LEXIS 4539 (E.D. Pa. Jan. 11, 2021), the United States District Court for the Eastern District of Pennsylvania considered whether to exclude the plaintiff’s liability expert’s testimony regarding the sufficiency of the defendant’s product maintenance instructions. The plaintiff offered the testimony in support of his failure-to-warn product defect claim. The District Court excluded the testimony because the facts of the case did not support the plaintiff’s failure-to-warn claim, which rendered the testimony irrelevant. This case establishes that expert testimony can be excluded if there is an improper fit between the testimony and the underlying claim. Continue reading →

This entry was posted in Experts, Experts – Daubert, Litigation, Pennsylvania, Products Liability and tagged , , , .
Product Fire

Eastern District of Pennsylvania Clarifies Standard for Imposing Spoliation Sanctions


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Courts are faced with the difficult task of drawing a line to determine when the failure to preserve evidence becomes culpable enough to permit a judicial remedy. In State Farm Fire & Cas. Co. v. Cohen, No. 19-1947, 2020 U.S. Dist. LEXIS 163681, the United States District Court for the Eastern District of Pennsylvania (District Court) made clear that a party is not entitled to a spoliation sanction without proof that the alleged spoliation was beyond accident or mere negligence. The District Court emphasized that when evidence goes missing or is destroyed, the party seeking a spoliation sanction must show that the alleged spoliation was intentional and that the alleged spoliator acted in “bad faith” before adverse inferences will be provided. Continue reading →

This entry was posted in Evidence, Pennsylvania, Spoliation and tagged , , .

Pennsylvania Superior Court Fires up a Case-By-Case Analysis for Landlord-Tenant, Implied Co-Insured Questions


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In Joella v. Cole, 2019 PA Super. 313, the Superior Court of Pennsylvania recently considered whether a tenant, alleged by the landlord’s property insurance carrier to have carelessly caused a fire, was an implied co-insured on the landlord’s policy. The court found that the tenant was an implied co-insured because the lease stated that the landlord would procure insurance for the building, which created a reasonable expectation that the tenant would be a co-insured under the policy. Since the tenant was an implied co-insured on the policy, the insurance carrier could not maintain a subrogation action against the tenant. This case confirms that Pennsylvania follows a case-by-case approach when determining whether a tenant was an implied co-insured on a landlord’s insurance policy. Continue reading →

This entry was posted in Anti-Subrogation Rule, Landlord-Tenant, Pennsylvania, Subrogation, Sutton Doctrine and tagged , , .
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Superior Court Addresses Whether the Plaintiff Is the “Master of the Claim” in Post-Tincher Decision


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Since the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), parties proceeding in product liability cases in Pennsylvania often disagree about jury instructions. In Davis v. Volkswagen Grp. of Am., No. 1405 EDA 2018, 2019 Pa. Super. Unpub. LEXIS 2763, the Superior Court of Pennsylvania, in an unpublished opinion,[1] recently addressed whether the trial court gave proper jury instructions in a products liability case against Volkswagen entities, including Volkswagen Aktiengeselleschaft (Volkswagen). The court held that, despite a statement in Tincher that the plaintiff is the “master of the claim,” the trial court properly instructed the jury on both the consumer expectation test and the risk-utility test for establishing that the product at issue, a Volkswagen Passat, was in a defective condition. Continue reading →

This entry was posted in Pennsylvania, Products Liability and tagged , , .