In Tincher v. Omega Flex, Inc., 104 A. 2d 328 (Pa. 2014), the Pennsylvania Supreme Court cast aside more than 35 years of precedent when it reformulated the standards determining the circumstances under which a product is considered defective within the context of the Restatement (Second) of Torts, Section 402 (A). From the court’s decision in Azzarello v. Black Bros. Co., 391 A. 2d 1020 (Pa. 1978) until Tincher, a product defect existed if the product lacked any feature necessary for it to safely perform its intended function or had any condition that rendered it unsafe for its intended use. Tincher rejected these criteria, holding instead that a plaintiff could prove the existence of a product defect by showing that (1) the danger posed by the product is unknowable and unacceptable to the ordinary consumer or (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.
Continue Reading Tincher Returns to Blow Away Some of Its Own Smoke

In this third and last installment of our three-part series examining the type of deposition questioning that can derail your opponent’s expert and set up a successful Daubert challenge, we will look at Daubert’s insistence that the expert’s opinions be based on “reliable methodology” before opinions can be presented to the jury.

What exactly does a reliable methodology under Daubert mean? Essentially, it requires that the expert’s opinions be based on information gathered in the same manner as a scientist would undertake before he or she reaches a conclusion about the design of the product at issue. The distinction is between using sound scientific procedures as opposed to unsupported speculation to develop a hypothesis, analyze and test against it, and reach a conclusion.

Continue Reading Cross-Examining the Expert Witness in a PL Case Part III: Challenging the Methodology

In my September 2016 blog post, The Impact of the Smart Home Revolution on Product Liability and Fire Cause Determinations, I forecast that “dumb products made smart by connecting to the internet will present a new layer of complexity when a failure occurs.” When a product fails and causes property damage or bodily injury, experts are frequently tasked with assessing the root cause for the failure, which can lead to a claim or litigation against a potentially responsible third party. In the age of the Internet of Things (IoT) will experts who have knowledge, skill and training sufficient to address potential root cause failures with a “dumb” version of a product have the requisite expertise to address the root cause failure with a “smart” version of the product − and withstand the challenge to their qualifications and methodology in court? The courts are beginning to grapple with this.
Continue Reading Expert Opinions in the Age of the Internet of Things: “You’re Gonna Need a Bigger Boat”

Previously on this blog, Wilson Elser attorneys have written several posts about 3D printing technology and the law. We have predicted that this new technology has the potential to change the landscape of product liability law. This is happening, and especially so with respect to implantable medical devices, which are revolutionizing the health care industry with their unlimited potential for customization.

While there are still no published opinions for product liability cases involving 3D printed medical implants (or any 3D printed medical devices for that matter), we recently had the opportunity to defend a manufacturer client on product liability and negligence causes of action asserted against its 3D printed, custom-made orthopedic prosthesis. We obtained summary judgment for the client.

Continue Reading 3D Printed Medical Implants: Should Laws and Regulations Be Revolutionized to Address This Revolutionary Customized Technology?

In the first part of this series, we examined how effective deposition questioning about an expert’s education, training and experience can ultimately call into serious question the expert’s qualifications to serve as an expert witness at trial and survive a subsequent Daubert motion. We examined how some experts, despite their seemingly extensive and impressive credentials, may actually have no experience in the relevant field or may be exaggerating the depth of their past work experience. This may ultimately lead to the Court finding that the expert is offering opinions in an area about which they know nothing.
Continue Reading Cross-Examining the Expert Witness in a PL Case Part II: What Are the Relevant Facts & Data?