Strict Liability

Subscribe to Strict Liability
Photo of Bexis

The other day we posted about Von Downum v. Synthes, 2012 WL 5463900 (N.D. Okla. Nov. 8, 2012), primarily concerning its fraudulent joinder holding – in accord with the “overwhelming weight of authority” in other states – that a hospital cannot be strictly liable for claimed defects in drugs and medical devices that are used in medical procedures within its walls.  Id. at *5.  (Note:  the defense still lost, but on other grounds).
“Overwhelming” authority, at least when it’s in favor of a pro-defense proposition, is something that we like addressing, so as we hinted in our previous post, we’re looking more deeply into the issue of hospital strict liability.  While we almost always represent manufacturers, not hospitals, the notion that they could be strictly liable as “distributors” or “intermediate sellers” of our clients’ products is not a theory that we ever want to see the light of day.  The answer’s simple – such liability would inevitably result in hospitals turning around and pointing the finger at our clients.  We don’t like seeing defendants pointing fingers at each other.  Almost always, the only beneficiary from that is the plaintiff.  Not surprisingly, that’s often the precise reason why smart plaintiffs’ lawyers (don’t kid yourself, most of them are) press such theories.
The first thing we normally do in such situations is take a look at the Restatement (Third) of Torts, Products Liability.  We find the Restatement’s position in §20 (“Definition of ‘One Who Sells or Otherwise Distributes’”):

[I]n a strong majority of jurisdictions, hospitals are held not to be sellers of products they supply in conjunction with the provision of medical care, regardless of the circumstances.

Restatement (Third) of Torts, Products Liability § 20, comment d (1998).  That’s because, in most instances courts have decided that hospitals predominantly provide services, and thus do not qualify as “sellers” subject to strict product liability.
That brings us to the heart of the matter – what are that “strong majority of jurisdictions”?
So we go to the cases.
…
Continue Reading Hospital Strict Liability – A 50-State Survey

Photo of Michelle Yeary
            It’s a beautiful day in the Philadelphia area.  The humidity is down, the sun is out, the breeze is delightful.  If we were morning radio jocks, we’d be telling you to drop your briefcases and laptops and pick up your Frisbees, suntan lotion and beach chairs and head for the nearest park, lake or

…

Photo of Bexis

When we saw the first one we thought, that’s odd, but it’s mostly a malpractice claim pretty far from our sweet spot.  When we saw the second one, we thought, maybe we should blog about this now….  But the result was mostly unfavorable, and other, more significant things were happening.  But now that we’ve seen…

Photo of Bexis

The Pennsylvania Supreme Court yesterday decided Beard v. Johnson & Johnson, Inc., No. 35 WAP 2010, slip op. (Pa. March 22, 2012), a decision that is good, bad, and ugly at the same time.  We say “ugly” because the entire decision – a discussion of strict “malfunction theory” liability in the context of a…

Photo of Bexis

We’ve discussed the so-called “Berrier question” – whether the Third Circuit’s prediction that Pennsylvania law would switch to the Third Restatement from the old Azzarello form of super-strict liability should continue to apply – before.  Our position is that stare decisis required application of Berrier, until the Pennsylvania Supreme Court said otherwise, and…

Photo of Bexis

We’re talking about the Restatement (Third) of Torts, Products Liability §2, to be precise.  Being in Pennsylvania, for quite some time we’ve had more than a passing interest in this section  of the Third Restatement and its essentially negligence (“reasonableness”)-based theory of product liability.   For decades, Pennsylvania followed a “ne’er the twain shall meet” rule that strictly separated strict liability from “negligence concepts.”  That approach was exemplified by Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978).  But in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), three justices of the Pennsylvania Supreme Court opined that a quarter century had proven wanting the “strict liability” of the Azzarello sort, and that Pennsylvania law should move to the negligence-based standard of §2. 841 A.2d at 1015-16.  Full disclosure – Bexis filed a brief for PLAC in Phillips on the Restatement Third issue.
While three justices aren’t a majority of Pennsylvania’s seven-member Supreme Court, in Phillips they outnumbered the court’s Azzarello supporters 3-2 (there was a vacancy and an obscure concurrence in the result).  In almost seven intervening years, the court has failed to address the issue squarely, although not for want of trying.  The court thought it was going to decide the issue in Straub v. Cherne Industries, 880 A.2d 561 (Pa. 2005), but instead found there had been a waiver.  The court tried again in Bugosh v. I.U. North America, Inc., 971 A.2d 1228 (Pa. 2009), but dismissed the appeal as improvidently granted after it turned out that the defendant was an intermediate seller, not a true manufacturer (that makes a difference in the Third Restatement, but it’s not important here).
Finally, the Third Circuit got fed up with the issue remaining undecided, and after trying unsuccessfully to get the Pennsylvania Supreme Court to accept a certified question, took the metaphorical bull by the horns and predicted that the court would eventually adopt the Third Restatement in Berrier v. Simplicity Manufacturing, 563 F.3d 38, 57 (3d Cir. 2009).  As we discussed in an earlier post, that’s led to still more squabbling among the federal district courts.
Full disclosure – Bexis filed amicus briefs for PLAC in all of those other cases on the Third Restatement issue.
So the Third Restatement question has vexed Pennsylvania product liability law for quite a few years.  Well, not too long ago we (well, Bexis, obviously) was expressing his frustration with this indeterminate state of affairs with regular blog reader whom we ‘re not sure wants to be publicly identified, so we won’t, and said reader mentioned that his/her home state of Wisconsin was in somewhat of the same boat.
…
Continue Reading What’s Up With The Third Restatement?

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn More About This Book