IN THE NEWS: Attorney Claudine Homolash Quoted by The Legal Intelligencer on PA Supreme Court Ruling

The Legal Intelligencer/American Lawyer Media

Plaintiffs Bar Slams Justices' Products Liability Ruling

In the wake of the state Supreme Court's ruling that courts must consider a product's multiple uses when assessing that product's risk, some plaintiffs attorneys have criticized the decision, claiming it gives defendants in products liability cases an unfair advantage.

"I think it's a blow to plaintiffs, personally," Claudine Q. Homolash, of Sheller P.C., said. "It makes it more difficult for plaintiffs to bring a case."

Alan M. Feldman of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig agreed, calling the majority's decision "nearly incomprehensible."

"All of a sudden now there's a new burden that plaintiffs potentially need to meet and that is to explain not only that the product has a defective design and that it was the cause of the accident but that other potential uses of the product for which it can be used safely are insufficient to outweigh the dangerous application of the product," he said. "I don't understand how the plaintiff could meet that burden."

In March, the justices ruled that conducting a risk-utility analysis of an allegedly defective product with more than one intended use should involve all of those uses, rather than just the one that allegedly resulted in harm.

The court was unanimous in the result, upholding the Superior Court's reversal of a $5 million Allegheny County verdict.

Writing for the majority in Beard v. Johnson & Johnson, Justice Thomas G. Saylor, joined by Chief Justice Ronald D. Castille along with Justices J. Michael Eakin and Joan Orie Melvin, said the court could not limit a lower court's risk-utility analysis of a design defect to one particular intended use.

"For better or worse, this court's decisions have relegated our trial courts in the unenviable position of 'social philosopher' and 'risk-utility economic analyst,'" Saylor said in the opinion. "This having been done — and as the present case does not provide an appropriate opportunity for reconsideration of such assignment — we decline to require the trial courts to put on blinders. It should be enough to say that a product's utility obviously may be enhanced by multi-functionality, so that it would be imprudent to deny trial courts the ability to assign some weight to this factor in assessing product design."

But Homolash said a medical device manufacturer will often market a product to a physician based on the use that's most applicable to that physician's specialty.

"I feel like if you're going to market a product for an intended use and if you're going to make a profit from that intended use, you should be held accountable," she said. "That's why the risk-beneft analysis should be based on the use at issue and not all intended uses."

A risk-benefit analysis that considers all of a product's uses is essentially "comparing apples and oranges," she added.

Feldman offered the hypothetical of a chainsaw for which the manufacturer says the intended uses are cutting down trees, clearing brush and carving turkeys.

"One of their proposed uses is crazy and unsafe; you shouldn't use a chainsaw to carve turkeys," Feldman said. "Should a court not allow this case to go forward? Why shouldn't a plaintiff be able to limit a case to a single intended use?"

But Kenneth A. Murphy, vice chair of the products liability and mass tort practice group at Drinker Biddle & Reath, said the requirement that a court consider all of a product's uses in its risk-utility analysis "can cut both ways."

"If there are other uses that are known uses, then there may be an attempt to create a theory of liability or duty associated with the knowledge of those other known uses, so I can see and, quite frankly, have seen instances where other uses are something the plaintiffs side would want to take advantage of," he said.

Not all plaintiffs attorneys The Legal spoke to took issue with the ruling either.

Mark LeWinter of Raynes McCarty, for example, said he felt a "global" risk-utility analysis was necessary in products liability cases.

"The holding in this case doesn't concern me a great deal," he said. "I think a risk-utility analysis can't be performed in a vacuum."

Robert Pierce of Robert Pierce & Associates, meanwhile, said he thinks the Beard ruling will "only be applied in a narrow scope."

"I do not believe this opinion will greatly impact plaintiffs' ability to pursue products liability and strict liability theories," he said.

In Beard, the state Superior Court ruled 2-1 to reverse an Allegheny County jury's $5 million award to the estate of a woman who died of sepsis when the staples she received during bariatric surgery did not close properly.

According to the Superior Court's per curiam majority opinion filed Oct. 23, 2009, plaintiff Jeffrey K. Beard, as administrator of the estate of Sandra L. Selepec, claimed that the area Selepec's surgeon stapled was too thick for the stapling device, known as an endocutter, and that the surgeon could not determine its thickness.

The jury agreed but the Superior Court found that the endocutter, which is manufactured by defendant Ethicon Endo-Surgery Inc., a subsidiary of defendant Johnson & Johnson, was not unreasonably unsafe and that there was no evidence to suggest that a measuring device or locking device could be placed on the stapler without hindering its ability to be used in laparoscopic surgery.

"If we were to maintain the position that this device is unreasonably dangerous because it had no locking or measuring capabilities, then no laparoscopic bypass surgery could ever be performed," the Superior Court said in a per curiam majority opinion.

The Superior Court concluded that while there was "no question" the endocutter caused Selepec's death, the absence of a design defect necessitated a defense verdict in this case.

Saylor acknowledged that it is difficult for plaintiffs in Pennsylvania to prove a product defect, but noted that "there is much at stake in the condemnation of a product's design, above and beyond any individual damages award or awards, including the impact on product costs and design innovation."

Saylor added that the court continues to "recognize the continuing state of disrepair in the arena of Pennsylvania strict-liability design defect law."

Feldman, however, took issue with this statement as well.

"Justice Saylor has repeatedly injected the notion that there's something wrong with the current state of Pennsylvania law, but I think he has done as much to make the state of the law unclear and ambiguous as anyone," he said.

Justice Max Baer filed a concurring opinion in Beard, which Justices Debra Todd and Seamus P. McCaffery joined, in an attempt to "distance" himself from Saylor's rejection of Section 402A of the Restatement (Second) of Torts , under which risk-utility analyses are performed by judges, in favor of the Restatement (Third) of Torts: Products Liability , which would make risk-utility analyses the responsibility of juries.

Saylor said in the majority opinion, "It may be cogently argued that risk-utility balancing is more legitimately assigned to a jury."

Baer, however, said he would express no opinion on the matter until the Supreme Court is faced with a case on the issue.

"I recognize that the U.S. Court of Appeals for the Third Circuit utilized my joinder of similar language in a footnote of a concurring and dissenting opinion of former-Justice [Sandra Schultz] Newman to predict that I would support the adoption of the Restatement Third ," Baer said, but added that the court had "misconstrued my joinder of Justice Newman's footnote as an inclination on my part to adopt the Restatement Third ."

But Feldman said the majority in Beard still refused to expressly adopt the Restatement Third and there continues to be an "incredible dichotomy" between federal and state courts on the issue.

"I don't understand how the Third Circuit can adhere to a prediction that has been fundamentally undermined by the continued adherence to the Second Restatement by the Pennsylvania Supreme Court," he said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

Plaintiffs Bar Slams Justices' Products Liability Ruling, The Legal Intelligencer, April 17, 2012