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.

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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.


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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.

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Background
In a service-based economy, many industrial and consumer products are manufactured and sold through trademark licensing arrangements. Under these types of contractual agreements, the owner of the trademark licenses its brand name or mark to another company in exchange for a licensing fee. The authorized user of the trademark then has a contractual right to manufacture and sell the goods bearing the trademark. However, in some circumstances, the mere act of licensing the trademark to a manufacturer of a product for a fee can expose the licensor to a product liability claim under the Apparent Manufacturers Doctrine (AMD).

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ventilator-operating-room136369331TSI am writing to report about a recent dismissal of a manufacturing defect claim made against a medical device manufacturer in the USDC for the Eastern District of Pennsylvania. This decision is favorable to our clients that are involved in defending medical devices. We believe this case may dissuade plaintiffs from filing cases against medical device manufacturers in Pennsylvania in the future, at least in federal court.

It has been a long-standing principle in Pennsylvania that the doctrine of strict products liability does not apply in cases involving prescription drugs. This principle was recently affirmed by the Supreme Court of Pennsylvania in the case of Lance v. Wyeth, 15 A3d 434 (PA 2014), which was decided earlier this year. As was stated in Lance, for policy reasons strict products liability claims are barred against manufacturers of prescription drugs under Pennsylvania law. However, the Supreme Court of Pennsylvania has yet to rule whether this ban also applied to prescription medical devices. Before the decision in Lance was made earlier this year, the federal courts in Pennsylvania had ruled that manufacturing defect claims were permissible in cases involving prescription medical devices.


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