Beginning – at least − with the awful decision in Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448, 465 (W.D. Pa. 2019) (discussed here), plaintiffs seeking to overturn the longstanding Pennsylvania (since the 1940s) prohibition against strict liability in prescription medical product liability litigation have been systematically attacking the precedential weight of Creazzo v. Medtronic, Inc., 903 A.2d 24 (Pa. Super. 2006) (applying the Pennsylvania prohibition to medical devices) under the false pretense that the plaintiffs in that case were pro se during the appeal.

Not only is that completely irrelevant, since the Superior Court itself made the decision to publish Creazzo as precedential, but it is simply false as a factual matter. The plaintiffs in the Creazzo case were not “pro se.”  That assertion is false, even though plaintiffs have succeeded in misleading several federal district courts – including the court in Schrecengost – on this point.  While we believe that the other side knows or should know that Creazzo was not a pro se appeal, we’re publishing this post to remove all doubt.  

True, if you turn to Creazzo in the Atlantic Reporter you will find, under “attorneys and law firms,” the following:  “Ronnie L. Creazzo, appellants, Pro Se.”  Creazzo, 903 A.2d at 26.  However, that is a publisher’s editorial enhancement and not part of the official Superior Court opinion. The actual Creazzo opinion itself never uses the term “pro se,” nor did the Creazzo slip opinion from the court include any list of counsel. The pro se reference was a mistake by the publishing companies, not the Superior Court. And it is an obvious mistake − since the actual plaintiffs identified in the case caption itself are “Joseph Creazzo and Darlene Creazzo,” not “Ronnie.”  Ronnie Creazzo, Esq. is a Pennsylvania lawyer.  Here is a link to his Martindale-Hubbell lawyer listing.  The inclusion of “pro se” was a transparent error, undoubtedly prompted by the Creazzo plaintiffs/appellants and their (presumably related) counsel sharing the same rather distinctive last name.

Want more proof?  You can access the Creazzo docket sheet (1843 EDA 2005) yourself through the online “case search” function < https://ujsportal.pacourts.us/CaseSearch > of the “Unified Judicial System of Pennsylvania Web Portal” maintained by Administrative Office of the Pennsylvania Courts.  To save readers the trouble, we have downloaded the current Creazzo docket sheet here, but anyone is welcome to confirm that what we say is accurate.  Here is a snip of the relevant portion of the docket sheet:

Note that the Creazzo docket sheet states “Pro Se:     No.”  Note further that the address information for attorney Creazzo accords with what is in Martindale Hubbell (and on similar sites).

The assertions that the other side has repeatedly made about the Creazzo plaintiffs supposedly being “pro se” are not true – period, end of story.  We know the other side reads the blog – so after today we submit any such assertions made in future cases would not merely be false but would presumably become frauds on whatever court to which they might be made.

We ran a search of “Creazzo” and “pro se” in the same paragraph.  It appears that no fewer than four federal court judges have in fact been misled by these misrepresentations – starting with the Honorable Kim Gibson in Schrecengost itself.  Schrecengost stated:

[T]he Pennsylvania Supreme Court would likely decline to adopt Creazzo’s rationale. . . .  There is no indication that the parties presented a full and balanced record of policy considerations to the court in Creazzo.  In fact, the opposite was true. The court acknowledged that the appellants, who were pro se, offered no analysis or authority for a different interpretation of Hahn.

425 F. Supp.3d at 465 (emphasis added).  As discussed above, “the court” in Creazzo “acknowledged” no such thing; it was a publisher’s error.

While Schrecengost was the first court to be bamboozled by an incorrect assertion that the Creazzo plaintiffs were “pro se,” it was not the last.  See also Spear v. Atrium Medical Corp., 621 F. Supp.3d 553, 556 (E.D. Pa. 2022) (“Courts that have not barred strict liability have noted that Creazzo was argued by pro se plaintiffs and therefore unpersuasive”) (Hon. Gerald McHugh); Gross v. Coloplast Corp., 434 F. Supp.3d 245, 250 (E.D. Pa. 2020) (“[t]he pro se plaintiffs in Creazzo do not appear to have litigated the point thoroughly”) (Hon. Michael Baylson); Moultrie v. Coloplast Corp., 2020 WL 1249354, at *9 (Mag. W.D. Pa. March 16, 2020) (describing Schrecengost as “noting that the pro se plaintiffs in Creazzo did not offer a different interpretation”) (Hon. Patricia Dodge).

Thus, plaintiffs in Pennsylvania medical device product liability litigation have successfully misrepresented the purported “pro se” status of Creazzo to at least four Pennsylvania federal judges (three Article III and one Magistrate).  We have no idea how many other times these fallacies have been peddled to other Pennsylvania judges where they did not appear in actual opinions.  We’ve located several.  Most glaringly, in Ebert v. Bard, where (as we discussed here) the Pennsylvania Supreme Court had accepted an appeal on the Creazzo issue, an amicus brief misrepresented Creazzo as “pro se” to the Pennsylvania Supreme Court three times in two paragraphs:

• “The [Creazzo] plaintiff filed a pro se appeal.”
• “the pro se plaintiff had not significantly analyzed comment k in its brief”
• “the pro se plaintiff had not cited authority that comment k did not apply to medical devices”

Brief of Amici Curiae Ella Ebaugh, Suzanne Emmet, the Pennsylvania Association For Justice, and the American Association For Justice, Ebert v. C.R. Bard, 26 EAP 2021 (Pa. filed Sept. 28, 2021) – all quoted material appearing on page 14.

An identical – and identically untrue – discussion of Creazzo as “pro se” appeared in an amicus brief filed by some of the same parties in the Third Circuit in the same case (Ebert came to the Pennsylvania Supreme Court on a certified question).  See Brief of Amici Curiae Ella Ebaugh and Suzanne Emmet, Ebert v. C.R. Bard, 2020 WL 6158889, at *10-11 (3d Cir. filed Oct. 19, 2020).  These same plaintiffs – Ebaugh and Emmet – also made the same mistaken claims that Creazzo was a “pro se” appeal in briefs that they filed with the Pennsylvania Superior Court in their own appeals of the same issue.  See Brief of Appellees Ella Cederberg Ebaugh and Marvin Ebaugh, Ebaugh v. Ethicon, Inc., 2020 Pa. Sup. Ct. Briefs Lexis 4454, at *20-21 (Pa. Super. filed Jan. 6, 2020); Brief of Appellees Suzanne and Michael Emmet, Emmet v. Ethicon Women’s Health & Urology, 2020 Pa. Sup. Ct. Briefs Lexis 2944, at *15-16 (Pa. Super. filed March 11, 2020).  A Westlaw search of federal trial court documents for “Creazzo” within the same paragraph as “pro se” generated another fourteen documents containing the same untrue claims.

These misrepresentations should stop, and if plaintiffs do not voluntarily cease their false statements , defense counsel should call them on it.  See 204 Pa. Code §3.3 (“Candor Toward the Tribunal − (a) A lawyer shall not knowingly: (1) make a false statement of . . . law to a tribunal or fail to correct a false statement of . . . law previously made”).  If they didn’t know before, they know now.