The primary advantage of alleging a “negligence” claim in a products liability case is that the injured party is NOT required to prove the existence of a defect. Instead, the injured party must prove by a preponderance of the evidence that: (1) the manufacturer owed a duty to the injured party; (2) the manufacturer breached that duty; and (3) the breach was the “proximate cause” of the injuries. The injured plaintiff’s negligence claim may be based upon the manufacturer’s breach of duty with regard to various activities, including the design, manufacture, engineering, inspection, or labeling of the product.

One of the primary advantages of the injured party bringing a breach of warranty claim in a products liability case is that the statute of limitations for breach of warranty actions — even those for personal injury —  is 4 years. Therefore, a claim that is time-barred under the 2 year statute of limitations applicable to personal injury claims may still remain viable under the breach of warranty statute of limitations. There are three types of warranties: (1) express warranty; (2) implied warranty of merchantability; and (3) implied warranty of fitness. Express warranties do not require any specific legal jargon or “magic words,” and can be created by product advertising, labeling, owners’ manuals, the representations of salesmen, and various other ways.  An implied warranty of merchantability permits the injured plaintiff to sue anyone in the distributive chain of the product, and requires that the merchantable goods (1) pass without objection in the trade under the contract description; (2) in the case of fungible goods, are of fair average quality within the description; (3) are fit for the ordinary purposes for which such goods are used; (4) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; (5) are adequately contained, packaged, and labeled as the agreement may require; and (6) conform to the promises or affirmations of fact made on the container or label if any.  An implied warranty of fitness for a particular purpose occurs when the seller at the time of contracting has reason to know: (1) any particular purpose for which goods are required; and (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods. Pursuant to  13 Pa.C.S.A. §2318, both express and implied warranties extend to any natural person who is in the family or household of the buyer or who is a guest in the buyer’s home, if it is reasonable to expect that that person may use, consume, or be affected by the product.

If a seller intentionally conceals a material fact in an effort to deceive the buyer, it may give rise to a viable cause of action for fraud.  In order to prevail on a claim of intentional fraud or misrepresentation, the complainant must establish six elements by clear and convincing evidence: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. A cause of action also may exist under certain circumstances for negligent misrepresentation of a material fact which results in harm to the party acting in justifiable reliance on the misrepresentation. The injured plaintiff, in order to prevail on the claim of negligent misrepresentation of a material fact, must prove: (1) misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with intent to induce another to act on it; and (4) which results in injury to the party acting in justifiable reliance on the misrepresentation. Restatement (Second) Torts §552.

Evidence of “other similar accidents” involving the defective product are admissible in a strict product liability case in order to prove the product’s defectiveness.

Evidence of “no prior accidents” may be offered by a party (typically the defendant) if that party can prove, as a foundational requirement, that it would have known about the prior, substantially similar accident —  such as showing that it maintains a reliable product problem log for monitoring accidents involving its product.

Evidence of “compliance or noncompliance with  industry standards, practices, or regulations” is usually NOT admissible to prove the product’s defectiveness in strict liability cases because such evidence improperly introduces negligence principles into the strict liability case.

Evidence of “subsequent remedial measures” made by the defendant  —  i.e, remedial measures, such as design changes,  taken by the product manufacturer after the product causes injury — is  NOT admissible in products liability cases, with certain exceptions, under Rule 407 of the Pennsylvania Rules of Evidence and Rule 407 of the Federal Rules of Evidence.

Circumstantial evidence that the product “malfunctioned” may be relied upon by the injured party to successfully prove a strict products liability claim when evidence of the precise nature of the product’s defectiveness no longer exists, such as when the product has been destroyed or is otherwise unavailable.

Strict liability cannot be applied to “unavoidably unsafe” products, including prescription drugs and medical devices, when the manufacturer has provided adequate warnings of the product’s potential risks.

Pennsylvania follows the “learned intermediary doctrine” in failure-to-warn cases involving prescription drugs, requiring the manufacturer of a prescription drug known to be dangerous for its intended use to warn the physician, rather than the patient-consumer, about the drug’s risks or potential side effects.

In automotive cases, the concept of “crashworthiness” — also known as “enhanced injury” or “second collision” — requires the injured party to prove that his injuries were aggravated because of a manufacturing or design defect over and above that which would have been otherwise suffered in the accident absent the defect — for example, suffering enhanced injuries in an automobile accident because a seat belt unlatched, or the car’s backrest  collapsed, during a collision.

In products liability cases involving the inhalation of asbestos, the Pennsylvania courts apply the “regularity, frequency and proximity” test and require the  injured party to prove that he or she inhaled asbestos fibers shed by the specific manufacturer’s product.  In other words, the injured party must prove more than the mere presence of asbestos in the workplace, and must present evidence of “the frequency of the use of the product and regularity of [his or her] employment in proximity thereto.”  Linster v. Allied Signal, Inc., 21 A.3d 220, 223 (Pa.Super. 2009)

In general, a consumer injured by a defective product has no recourse against a dissolved corporation that manufactured the product, and a successor corporation does not acquire the liabilities of the transferor corporation merely because of its succession to the transferor’s assets.  However, several exceptions to this rule exist, including the “product line” exception, which imposes liability on a purchasing corporation that utilizes the same manufacturing operation of the transferor’s product line in basically an unaltered  manner. The successor may be held strictly liable for injuries resulting from defects in the product line, even if previously manufactured and distributed by the transferor.

In products liability cases, affirmative defenses to both strict liability and negligence actions include, without limitation,  that: (1) the injured party assumed the risk of injury; (2) the injured party misused the product; (3) the injured party engaged in highly reckless conduct and would have been injured despite any curing of a defect; (4) the injured party unforeseeably modified or altered the product;  (5) the danger associated with the product is open and obvious; (6) the product is safe for use when its warnings are followed; (7) the manufacturer disclaimed implied warranties of merchantability and fitness.