Published By: Maxwell S. Kennerly, Esquire

Product Liability

Subscribe to Product Liability via RSS

The lawsuit brought by financier Amir Shenaq against mass-torts law firm AkinMears has made the rounds of the tort reform blogs (e.g., SETexas Record, Daniel Fisher at Forbes, and Paul Barrett at Bloomberg), so I figured some plaintiff-side commentary was in order. The details of the lawsuit confirm what I’ve been saying for years: “Mass torts is not an area in which you want to dabble and start throwing around discounts. It’s work, it’s risky, and it can be very, very expensive.”

In essence, a former hedge fund executive filed suit against the law firm claiming that he was hired to raise millions of dollars in funding so that the firm could acquire thousands of transvaginal mesh lawsuits. He alleges that he brought in the funding (through his connections in the finance world), but, once he did, the firm fired him.

Shenaq’s complaint was filed publicly then sealed by the court. As Forbes recounts, the Complaint alleges:

“AkinMears is not run like a traditional plaintiff’s law office, and the Firm’s lawyers do not do the types of things that regular trial lawyers do,” like meet clients, file pleadings and motions, attend depositions “or, heaven forbid, try a lawsuit,” Shenaq claims in his suit. “Despite the fact that AkinMears’ lawyers do not have to dirty their hands with the mundane chores that come with actually practicing law,” the firm charges a 40% contingency fee “which is then divided in some fashion among the participants in its ever-shifting syndicate.”

And, of course, there’s also an allegation about the plaintiff’s lawyers buying themselves an interest in a private jet.
Continue Reading The Lucrative Mass Torts Scam That Wasn’t

It’s finally here: Tincher v. Omega Flex, the Pennsylvania Supreme Court’s overhaul of strict liability. If you’re unfamiliar with the recent turbulence surrounding strict liability, check out this post of mine from July 2012, which will take you all the way from Webb v. Zern, 220 A.2d 853, 854 (1966) to Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Tincher is a foundational opinion, one that resets the landscape of strict liability and puts it on a more secure and coherent framework for the future.

The 137-page majority opinion written by Chief Justice Castille may become his magnum opus. It rises swiftly into the high politics of separation of powers (pp. 29–37), unearths the half-century-old foundations of strict liability in Pennsylvania (pp. 37–57), reviews the entirety of the precedent (pp. 57–74), explains the practical problems of the doctrine as used today (pp. 74–84), outlines the conceptual framework for strict liability (pp. 84–107), and charts the path forward (pp. 107–137).

It even quotes David Hume (p. 38) and includes a sly reference to Einstein’s dual theories of relativity (p. 110, criticizing the Third Restatement as having “general and special rules” for different types of products, rules that together fail to “state a general principle of liability consistent with the public policy that compensation is available for an injury caused by any type of defective product”).

The opinion is also unanimous, given that the whole court joined it, although Justice Saylor wrote and Justice Eakin joined a two-page “concurring and dissenting” opinion. Justice Saylor says that, if “left to [his] own devices,” he would adopt the product liability segment of the Third Restatement of Torts — an approach the majority opinion he joined eviscerated (pp. 33-37, 107-117), concluding it was “unmoored from guidance upon the broader legal issue,” making it at best “a superficially enticing option” that “risk[s] elevating the lull of simplicity to doctrine.” Slip op. at 116 (quoting Scampone). Frankly, I don’t see the incongruous ‘concurring and dissenting’ opinion having much impact going forward.

The majority opinion admits that it is part of an “incremental approach,” and that much lies ahead in “the development of strict liability law in Pennsylvania.” Slip op., p. 116. So let’s roll up our sleeves and figure out how to best apply the case going forward.

Predictably, the defense bar, the big corporate manufacturers, and the insurance companies have started claiming that Tincher actually adopted the Third Restatement by stealth, that this stunning reaffirmation of the purpose of strict liability and of the role of the jury as ultimate fact-finder is somehow favorable for them. See, e.g., Ballard Spahr, Morgan Lewis, and, of course, Drug and Device Law. We’ll come back to them.

Here are the five key points I’ve drawn from the opinion:
Continue Reading Tincher v. Omega Flex: Five Key Points From Pennsylvania’s New Standard For Strict Liability

[Update, March 14, 2013: A little more than a week after my post went up, the President of the American Congress of Obstetricians and Gynecologists (ACOG) issued a statement noting “the outcome of any surgery is directly associated with the surgeon’s skill,” and urging patients “to separate the marketing hype from the reality when considering the best surgical approach for hysterectomies.”]

In Kurt Vonnegut’s novel Player Piano, machines have replaced humans in most jobs, but only humans can be barbers and surgeons, given the complexity of the movements required. As Vonnegut noted, barbers “[u]sed to be sort of doctors, bleeding people and setting their bones and all, and then the doctors got sore and took over all that stuff and left the barbers haircutting and shaving. Very interesting history.” Interesting indeed: for more on the history connection between barbers and surgeons, see “From Haircuts to Hangnails – The Barber-Surgeon.”

I had Player Piano on my mind as a result of two articles published last week relating to robotically assisted hysterectomies. The efficacy and safety of robotic assisted surgeries, particularly hysterectomies, is an issue of growing importance. The Da Vinci Surgical robotic surgery system is advertised as having “the potential for significantly less pain, a shorter hospital stay, faster return to normal daily activities,” but it is become increasingly clear that the system has no additional benefits beyond typical laparoscopic surgery, while imposing additional costs and risks.

First, the Journal of the American Medical Association published “Robotically Assisted vs Laparoscopic Hysterectomy Among Women With Benign Gynecologic Disease,” a study that found “Between 2007 and 2010, the use of robotically assisted hysterectomy for benign gynecologic disorders increased substantially. Robotically assisted and laparoscopic hysterectomy had similar morbidity profiles, but the use of robotic technology resulted in substantially more costs.” For a while now, surgeons have questioned the value of these machines (one example here, another here), given the absence of any proof that they’re better while costing more than double the price of a typical laparoscopic hysterectomy, and this study confirms the absence of any additional benefit. As the accompanying JAMA editorial argued, “Consumer advertising of expensive devices should be subjected to the same scrutiny as that of new and expensive medications.”

Second, Bloomberg News reported that the Food and Drug Administration was surveying surgeons to see if the $1.5 million “Da Vinci” surgical robot manufactured by Intuitive Surgical, Inc., was safe. Bloomberg framed the issue as, “[t]he answers may sway debate on whether robotic surgeries promoted as being less invasive are worth the extra cost,” which is partly true, but we need to clarify what we’re talking about: robotically-assisted hysterectomies. There are plenty of other fascinating robotic surgeries that are being studied and practiced, but each different type of surgery should be analyzed separately.

I can tell you the answer quite frankly: no, robotic hysterectomies are not worth the extra cost, and they are likely more risky than laparoscopic surgeries done without them. 
Continue Reading “Player Piano” Robotic Surgeries Put Women’s Lives At Risk

Pennsylvania law relating to product liability — i.e., whether the Second Restatement or Third Restatement of Torts applies — continues to be hotly disputed, an issue that came back up again with the Pennsylvania Supreme Court’s opinion in Reott v. Asia Trend. Reott involved a man who fell while trying to install a tree stand; in sum the Pennsylvania Supreme Court held that the burden is on a defendant in a products liability action to plead and prove as an affirmative defense that an injured party’s “highly reckless conduct” was the sole or superseding cause of the injuries.

As an article in The Legal Intelligencer explained, the case matters in situations beyond “highly reckless” plaintiffs because it was yet another example of that Court relying on the Second, rather than the Third, Restatement. It’s thus another confirmation of a point I made on this blog back in July while discussing the split in Pennsylvania strict liability law: “for decades the Pennsylvania Supreme Court has ruled that the Restatement (Second) of Torts applies. It has never held otherwise.”

Yet, although the Pennsylvania Supreme Court has never adopted the Third Restatement (and has turned down several opportunities to do so), the Third Circuit has oddly predicted that the Pennsylvania Supreme Court would do so. We’re thus stuck with the federal appellate court with jurisdiction over Pennsylvania commanding federal trial courts in Pennsylvania to apply a version of law that isn’t actually being applied in Pennsylvania.

All of that’s covered in my post from July, which was prompted by a Middle District of Pennsylvania opinion in Sikkelee v. Precision Airmotive Corp, a products liability case involving an airplane crash, which held that the Second Restatement still applied: in short, after the Third Circuit held in Covell that the Third Restatement was the law of Pennsylvania, the Pennsylvania Supreme Court again applied the Second Restatement (in Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012)). Sikkelee,  2012 U.S. Dist. LEXIS 91497 (M.D. Pa. 2012).

Then the already-strange situation became downright weird.Continue Reading The Third Circuit’s Curious, Non-Binding Dicta In The Sikkelee Product Liability Case

[Update: The good folks (despite being defense lawyers) at Abnormal Use have posted a defense of the slide, one worth reading.]

When I first saw it, I did a double-take to make sure I wasn’t reading The Onion. The headline at the Consumer Product Safety Commission was, “Children’s Slides Recalled by Landscape Structures due to Fall Hazard,” and one of the pictures included the slide in question:

Who designed that? How did they think it was going to work? I have no doubt the manufacturer is right that “The Evos® Slalom Glider® is a thrilling ride that promotes balance and coordination,” because odds are pretty good a kid is going to fall off and break their arm or knee when they land. Standing on the roof of a moving car is also a “thrilling ride that promotes balance and coordination.”

Unsurprisingly, the CPSC recalled the things after at least 16 children under 8 years old were seriously injured by falls, and at least one lawsuit has been filed. (Thank goodness for those playgrounds conforming to ASTM F1292 surface impact specifications; if the kids had been on asphalt or concrete, we would probably see far more skull fractures and brain injuries.)

I’ve written before about the legal issues raised by playground safety. 
Continue Reading Hopelessly Unsafe Playground Slide Recalled