Author Archives: Matthew R. Shindell

Avoiding Re-Litigation With Carefully Crafted Indemnification Clauses

Retailers and manufacturers can avoid the re-litigation of product liability claims by entering into a well-crafted indemnification agreement. They can protect their interests by including some crucial information in their agreements, which was exemplified in a recent opinion from the California Court of Appeals in National Union Fire Ins. Co. of Pittsburgh PA v. Tokio Marine and Nichido Fire Ins. Co. In that case, a plaintiff settled a product liability claim against the manufacturer and distributor of a tire for $5.5 million and $1.1…

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Pennsylvania Supreme Court Overrules Azzarello But Declines Opportunity To Adopt Restatement Third of Torts

On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in  Tincher v. Omega Flex, Inc. Having originally granted allowance of appeal to decide whether to replace the strict liability analysis of Section 402A of the Restatement Second, Pennsylvania’s highest court declined the opportunity and instead overruled  its 1978 ruling in Azzarello vs. Black Brothers, 391 A.2d 1020 (Pa. 1978). The four justice majority opinion (available here), written by Chief Justice Ronald D. Castille, held that Pennsylvania will continue to apply the…

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Proposed Bill to Ban Use of Plastic Microbeads

Cosmetic companies should take notice of a law passed in Illinois earlier this year to ban the manufacture of personal care products containing microbeads. Microbeads are made of polyethylene, which is the same plastic used in garbage cans, plastic bags, and bulletproof vests. These plastic particles are often used as an artificial replacement for natural exfoliates in beauty products such as soap and face cream. A study performed on Lake Michigan reportedly found 17,000 bits of these tiny plastic items per square kilometer. Environmentalists have…

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Pennsylvania Supreme Court Refuses to Hear Appeal on Exclusion of Expert Testimony in Brain Cancer Case

Under Pennsylvania law, an expert’s testimony is admitted if the methodology that underlies his or her conclusions has been generally accepted in the scientific community.  A court must determine whether an expert’s proposed testimony, through the application of scientific, technical, or specialized expertise, will assist the trier of fact in understanding the evidence. Hence, there must be a sufficient factual basis for an expert’s conclusions.  Expert testimony does not become scientific knowledge merely because it was offered by a scientist. The Superior Court of Pennsylvania…

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California Law Proposed to Require Labeling of Genetically Modified Foods

The California State Legislature recently proposed SB 1381, which requires manufacturers to label genetically modified foods. The bill places limitations on potential litigation and only permits an injured party to collect attorney’s fees and costs. Connecticut and Maine have similar laws but they are contingent upon four or five additional states passing similar legislation. California’s proposed bill does not contain this contingency requirement.  Many business groups oppose this bill. The Agricultural Council of California estimates the proposed requirements will increase the cost of food, which…

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Pain Pump Manufacturer Prevails on Summary Judgment

In Mack v. Stryker Corp., the plaintiff instituted a product liability action that alleged a pain pump was defective and caused her to develop a painful shoulder condition. The defendant-manufacturer filed a motion for summary judgment, which argued the case should be dismissed because it was not foreseeable that the use of the pump would lead to joint damage. A federal court in Minnesota agreed and dismissed the plaintiff’s claim.  The Eighth Circuit affirmed even though the plaintiff provided expert testimony from an orthopedic surgeon…

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Federal Courts in Pennsylvania Continue to Apply the Third Restatement of Torts to Product Liability Cases

Over the past fifty years Pennsylvania Courts have applied the Restatement (Second) to strict liability claims, which indicates a product is defective if it left the supplier’s control either 1) lacking any element necessary to make it safe for its intended use, or 2) possessing any feature that renders it unsafe for its intended use. Under the Second Restatement, negligence principles are not supposed to apply. However, in recent years courts have begun to distance themselves from this principle. In 2011, the Third Circuit in…

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Class Actions and Judicial Economy

The United States Supreme Court has been asked to determine whether a class may be certified when most of its members never experienced the alleged defect and damages would have to be litigated on a member-by-member basis. Two similar Circuit Court cases presently involve a class of plaintiffs who allege that a defect in washing machines manufactured by Whirlpool Corporation caused moldy odors to develop. The Seventh Circuit in Butler v. Sears Roebuck and Co. overturned the district court’s denial of a class certification based…

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OSHA’s HazCom Rule and Personal Injury Suits

Last year, the Occupational Safety & Health Administration (OSHA) published a rule that modified its Hazard Communication (HazCom) requirements governing how chemical manufacturers, employers, and other organizations convey hazard information to employees. Previously, companies had some discretion over the appearance and wording of these labels. OSHA formulated these amendments to conform to the United Nation’s Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and create a standardized approach regarding this issue because companies often operate in various countries with different laws. However, a…

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Pennsylvania Court Rules That Arbitration Agreement Valid In Nursing Home Case

In Lipshutz v. St. Monica Manor, the Philadelphia Court of Common Pleas recently held that the plaintiff’s survival action regarding her mother’s death from nursing home negligence must be handled via arbitration. The plaintiff had actually signed an agreement with the nursing home, which states such a claim will be handled out of court. Furthermore, the Court referenced the Federal Arbitration Act (FAA), which pre-empts the Pennsylvania Rules of Civil Procedure that requires wrongful death and survival claims to be litigated together.  The Court’s opinion…

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