Photo of Michelle Yeary
            OK, we’ll admit it – we are caught up in the buzz about the new Muppet Movie and are glad we still have kids young enough to use as an excuse to go see it (really, we’d go see it anyway, but nice to have the cover story).  Word on the street is this isn’t a re-boot – Hollywood’s latest term for going back to the well when they can’t come up with an original idea – but rather a return to the 1970s Muppets we all remember so fondly.  One of the secrets to the Muppets’ success – a little something for everyone.  For the kids, the characters are bright and colorful; the songs upbeat and peppy; and for a puppet show, much of the humor is visual and slapstick.   For the adults, we await the appearance of the guest star cameos (Steve Martin, Mel Brooks, Madeline Kahn for the original movie; Jason Segel, Zach Galifinakis and Sarah Silverman for 2011) and the one-liners.  Who can forget such classics as:
Bernie: You, you with the banjo, can you help me? I seem to have lost my sense of direction!
Kermit: Have you tried Hare Krishna?
What about:
Kermit: That’s pretty dangerous building a road in the middle of the street. I mean, if frogs couldn’t hop, I’d be gone with the Schwinn.
We could go on, but we’ll just “hop” right to it (Wacka, Wacka!). 
            In our search for new and exciting cases to bring you this week, we tripped over a few classics ourselves.  So, while not really new or terribly exciting – they do add to our stories.  The first a tale of continued success in extending Pennsylvania prescription drug law to medical device cases and the second a re-affirmation of the need for expert testimony to prove a design defect.  Not as iconic as a bear and a frog on a cross-country road trip in a Studebaker (“Bear left; Right Frog”), but worth citing just the same.
            In Horsmon v. Zimmer Holdings, Inc., 2011 U.S. Dist LEXIS 130415 (W.D. Pa. Nov. 10, 2011), the court dismissed plaintiff’s claims for strict liability, breach of implied warranties and breach of express warranty based on Pennsylvania law.  The claims involved alleged defects in components of a hip implant.  The court quickly rejected plaintiffs’ strict liability and breach of implied warranty claims as not recognized by Pennsylvania.  A few weeks ago, the Eastern District of Pennsylvania did the same thing.  We told you then it wouldn’t be the last time.   Like in that Eastern District case, the plaintiff in Horsmon also failed to allege “any particular affirmation of fact or promise” to show the existence of an express warranty.  Horsmon, 2011 U.S. Dist LEXIS 130415, *11.  No express statement equals no express warranty.  Claim dismissed.  As an aside, the court noted that while the parties disagreed about whether reliance was required for a breach of express warranty claim, the court did not need to reach that issue.  Id. at *13 n.4.  You know our position.
            In a second case that caught our eye, Niehaus v. United Seating & Mobility, Inc., 2011 U.S. Dist. LEXIS 127228 (S.D. Ill. Nov. 3, 2011), the plaintiff’s claims were dismissed on summary judgment for failure to offer expert testimony in support of his design defect claim.  The facts are a bit different than our normal fare.  Plaintiff is disabled and requires use of a motorized wheelchair.  He hired defendant to repair his wheelchair and the defendant gave him a loaner.  Plaintiff was injured when he fell out of the borrowed wheelchair which he claimed had a defective joystick and seatbelt.  Niehaus, 2011 U.S. Dist. LEXIS 127228, *1. 
The court acknowledged both that expert testimony is typically required to maintain a design defect claim and that “the determination of whether expert testimony is necessary . . . is judged according to the facts and issues involved in a case.”  Id. at *6.   The court went on to compare the Niehaus wheelchair scenario to a case involving a crutch that collapsed (we’ll forego the rubber crutch gag, but are reminded of when Kermit first saw the “Doc Hopper’s French Fried Frog Legs” billboard and said:  “All I can see are millions of frogs with tiny crutches.”).  Where the product in question was a “simple crutch” and the question for the jury was “whether the crutch performed properly when it collapsed” – the matter was one within the jury’s common understanding and experience and no expert testimony was required.  Id. at *9.  In the case of a wheelchair, with its numerous components and motorized parts, specialized knowledge is required.  So, the court dismissed the case because “it would be pure speculation if the jury were to be allowed to assess the design and manufacture of the wheelchair in the absence of expert testimony.”  Id. at *10. 
Two simple, straightforward cases.  Two good decisions.  Sometimes re-visiting the classics is just what we need.   Like “Drinks are on the House!”  It works every time.