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A long time ago, when we were wet behind the ears and still nervous about the prospect of drafting and arguing dispositive motions, we worked for a senior partner who taught us that clear writing flowed from clear thinking.  If that is true (and it is), then the opinion in McKnight v. Inc., 2024 U.S. Dist. LEXIS 86501 (E.D. Pa. May 14, 2024), must have been authored by a mind with shimmering clarity (and it was).  Judge Pratter was one of our favorite judges anywhere. We grieve at the use of “was.” We were shocked and saddened to learn that Judge Pratter passed away last Friday. Her death is an enormous loss for the Philadelphia legal community and beyond. Judge Pratter ran the University of Pennsylvania Inn of Court with uncommon grace.  She loved to see young lawyers get a chance to shine.

Judge Pratter’s writing always sparkled with lightning clarity. It also occasionally thundered with devastating humor.

Here is how the McKnight opinion begins:  

“ is a website that has oftentimes been called “The Everything Store.” See, e.g., Brad Stone, The Everything Store: Jeff Bezos and the Age of Amazon (Hachette Book Group 2013). Jamie McKnight,when he went to visit his barber Tyrese Skinner in Philadelphia, allegedly suffered injuries when Mr. Skinner applied a mole removal cream to his scalp.

Mr. McKnight alleges that Mr. Skinner bought the mole removal cream from Or if not from Amazon, then he bought it from WalMart. Or if not from Amazon, then from Target. Or if not from Amazon, then from eBay. In other words, Mr. McKnight has fashioned his complaint as its own type of everything store, where each retailer must have been the one who sold the mole removal cream. In doing so, Mr. McKnight has only marginally pled a sufficient case against Amazon, and as for the others, Mr. McKnight’s cart includes only speculation and implausibility. Thus, the Court grants Target’s, WalMart’s, and eBay’s motions to dismiss.” 

Some judges just know how to write.  (Good writing is not tied to ideology.  The two best writers on SCOTUS over the last couple of decades have been Justices Kagan and Scalia, and it is hard to think of judges more different in outlook.) 

So we have a plaintiff who claimed that he bought what sounds like an OTC drug (“mole removal cream”) from no fewer than four different and independent retailers.  That claim defies the law of TwIqbal and the law of physics.  He sued the barber and the manufacturer, along with the retailers. The case was originally filed in the Philadelphia Court of Common Pleas and then was removed to federal court.  The court denied the plaintiff’s motion to remand to state court. The plaintiff amended the complaint – more than once.  Now in front of the court was the plaintiff’s Second Amended Complaint, which included strict liability claims and “negligence and recklessness” claims against the retailer defendants.  The retailers moved to dismiss the Second Amended Complaint.

When the court held that the claims against Amazon were “marginally” plausible, the word “marginally” was doing a lot of work. To the extent the Second Amended Complaint’s naming of multiple retailers reached toward a theory of market share liability – which “Pennsylvania courts are reluctant to apply” – the plaintiff created enough uncertainty to make the claims against Amazon look rickety.  But the plaintiff did at least refer to some stray facts suggesting that the barber received delivery of the mole removal cream from Amazon (the cream was allegedly purchased on an Amazon website and was delivered on an Amazon truck), so the claim lived to see another day.  But as to the other three alleged sellers, no facts were pleaded.  All the plaintiff offered were a series of identical recitations of the elements of the cause of action, with a conclusion that each retailer “more likely than not” was a seller.  That is not close to being sufficient.  The plaintiff must identify the seller of the allegedly defective product. While alternative pleading can be fine and good, it must meet the general plausibility standard.  The plaintiff tried to preserve his claims against the non-Amazon retailers by insisting that those defendants had “not provided any verifiable proof” that they were not the sellers of the product.  That formulation (redolent of discredited market share liability) gets the burden all backwards of course.  The court raised a “judicial eyebrow” at this argument, and rejected it because it could not overcome the absence of facts in the Second Amended Complaint.   Accordingly, the court dismissed the claims against the non-Amazon retailers.  That dismissal was with prejudice because further amendment would be futile.

Then the McKnight court set about trimming away some of the claims against Amazon.  For example, the plaintiff alleged that Amazon continued to sell the cream after the plaintiff’s incident, despite allegedly being aware of the dangers posed by the cream.  But “Pennsylvania law does not recognize a duty to recall or retrofit products,” so allegations regarding post-sale conduct were stricken.  The plaintiff also included a claim that Amazon was reckless, but there is no separate cause of action for recklessness under Pennsylvania law.

Finally, the court addressed the plaintiff’s claim for punitive damages.  The only basis cited by the plaintiff for this claim was that Amazon’s webpage allegedly “deliberately hid/concealed or made less visible reviews which revealed that the [mole removal cream] causes burning and scarring….”  Once again, the court raised a judicial eyebrow at this assertion.  (Which is not to say that the court was being supercilious.) The court had “significant reservations” that the punitive damages claim could survive.  Only “extreme and brazen circumstances would support a claim for punitive damages based on the default methodology Amazon uses to sort product reviews.”  It is hard to believe that Amazon would, in an “online marketplace that sells hundreds of millions of products” [our household personally accounts for approximately half of them] bother or manage to “hide negative reviews of this one specific item,” but the plaintiff would get the chance to try.

We share the court’s skepticism as to whether the plaintiff will ultimately be able to deliver the goods.  .

We will miss Judge Pratter. We already do.