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Back in 2020, we encountered Gustafson v. Springfield, Inc., 2020 Pa. Super. Lexis  843 (Pa. Super. Sept. 20, 2020), a decision so bizarre that it reminded us of a Monty Python movie.  That decision “employ[ed] a rationale, at once both paleolithically conservative and pro-plaintiffly radical, that would render any federal “tort reform” statute unconstitutional.”  Gustafson involved a federal statute that preempted most tort litigation involving firearms, the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§7901, et seq., (“PLCAA”), and declared that the PLCAA violated the Tenth Amendment.

Since it did not involve prescription medical product liability litigation, the Blog did not follow Gustafson all that closely – our last mention of it was in 2021, noting that en banc reargument had been granted and the singular panel opinion had been withdrawn.  However, the decision that resulted from the reargument was a mess.  Gustafson v. Springfield, Inc., 282 A.3d 739 (Pa. Super. 2022) (en banc), produced no majority and five different opinions from the nine judges.  Moreover, the overall result, which was to reverse the trial court’s dismissal of the suit, was contrary to the majority votes of the individual judges.  How could that be?  Here’s a brief description from a Pennsylvania appellate procedure article Bexis wrote about Gustafson:

The outcome in Gustafson thus differed dramatically from the votes of the nine en banc judges on the merits of the two issues.  The outcome was 5-4 in favor of reversal, as four judges would reverse on constitutional grounds, and one judge would reverse solely on statutory grounds.  On both of the two issues, however, the position advocated by the defendants was in the majority.  Seven justices agreed that, factually, the Arms Act was applicable to the Gustafson plaintiffs’ claims.  By a slimmer margin of 5-4, a majority of the Gustafson judges agreed that the Arms Act was constitutional.

J. Beck, “What Happens When Precedent Splinters? A Look at Gustafson,” Law.com (Nov. 17, 2022).

This bizarre result had one beneficial effect, it virtually forced the Pennsylvania Supreme Court to take the inevitable appeal in order to clean up the mess.  Which it did.  See Gustafson v. Springfield, Inc., 296 A.3d 560 (Pa. 2023) (granting review).

And last month, the Pennsylvania Supreme Court did indeed clean up the mess.  See Gustafson v. Springfield, Inc., 2025 Pa. Lexis 442 (Pa. March 31, 2025).Continue Reading At Least Pennsylvania Is Not That Completely Different

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We write a lot about the learned intermediary rule. There are 50 state surveys and  summaries of helpful decisions, as well as numerous posts on state-specific decisions. We tracked the development of the rule in jurisdictions like West Virginia and Arizona, and we’ve generally been pleased to report positive developments. At the end of 2024, though, we flagged the Himes case from California as one of the ten worst decisions of the year based on its novel approach to warnings causation.  Given our criticisms of Himes, we found it both bizarre and troubling to see the case cited recently by an MDL court in Massachusetts applying Pennsylvania law. Our colleagues in the plaintiffs’ bar are clearly advocating to expand Himes into other jurisdictions, and the defense bar should be ready to counter those efforts.Continue Reading Himes Makes a Sneak Appearance on the East Coast

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Blair v. Abbvie Inc., 2025 WL. 57198 (W.D. Pa. Jan. 9, 2025), is, from the defense perspective, a favorable opinion dismissing (some with prejudice, some with leave to amend) all counts of the plaintiff’s complaint.   The opinion is a bit odd, in a semi, unintentionally-ironic sort of way, because it faults the plaintiff for

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Recently we discussed the latest opinion in the ongoing “controversy” over the application of Pennsylvania’s comment k across-the-board rule to cases involving medical devices.  Douglas v. Atrium Medical Corp., 2024 WL 4364950 (M.D. Pa. Sept. 20, 2024).  We use “controversy” advisedly, because as Douglas held, there is “no substantial ground for difference of opinion

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This is from the non-Dechert part of the Blog.

Over the years, the Blog has had many, many posts related to the issue of whether Pennsylvania recognized any form of strict liability in product liability actions against prescription medical products.  In addition to the fact that several of the principal authors of the Blog have

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Although today’s decision involves a medical product, it focuses on an online marketplace rather than a drug or device manufacturer. And by online marketplace we mean the delivery service that has become ubiquitous in almost all of our lives—Amazon.  The decision is significant because it finds Amazon, as a shipper rather than a seller, does not have an independent duty to investigate risks of the products it ships.Continue Reading Pennsylvania Federal Court Holds Online Marketplace Has No Duty to Inspect Goods

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As we discussed at length in this post, since the 1940s, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have refused to subject prescription medical products to strict liability.  That is significant because, unlike (now) every other state in the country, since 1987 Pennsylvania precedent prohibited defendants from introducing evidence of their

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We generally keep our distance from medical cannabis/marijuana.  We’re not one of those blogs.  But if legal holdings of interest to us happens to involve cannabis, we will comment.  Thus, we bring you Schmidt v. Schmidt, Kirifides & Rassias, PC, ___ A.3d ___, 2023 WL 7502499 (Pa. Commw. Nov. 14, 2023), holding that

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In 1919, J. Edgar Hoover described Communism as a “conspiracy so vast” that it was impossible for the populace to comprehend it.  The Palmer Raids and the first Red Scare soon followed.

That phrase echoed in our minds when we first read In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2023 WL 1818922 (D.N.J. Feb. 8, 2023).  The Valsartan opinion was similarly mind-boggling in its scope.  It certified not one, not two − but four class actions:  one for economic loss, one for third-party payors (“TPPs”), and two for medical monitoring (“remedy” and “independent claim”).  Id. at *3.  Compare that to the state of class action precedent in product liability litigation not too long ago when we made this statement in 2007:

As far as we know, there has not been a single contested class action in product liability, personal injury litigation that’s been affirmed anywhere in the federal system in the decade since the Supreme Court put the kibosh on such things with its Ortiz and AmChem decisions.  That’s not limited to just pharmaceuticals, that’s every kind of product that’s made.

Four in a single MDL order?  These class certifications glommed together no less than 111 consumer and TPP subclasses.  Valsartan, 2023 WL 1818922, at *24.  These class certifications combined 428 different pharmaceutical products, produced and marketed by 28 separate defendants, with claims governed by the laws of 52 separate jurisdictions.  There’s no way on earth that common issues could predominate over individual ones, or that this morass could possibly be tried to a jury.Continue Reading An Abuse of Discretion So Vast….  Our Long-Delayed Critique of the Valsartan MDL Class Action Certifications