Products Liability Prof Blog

Third Circuit Certifies Strict Liability Bystander Recovery Case to Pennsylvania Supreme Court

Berrier v. Simplicity Manufacturing, Inc., No: 05-3621 (3d Cir. Jan. 17, 2008), arose out of injuries sustained by a four-year-old Ashley Berrier when her grandfather inadvertently backed over her foot while mowing his lawn with a riding mower manufactured by the defendant.  Her foot was ultimately amputated as a result of the accident.  Her parents sued Simplicity on their own behalf and as her parents and guardians, alleging strict liability and negligence claims based design defect and inadequate warning theories.   The case was filed in the Pennsylvania Court of Common Pleas and removed to the United States District Court for the Eastern District of Pennsylvania.  Simplicity moved for summary judgment on both claims.  In granting the defendant’s motion for summary judgment, the trial court in the case expressed “grave doubts as to the logic of preventing an innocent bystander from recovering for injuries caused by an allegedly defective product, particularly when the American Law Institute, through the Restatement (Third) of Torts:  Product liability, has retreated from the very genesis of the ‘intended user’ doctrine.”   The court nontheless felt constrained to follow Pennsylvania law in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) (holding that a child who started a house fire with a butane lighter was not an intended user), which limits liability under a strict liability theory to intended users of a product.  Berrier v. Simplicity Corp., 413 F.Supp.2d 431, 432 (E.D. Pa. 2005).

In its review of Pennsylvania law the Third circuit was “persuaded that the proper scope of strict liability remains unresolved where a bystander, who is neither a ‘user’ nor a ‘consumer’ of an allegedly defective product, is injured when that product is being used as intended.”   The court certified the following question to the Pennsylvania Supreme Court:

Whether, under Pennsylvania law a plaintiff minor child may pursue a strict liability claim for injuries caused by a riding lawnmower, where that child is neither an intended user nor consumer of the mower.    See Pennsylvania Department of General Services v. United States mineral Products Co., 899 A.2d 590 (Pa. 2006); Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003); Riley v. Warren Manufacturing, 688 A.2d 221 (Pa. Super. 1997).

MKS

Tobacco Control Legal Consortium Newsletter Overview of Light Cigarette Lawsuits

The latest issue of Legal Update, the Tobacco Control Legal Consortium newsletter, is now available at www.tclconline.org. The issue includes the Legal Consortium’s most recent law synopsis, Light Cigarette Lawsuits in the United States: 2007, an overview of light cigarette litigation and its mixed record in state and federal courts to date.  The synopsis was written by attorneys at the Consortium's Massachusetts affiliate, the Public Health Advocacy Institute at Northeastern University School of Law. 

MKS

Teflon Paste Failure-to-Warn Claim Preempted by Medical Device Amendments

In yet another case, a court has ruled that a failure to warn claim regarding a Class III medical device is preempted by the FDA's approval of the product for sale.  In Mathis v. E.I. dupont De Nemours & Co., W.D. La., No. 06-0825 (1/16/08), the plaintiff claimed that she was injured by a Teflon paste used to treat her vocal chords paralyzed because of earlier thyroid surgery.  The product manufacturer moved for summary judgment arguing that Mathis' failure to warn claim was preempted.  In granting the defendant's motion, the court noted that the FDA had imposed device-specific requirements on the product, including requirements for the information to be included in the product's labeling and warnings, and that the warnings could not be modified without FDA approval.  To say that the warnings were inadequate or that additional or different warnings were required under state law would be imposing state requirements "different from or in addition to" those imposed by the FDA and thus, the court concluded, were preempted under 21 U.S.C. section 360k(a) of the Medical Device Amendments to the Food, Drug & Cosmetics Act.

JDP