Pennsylvania Products Liability Sixth Edition

by D. Bradley Remick

Overview

Pennsylvania Products Liability provides an authoritative and comprehensive review of Pennsylvania product liability law. This area of law has undergone dramatic changes in recent years with the federal and state courts in Pennsylvania split between the application of the Second and Third Restatements. This book addresses the implications of this important issue and provides thorough analysis of the essential concepts and guidance on what the law is and where it may be headed.

Chapters include:

• History of Products Liability Law
• The Rise and Fall of The Second Restatement of Torts
• The Rise (and Demise) of Restatement (Third) of Torts
• Post-Tincher v. Omega Flex, Inc.
• The Restatements in Practice
• Strict Liability Concepts
• Breach of Warranty
• Negligence
• Manufacturing and Design Defects
• Warning Defects
• Compensatory Damages
• Punitive Damages
• Indemnity, Contribution and Apportionment
• Jurisdiction, Venue and Related Principles
• Discovery Process
• Evidence in Products Liability Litigation
• Expert Evidence and Products Liability
• Automotive Product Liability Law
• Federal Preemption
• Food, Drugs and Medical Devices
• Recalls

Product Details

ISBN-13:	9781588526038
Publisher:	ALM Media Properties, LLC
Publication date:	12/28/2021
Sold by:	Barnes & Noble
Format:	eBook
Pages:	634
File size:	932 KB

About the Author

Bradley D. Remick
 
Bradley D. Remick, a Shareholder at Marshall Dennehey Warner Coleman & Goggin, has thirty years of experience in the arena of product liability law. He concentrates his practice on the defense of complex product liability cases for small, medium and large (Fortune 500) manufacturing companies and their distributors. Mr. Remick is a supervising attorney in the firm’s Product Liability Practice Group. He is also a nationally certified firefighter and holds over 60 different certifications. Mr. Remick is uniquely experienced in the defense of cases involving electrical equipment and fires, and he serves as national counsel to a company that designs and manufactures thermal fluid heaters and boilers.
 

Table of Contents

Chapter 1: History of Product Liability Law
1-1 INTRODUCTION
1-1:1 The Doctrine of Strict Product Liability
1-1:2 The Role of the American Law Institute and the Restatements
1-2 PENNSYLVANIA JUMPS ON THE BANDWAGON
1-2:1 Pennsylvania Law Gets Muddier, The Mud Gets Screened . . . Into More Mud
1-2:2 Pennsylvania, Out of the Mud, Into the Quicksand
1-3 TINCHER—WILL PENNSYLVANIA FINALLY GET IT RIGHT – NO!
1-4 NOTABLE DIFFERENCES BETWEEN THE RESTATEMENTS (FOR WHAT IT’S WORTH IN THE POST TINCHER WORLD)

Chapter 2: The Rise and Fall of the Second Restatement of Torts
2-1 ADOPTION OF RESTATEMENT (SECOND) OF TORTS
2-2 IMPACT OF ADOPTING THE SECOND RESTATEMENT
2-2:1 The First Step Toward Deviation: Berkebile v. Brantley Helicopter Corp.
2-2:2 Two-Part Strict Liability Analysis: Azzarello v. Black Bros. Co., Inc.
2-3 AMBIGUITIES AND INCONSISTENCIES—POST BERKEBILE AND AZZARELLO FALLOUT

Chapter 3: The Rise (and Demise) of Restatement (Third) of Torts
3-1 A BRIEF OVERVIEW OF THE RESTATEMENT (THIRD) OF TORTS
3-2 THE THIRD RESTATEMENT MADE ITS WAY TO PENNSYLVANIA (AT LEAST FOR A LITTLE WHILE)
3-2:1 Justice Saylor and the Restatement (Third) of Torts
3-2:2 The Third Circuit’s (So Far) Erroneous Prediction
3-2:3 Tincher and Pennsylvania’s Ongoing Confusion
3-3 RESPONSES TO RESTATEMENT (THIRD) IN OTHER JURISDICTIONS

Chapter 4: Post-Tincher v. Omega Flex, Inc.—The (Pennsylvania Products Liability Law) Saga Continues
4-1 INTRODUCTION
4-2 THE TINCHER CASE—BACKGROUND
4-2:1 The Tincher Trial
4-2:2 Tincher—Post-Trial and Appeal
4-2:3 The Supreme Court’s Opinion
4-3 GETTING TO THE POINT
4-4 BACK TO THE FOUNDATIONS
4-4:1 The Duty
4-4:2 Breach of Duty
4-4:3 Proving “Defective Condition” in the Context of a Design-Related Claim
4-5 CONSUMER EXPECTATIONS STANDARD
4-6 RISK-UTILITY STANDARD
4-7 COMBINED TESTS
4-8 RESTATEMENT THIRD—REJECTED
4-8:1 The Burden of Proof
4-8:2 Cancelleri v. Ford Motor Co.: A Trial Court Applies Tincher
4-8:3 Current Tincher Rulings: Retroactive Application of Tincher to Properly Preserved Cases and Unreasonably Dangerous Determination
4-8:4:    Moving Forward
4-9 RISK/BENEFIT ANALYSIS VS. CONSUMER EXPECTATIONS TEST—GUIDANCE FROM “OUT OF STATE”
4-10 CONCLUSION
4-11 APPENDIX: CASES RELEVANT TO TINCHER

Chapter 5: The Restatements in Practice
5-1 RISK-UTILITY ANALYSIS UNDER THE RESTATEMENT (SECOND) OF TORTS
5-2 RISK-UTILITY ANALYSIS UNDER THE RESTATEMENT (THIRD) OF TORTS
5-3 APPORTIONING ENHANCEMENT ON DEFENDANT
5-4 RECENT DEVELOPMENTS IN CRASHWORTHINESS POST-TINCHER

Chapter 6: Strict Liability Concepts
6-1 INTRODUCTION
6-2 PENNSYLVANIA’S STRICT LIABILITY THEORY OF RECOVERY
6-3 CATEGORIES OF PRODUCT DEFECTS
6-3:1 Design Defects
6-3:2 Manufacturing Defects
6-3:3 Inadequate Warnings
6-3:4 Unavoidably Unsafe Products
6-3:5 Failure-to-Warn Jury Instructions
6-4 DAMAGES
6-4:1 Economic Loss Doctrine
6-4:2 Emotional Distress
6-4:3 Punitive Damages
6-5 DEFENSES
6-5:1 Contributory Negligence / Comparative Fault
6-5:2 Assumption of the Risk
6-5:3 Unintended Use / Misuse / Subsequent Changes
6-5:4 Statute of Limitations
6-5:5 Sophisticated User Doctrine

Chapter 7: Breach of Warranty
7-1 BREACH OF WARRANTY—GENERALLY
7-2 BREACH OF EXPRESS WARRANTY
7-3 BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
7-4 BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
7-5 DEFENSES
7-5:1 Privity
7-5:2 Notice of Breach of Warranty
7-5:3 Disclaimer of Warranties
7-6 MAGNUSON-MOSS WARRANTY—FEDERAL TRADE COMMISSION IMPROVEMENT ACT
7-6:1 Introduction and the Rules Governing the Contents of Warranties
7-6:2 Standards for Written Warranties
7-6:3 Implied Warranties
7-6:4 Remedies under the Act

Chapter 8: Negligence
8-1 INTRODUCTION TO NEGLIGENCE
8-1:1 Elements of a Negligence Claim
8-1:2 Scope of Applicability of Negligence in Products Liability
8-1:2.1 Counsel Should Include Negligence Claim in Many Situations
8-1:2.2 Standard of Care for Products Liability Defendants
8-1:2.3 Negligence and the Risk-Utility Test
8-1:3 Plaintiff Must Establish that Defendant Owed a Duty
8-1:3.1 Existence of a Duty as a Question of Law
8-1:3.2 Foreseeability in the Duty Analysis
8-1:3.3 The Relationship of Duty to Product’s Design, Manufacture, or Warning
8-1:4 “Unreasonable Risk of Harm to Others”
8-2 DEFENSES TO NEGLIGENCE
8-2:1 Contributory Negligence and Comparative Negligence
8-2:2 Assumption of the Risk in Negligence Cases
8-2:2.1 Inherent Harms in Using 19th Century Doctrine
8-2:2.2 Varied Forms of Assumption of the Risk
8-2:2.2a    Assumption of Risk May Be Express or Implied
8-2:2.2b    Primary and Secondary Implied Assumption of Risk
8-2:2.3 Jurisdictional Applications of Assumption of the Risk
8-2:2.3a    The Firefighter’s Rule
8-2:2.3b    Assumption of Risk in Products Liability Cases
8-3 RES IPSA LOQUITUR
8-4 LITIGATING NEGLIGENCE AND HANDGUNS
8-5 NEGLIGENCE CLAIMS POST-TINCHER
8-5:1 The Court’s Summary of Duty of the Defendant
8-5:2 Breach of Duty 
8-5:3 Adoption of a Combined Risk-Utility and Consumer Expectation Standard Test 

Chapter 9: Manufacturing and Design Defects
9-1 INTRODUCTION
9-2 MANUFACTURING FLAWS IN PRODUCTS LIABILITY LITIGATION
9-2:1 Introduction to Manufacturing Flaws
9-2:2 Key Elements of a Negligent Manufacture Claim
9-2:2.1 Proving that the Manufacturer Breached the Standard of Care
9-2:2.2 Failure to Perform or Inadequate Performance of Required Testing
9-2:3 Manufacturing Defects and Strict Liability
9-2:3.1 Negligence Principles Inapplicable to Manufacturing Defect Claims
9-2:3.2 “Manufacturing Defect” Defined
9-2:3.3 Products May be Subject to Manufacturing Defect
9-2:3.4 Proof of a Manufacturing Defect in Strict Liability Claims
9-2:3.5 Manufacturing Defects in Older Products
9-2:4 Proving that the Manufacturing Defect Caused the 
    Injury
9-3 DESIGN FLAWS IN PRODUCTS LIABILITY LITIGATION
9-3:1 Design Flaws Generally
9-3:1.1 Factors to Consider in Product Design
9-3:1.2 Judicial Concern About Repercussions of Design Defect
9-3:1.3 Design Defect as Most Common Products Liability Claim
9-3:1.4 Idiosyncratic Consumers
9-3:1.5 Admissibility of Post-Distribution Evidence to Prove Design Defect
9-3:2 Identifying a Negligent Design Claim
9-3:2.1 Elements of a Negligent Design Claim
9-3:2.2 History of Negligent Design Claims
9-3:2.3 Breach of the Duty of Care Regarding Product Design
9-3:3 Design Defects in Strict Liability
9-3:3.1 No Uniformity Among States in Determining Whether Design is Defective
9-3:3.2 Absence of Safety Device as Defect
9-3:3.3 Product Need Not Be Accident-Proof; Causation
9-3:4 Design Defects and Risk-Utility Analysis
9-3:4.1 Use of Negligence Concepts in Risk-Utility Analysis
9-3:4.2 Wade Factors
9-3:4.3 Additional Factors Used in Risk-Utility Analysis
9-4 SAFER, FEASIBLE ALTERNATIVE DESIGNS IN DESIGN CASES
9-5 POST-TINCHER ANALYSIS

Chapter 10: Warning Defects
10-1 INTRODUCTION TO WARNING DEFECT CLAIMS—THE NATURE OF WARNING CLAIMS
10-1:1 Warnings as Independent Basis for Products Liability
10-1:2 Warnings vs. Instructions
10-1:3 Effects of Limitless Warning Claims
10-1:4 General Rule: Duty to Warn is Limited to One’s Own Products
10-1:4.1 Disadvantage to Asbestos Victims
10-1:4.2 Respirator Manufacturers’ Liability for Asbestos Injuries
10-1:4.3 Liability for Replacement Parts Containing Asbestos
10-2 WARNINGS AND THE NEGLIGENCE-STRICT LIABILITY DILEMMA
10-2:1 Strict Liability Warning Claims vs. Claims Based on Negligence
10-2:2 Knowledge Requirements for Warning Claims     Based on Negligence
10-2:3 Knowledge Requirement for Strict Liability Warning Claims
10-3 SUFFICIENCY OF WARNINGS
10-3:1 Satisfying the Sufficiency Requirement
10-3:1.1 Warning Must be Adequate in Form and Content
10-3:1.2 Adequacy of Warning as a Question for the Jury
10-3:1.3 Adequacy of Warning as a Question of Law
10-4 WARNINGS AND ESTABLISHING CAUSATION
10-4:1 Burden of Proof
10-4:1.1 Proving That Inadequate Warning Caused Injury
10-4:1.2 No Causation When Product User Was Already Aware of Danger
10-4:1.3 Overcoming Plaintiff’s Failure to Read Warning on Causation
10-5 WARNING DEFECTS AS MENTIONED IN TINCHER

Chapter 11: Compensatory Damages
11-1 INTRODUCTION
11-2 OVERVIEW OF COMPENSATORY DAMAGES IN PRODUCTS LIABILITY ACTIONS
11-2:1 Damages for Medical Expenses
11-2:2 Damages for Death
11-2:2.1 Wrongful Death
11-2:2.2 Survival
11-2:3 Loss of Consortium
11-2:4 Physical Impairment
11-2:5 Disfigurement
11-2:6 Wrongful Life
11-2:7 Loss of Earning Capacity

Chapter 12: Punitive Damages
12-1 OVERVIEW
12-2 STATUTE OF LIMITATIONS AND PUNITIVE DAMAGES
12-2:1 When a Cause of Action Accrues
12-2:2 Introduction of New Claims
12-2:3 Exceptions
12-2:3.1 Discovery Rule
12-2:3.2 Fraudulent Concealment
12-3 CONSIDERATIONS REGARDING THE IMPOSITION OF PUNITIVE DAMAGES

Chapter 13: Indemnity, Contribution and Apportionment
13-1 INTRODUCTION—ALLOCATION OF FAULT
13-2 INDEMNITY
13-2:1 Impact of Settlement on a Claim for Indemnity
13-3 CONTRIBUTION
13-3:1 Impact of Settlement on Contribution Claims
13-4 APPORTIONMENT OF LIABILITY BETWEEN JOINT TORTFEASORS

Chapter 14: Jurisdiction, Venue, and Related Principles
14-1 “GENERAL JURISDICTION” DISTINGUISHED FROM “SPECIFIC JURISDICTION” 
14-1:1 Long-Arm Statutes Provide for Specific Jurisdiction
14-1:1.1 The World-Wide Breakthrough
14-1:1.2 Crucial Principles of World-Wide
14-1:2 Long-Arm Statutes More Restrictive Than the     Due Process Clause
14-1:3 The Facts of Asahi Metal Industry Co. v.     Superior Court
14-1:3.1 The Asahi Holding
14-1:3.2 The Three Asahi Opinions
14-1:3.3 The Third Circuit Has Not Yet Chosen Among Asahi Tests
14-1:3.4 Internet’s Effect on Personal Jurisdiction
14-1:3.5 J. McIntyre Machinery, Ltd. v. Nicastro: Plurality Reverts to “Purposeful Availment” Standard
14-1:3.6 Evaluating the Viability of the Stream-of-Commerce Theory Post-Nicastro
14-2 ESTABLISHING GENERAL JURISDICTION OVER FOREIGN CORPORATIONS
14-2:1 Proving “Continuous and Systematic” Contacts
14-2:2 Goodyear Dunlop Tires Operations v. Brown:     “Stream-of-Commerce” Theory Does Not Apply in     General Jurisdiction Analysis
14-3 VENUE AND FORUM NON CONVENIENS
14-3:1 Venue and Jurisdiction Distinguished
14-3:2 Transfer of Venue; 28 U.S.C.S. § 1404(a)
14-3:3 State Venue Statutes
14-3:4 Court May Dismiss Case in Favor of Suitable     Alternative Forum
14-3:5 Forum Non Conveniens in State Court

Chapter 15: Discovery Process
15-1 DISCOVERY PROCESS 
15-1:1 Overview of Discovery in Products Liability Litigation
15-1:1.1 Nature of Discovery Varies from Court to Court
15-1:1.2 Non-Expert Discovery of Plaintiff is Relatively Straightforward
15-1:1.3 Plaintiff’s Non-Expert Discovery of Defendant is Far Reaching
15-1:1.3a    Plaintiffs Seeking to Prove Design Defect are Entitled 
to Broader Scope of 
“Relevant” Information
15-1:1.3b    Identifying Overly Broad or Unduly Burdensome 
Discovery Requests
15-1:1.3c    General Rule: Party Resisting Discovery Bears the 
Burden of Explaining 
Propriety of Objections
15-1:1.3d    Both Parties Should Prepare 
to Compromise
15-1:1.4 Plaintiffs and Defendants: Similar 
Approach to Expert Discovery
15-1:1.5 Court May Dismiss Case as Discovery Sanction
15-1:2 2000 Amendments to Federal Rules of 
Civil Procedure
15-2 DISCOVERY DEVICES IN PRODUCTS LIABILITY LITIGATION
15-2:1 Laws of Forum Court Govern Discovery
15-2:2 Interrogatories
15-2:3 Requests for Production of Documents and Things
15-2:4 Requests for Admissions
15-2:5 Depositions
15-3 DISCOVERY OF EXPERT WITNESSES
15-3:1 Discovery of Expert Witnesses – In General
15-3:2 Expert Discovery Pursuant to Federal Rules
15-3:2.1 Disclosures
15-3:2.2 Trial Preparation
15-4 LIMITS ON DISCOVERY
15-4:1 Use of Privileges and Other Devices to Protect Documents from Disclosures
15-4:2 Trade Secrets
15-4:3 Attorney-Client Privilege
15-5 DISCOVERY FROM DEFENDANTS AND FOREIGN NON-PARTIES
15-5:1 Generally
15-5:2 Hague Evidence Convention-Background
15-5:3 Terms of the Hague Evidence Convention
15-5:4 Application of the Hague Evidence Convention 
    by American Court from Ratification 
    through Aerospatiale
15-5:5 Discovery From Foreign Nationals Domiciled 
    in Countries That Have Not Signed the Hague 
    Evidence Convention
15-6 FREEDOM OF INFORMATION ACT (FOIA)
15-6:1 Generally
15-6:2 Materials Subject to the Act
15-6:3 Nine Exemptions
15-6:3.1 Generally
15-6:3.2 National Security and Foreign Policy Exemption
15-6:3.3 Internal Personnel Rules and Practices Exemption
15-6:3.4 Statutory Exemptions
15-6:3.5 Trade Secrets Exemption
15-6:3.6 Inter-Agency Memorandum 
Exemption
15-6:3.7 Personnel and Medical Records Exemption
15-6:3.8 Law Enforcement Records Exemption
15-6:3.9 Financial Institution Exemption
15-6:3.10 Geological and Geophysical Information Exemption
15-6:4 Procedure under FOIA

Chapter 16: Evidence in Products Liability Litigation
16-1 OVERVIEW OF EVIDENCE IN PRODUCTS LIABILITY LITIGATION
16-2 EVIDENCE OF OTHER OCCURRENCES OR ACCIDENTS
16-2:1 Evidence of Prior Occurrences or Accidents
16-2:1.1 Evidence of Prior Occurrences is Often Admissible
16-2:1.2 Requirement for Substantial Similarity
16-2:1.3 Trial Judge’s Discretion in Determining Whether Prior Occurrence is Substantially Similar
16-2:1.4 Exception to Substantial Similarity Requirement: When Evidence is Offered to Explain Scientific or Physical Principles
16-2:1.5 Grounds for Admission of Substantially Similar Occurrences
16-2:1.6 Admissibility of Substantially Similar Civil Lawsuits
16-2:1.7 Admissibility of Accident Evidence Involving Similar Product Produced by Entity Other than Defendant
16-2:1.8 Admissibility of Prior Accidents Appearing in Governmental Reports
16-2:2 Evidence of the Absence of Other Occurrences     or Accidents
16-2:3 Evidence of Subsequent Occurrences or Accidents
16-3 EVIDENCE OF STATE-OF-THE-ART
16-3:1 State-of-the-Art Defined
16-3:2 Admissibility of State-of-the-Art Evidence in Claims Based on Negligence
16-3:3 Admissibility of State-of-the-Art Evidence in Claims Based on Strict Liability
16-3:3.1 Inconsistent Approaches to Admissibility
16-3:3.2 State-of-the-Art Evidence and Common Law Strict Liability Cases
16-4 EVIDENCE OF TRADE CUSTOMS, INDUSTRY PRACTICES, AND TECHNICAL STANDARDS
16-4:1 General Rule: Evidence of Trade Customs, Industry Practices, and Technical Standards is Admissible
16-5 EVIDENCE OF STATUTES, ADMINISTRATIVE REGULATIONS, AND ADMINISTRATIVE CODES
16-6 EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES
16-6:1 Introduction of Remedial Measures Evidence
16-6:1.1 Repair Doctrine Becomes Operative After Triggering “Event”
16-6:1.2 Examples of Post-Accident Modifications
16-6:1.3 Applicability of Repair Doctrine to Strict Liability Actions
16-6:1.4 Repairs Doctrine Applies to Warning, Manufacturing, and Design Changes
16-6:1.5 Exceptions to Repair Doctrine
16-6:1.6 Admissibility of Subsequent Remedial Measures to Impeach
16-6:1.7 Admissibility of Subsequent Remedial Measures on the Issue of Feasibility
16-6:2 Subsequent Remedial Measures in the Federal Courts
16-6:2.1 Congress Revised Fed. R. Evid. 407 in 1997 403
16-6:2.1a    The Original Rule Was Promulgated Because 
Subsequent Conduct Was 
Not an Admission of 
Liability
16-6:2.1b    The Original Rule Was Also Promulgated Because of 
Public Policy
16-6:2.1c    Subsequent Remedial Measures May be Introduced to Prove Ownership
16-6:2.2 Products Liability Cases
16-6:2.2a    Federal Courts Exclude Subsequent Remedial Measures 
in Negligence Cases
16-6:2.2b    Defendant Cannot Introduce Subsequent Remedial 
Measures Taken By a 
Plaintiff
16-6:2.2c    Evidence of Subsequent Remedial Measures Not Admissible in Strict Liability Cases
16-6:2.2d    Party’s Motive for Making 
the Subsequent Remedial Measure is Irrelevant
16-6:2.2e    Expert May be Permitted to 
Base Testimony on 
Subsequent Remedial 
Measure
16-6:2.3 Post-Manufacture, Pre-Accident Remedial Measures Fed. R. Evid. 407 Applies Only to Remedial Measures Taken After Event
16-6:2.3a    Cases Illustrating 
Inapplicability of Fed. R. 
Evid. 407 to Measures 
Taken Before Event
16-6:2.4 Remedial Measures Taken by Third 
Persons Rule 407 Only Applies to 
Actions Taken by Defendant
16-6:2.4a    Rule 407 Does Not Apply to Remedial Measures Taken 
by Third Parties
16-6:2.5 “Superior Authority” Exception
16-6:2.6 Fed. R. Evid. 407 Does Not Require Exclusion of Evidence of Defendant’s Investigation into Accident
16-7 DEMONSTRATIVE EVIDENCE
16-7:1 Demonstrative Evidence: A Ubiquitous Aspect of Product Litigation
16-7:1.1 Authentication of Demonstrative 
Evidence; Fed. R. Evid. 901, 902 413
16-7:1.2 Substantial Similarity
16-7:1.2a    Examples of Cases 
Discussing Substantial 
Similarity Requirement
16-7:1.3 Exclusion of Demonstrative Evidence on Grounds of Prejudice, Confusion, or Waste of Time
16-7:1.3a    Fed. R. Evid. 403 Recognizes Discretionary Role of 
Trial Judge
16-7:1.3b    Exclusion on Grounds of 
Unfair Prejudice
16-7:1.3b1 Cases Discussing Prejudicial Effect 
of Demonstrative Evidence
16-7:1.3c    Exclusion on Grounds of 
Being Confusing and 
Misleading
16-7:1.3c1 Distinguishing Between 
Confusion and Misleading 
Evidence
16-7:1.3d    Exclusion on Grounds of 
Being Cumulative and 
Time Consuming
16-7:1.3d1 Examples of Demonstrative Evidence Excluded 
Because of Undue Delay, Waste of 
Time, or Needless Presentation of Cumulative 
Evidence
16-7:1.4 Conditional Admissibility; Limiting Instructions
16-7:1.4a    Examples of Limiting Instructions
16-7:2 Demonstrative Evidence in Products Liability
16-7:2.1 Actual, Allegedly Defective Product
16-7:2.1a    Admissibility of Product Following Significant 
Alterations
16-7:2.1a1 Situations Where 
an Altered Product 
is Admitted
16-7:2.1b    Spoliation of Evidence
16-7:2.1b1 Defective Product is 
Frequently Destroyed, 
Damaged, or 
Lost
16-7:2.1b2 Protective Orders 
and Sanctions 
as Remedies for 
Spoliation
16-7:2.1b3 Spoliation of Evidence Is Not a Separate Tort In 
Pennsylvania.

Chapter 17: Expert Evidence and Products Liability
17-1 INTRODUCTION TO EXPERT TESTIMONY
17-1:1 Experts Play Crucial Role in Almost All Product Liability Cases
17-1:2 Expert Testimony Must Assist Trier of Fact
17-2 QUALIFICATIONS OF EXPERTS
17-2:1 Court May Qualify Witness as Expert in Wide Range of Endeavors
17-2:2 Fed. R. Evid. 702 Provides Liberal Rule of Qualification
17-2:3 Determination of Competency of Expert Witness is Discretionary
17-2:4 Determination of Expert’s Qualification is Fact-Intensive
17-2:5 Witness With General Competence and Specific Competence May Qualify as an Expert
17-3 FACTUAL BASIS FOR EXPERT TESTIMONY
17-3:1 Fed. R. Evid. 703 Provides Liberal Rule of Qualification
17-3:2 Courts’ Determination of Whether Facts Are of Type “Reasonably Relied On” by Expert in Field
17-4 EXPERT METHODOLOGY AND RELIABILITY
17-4:1 Introduction to Reliability Analysis of Expert Methodology
17-4:2 Ascendancy of Daubert v. Merrell-Dow 
Pharmaceutical Co. and Demise of Frye v. 
United States
17-4:2.1 Supreme Court Sets Forth Standards for Admissibility of Expert Testimony
17-4:2.2 General Electric Co. v. Joiner Endorses District Court’s Broad Discretion in Admitting Testimony
17-4:2.3 Kumho Tire Co., Ltd. v. Carmichael: Daubert Applies to Testimony Based on Technical or Other Specialized Knowledge
17-4:2.4 Wiesgram v. Marley Co.: Court of Appeals May Reverse if Testimony is Erroneously Admitted
17-4:3 States Continuing to Apply Frye or Applying Idiosyncratic Standards
17-4:3.1 Pennsylvania Continues to Apply Frye
17-4:4 Methods for Fulfilling Gatekeeping Function Under Daubert
17-4:5 Federal Courts Continue to Interpret Daubert
17-4:5.1 Third Circuit Expanded Upon Daubert Criteria
17-4:5.1a    Examples of Courts Applying Daubert/Paoli Factors.
17-4:5.2 “Fit” Requirement
17-4:5.3 Expert Should Explain Underlying Reasoning or Methodology
17-4:5.4 Opinions Developed Solely for Litigation Purposes
17-4:5.5 “Indicia of Reliability”
17-4:5.6 No Single Factor is Determinative in Daubert Analysis
17-4:5.7 Failure to Test Expert’s Theory is Important Factor
17-4:5.8 Daubert’s Focus is on Methodology, Not Conclusions
17-5 THE USE OF EXPERT WITNESSES UNDER THE CONSUMER EXPECTATION AND RISK-UTILITY STANDARDS

Chapter 18: Automotive Products Liability Law (Lemon Law)
18-1 PENNSYLVANIA LEMON LAW
18-1:1 Nonconformity
18-1:2 Presumption of Reasonable Number of Attempts
18-1:3 Damages
18-2 MAGNUSON-MOSS WARRANTY ACT (MMWA) AND UNIFORM COMMERCIAL CODE (UCC)
18-2:1 Breach of Warranty
18-2:2 Damages
18-3 UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (UTPCPL)
18-3:1 Purpose of the Law
18-3:2 Violations
18-3:3 Damages
18-4 LEMON LAW STATUTE OF LIMITATIONS
18-4:1 Accrual of Time for UCC Breach of Express and Implied Warranties
18-4:2 Caveat – Argument for a Six-Year Limitations Period
18-4:3 Recent Changes

Chapter 19: Federal Preemption
19-1 PREEMPTION OF STATE LAW CLAIMS
19-1:1 Preemption In General, Application to Common Law Claims in Product Liability Actions, Preemption and Products Liability
19-1:2 Preemption as a Defense
19-2 PREEMPTION IN PENNSYLVANIA
19-3 SPECIFIC EXAMPLES OF PREEMPTION
19-3:1 The Federal Hazardous Substances Act
19-3:2 Toys, The CPSC, CPSA and NTMVSA
19-3:3.1 Conflict Preemption and the CPSA
19-3:3.2 Express Preemption and the CPSA
19-4 MEDICAL DEVICES AND FEDERAL PREEMPTION
19-4:1 MDA Classifications
19-4:2 Express Preemption Under the MDA
19-5 OSHA AND PREEMPTION
19-5:1 Field Preemption Under OSHA
19-6 
PREEMPTION AND THE FEDERAL BOAT SAFETY ACT OF 1971 497
19-6:1 Express Preemption and the FBSA
19-6:2 The FBSA’s Savings Clause Does Not Preserve Common Law Claims
19-7 SUMMARY JUDGMENT WHERE PREEMPTION EXISTS
19-8 CONCLUSION

Chapter 20: Food, Drugs and Rock and Roll . . . or Medical De-vices (Hair Today, Gone Tomorrow)
20-1 FOOD (DO VIENNA FINGERS COUNT?)
20-2 MEDICAL DEVICES
20-3 PREEMPTION IN DESIGN DEFECT AND PRODUCTS LIABILITY FAILURE TO WARN
20-3:1 Drugs and Preemption
20-3:1.1 In General
20-3:1.2 Express Preemption
20-3:1.3 Conflict in the Circuits
20-3:1.4 Pennsylvania Law
20-4 HAIR PRODUCTS

Chapter 21: Recalls
21-1 “RECALL” DISTINGUISHED FROM “RETROFIT”
21-2 FEDERAL AGENCIES WITH STATUTORY AUTHORITY TO RECALL PRODUCTS
21-3 NO COMMON LAW DUTY TO RECALL IN VAST MAJORITY OF JURISDICTIONS
21-4 “POST-SALE DUTY TO WARN” DISTINGUISHED FROM “DUTY TO RECALL”
21-5 STATUTORY AND OTHER AUTHORITY AUTHORIZING RECALLS
21-5:1 National Traffic and Motor Vehicle Safety Act
21-5:2 Consumer Product Safety Act
21-5:3 Food Drug and Cosmetic Act
21-5:4 National Manufactured Home Construction and Safety Standards Act
21-5:5 Recreational Vessels Act
21-5:6 Federal Trade Commission
21-6 DEFINITION OF DEFECT FOR PURPOSES OF RECALL
21-6:1 Regulatory “Defect” Versus Products Liability Defect
21-6:2 National Traffic and Motor Vehicle Safety Act
21-6:3 Consumer Product Safety Act and “Defect” - Statutory Basis for Recall, “Imminently Hazardous Product” and “Substantial Product Hazard”
21-7 VOLUNTARY RECALLS AND MANDATORY RECALLS
21-8 RECALL NOTICES AND EVIDENTIARY CONSIDERATIONS
21-8:1 Recall Notices are Generally Admissible to Show that Defect Existed While in Hands of Manufacturer
21-8:2 Failure to Recall as Evidence for Punitive Damages
21-8:3 Recall Notice Must be Relevant to be Admitted
21-8:4 Recall Notice may be Inadmissible Under Repair Doctrine and Fed. R. Evid. 407 542
21-8:5 Public Policy
21-9 CPSC RECALL RESOURCES