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Pennsylvania Products Liability

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Bradley D. Remick


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A comprehensive review of Pennsylvania products liability law.

This area of law has undergone dramatic changes in recent years with the federal and state courts in Pennsylvania split between the application of the Second and Third Restatements. Pennsylvania Products Liability offers analysis from the point of view of a trial attorney practicing in this increasingly complex area. Includes a chapter on the history and holding of Tincher  v. Omega Flax, Inc.  and provides guidance for practitioners on new standards.

Content includes:

  • The Rise and Fall of The Second Restatement of Torts
  • The Rise of Restatement (Third) of Torts
  • The Restatements in Practice
  • Strict Liability Concepts
  • Breach of Warranty
  • Negligence
  • Manufacturing and Design Defects
  • Warning Defects
  • Damages
  • Punitive Damages
  • Indemnity, Contribution and Apportionment Damages
  • Jurisdiction, Venue and Related Principles
  • Discovery Process
  • Evidence in Products Liability Litigation
  • Expert Evidence and Products Liability
  • Automotive Product Liability Law
  • Federal Preemption and Products Liability Litigation
  • Food, Drugs and Medical Devices
  • Recalls
  • History of Products Liability Law



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  • Brand: The Legal Intelligencer
  • Product Type: Books
  • Page Count: 616
  • ISBN: 978-1-62881-424-8
  • Pub#/SKU#: PLIAB18
  • Pub Date: 11/24/2017

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  • Bradley D. Remick
Bradley D. Remick, a Shareholder at Marshall Dennehey Warner Coleman & Goggin, concentrates his practice on the defense of complex product liability cases for small, medium and large (Fortune 500) manufacturing companies and their distributors. He has defended the manufacturers of tools, electrical components, scaffolding and lifts, tires, paint, automatic doors, machinery, backhoes and other heavy industrial equipment. He has also defended manufacturers of complex heat exchangers, chemical pumping systems and other industrial systems. 
Brad is national counsel to a company that designs and manufactures thermal fluid heaters and boilers. His background in firefighting has given him additional insight into the defense of cases on behalf of manufacturers of electrical components, electricians and others alleged to have started fires.
Brad is a supervising attorney in the firm's Product Liability Practice Group. As such, he fields questions from attorneys throughout the firm regarding substantive legal issues relating to product liability. Brad also manages junior associates in the development of their practices. 
Brad is also a nationally certified fire fighter, who serves the Penn Wynne/Overbrook Hills Fire Company (Lower Merion Fire Department), and holds over 25 different certifications. 
Brad received his J.D. from Villanova University School of Law and his B.A. from Kenyon College.


CHAPTER 1
HISTORY OF PRODUCT LIABILITY LAW
1-1 INTRODUCTION
1-1:1 The Doctrine of Strict Product Liability
1-1:2 The Role of the American Law Institute and the Restatements
1-2 PENNSYLVANIA JUMPS ON THE BANDWAGON
1-2:1 Pennsylvania Law Gets Muddier
1-2:2 Pennsylvania, Still Stuck
1-3 TINCHER – WILL PENNSYLVANIA FINALLY GET IT RIGHT?
1-4 NOTABLE DIFFERENCES BETWEEN THE RESTATEMENTS

CHAPTER 2
THE RISE AND FALL OF THE SECOND RESTATEMENT OF TORTS
2-1 ADOPTION OF RESTATEMENT (SECOND) OF TORTS
2-2 IMPACT OF ADOPTING RESTATEMENT SECOND
2-2:1 First Step Toward Deviation: Berkebile v. Brantley Helicopter Corporation
2-2:2 Two-Part Strict Liability Analysis: Azzarello v. Black Brothers Company Incorporated
2-3 AMBIGUITIES AND INCONSISTENCIES – POST BERKEBILE AND AZZARELLO FALLOUT

CHAPTER 3
THE RISE OF RESTATEMENT (THIRD) OF TORTS
3-1 A BRIEF OVERVIEW OF THE RESTATEMENT (THIRD) OF TORTS
3-2 THE THIRD RESTATEMENT MAKES ITS WAY TO PENNSYLVANIA
3-2:1 Justice Saylor and the Restatement (Third) of Torts
3-2:2 The Third Circuit's Potential False Prophecy.
3-2:3 Pennsylvania Today
3-3 RESPONSES TO RESTATEMENT (THIRD) IN OTHER JURISDICTIONS

CHAPTER 4
THE RESTATEMENTS IN PRACTICE
4-1 RISK-UTILITY ANALYSIS UNDER THE RESTATEMENT (SECOND) OF TORTS
4-2 RISK-UTILITY ANALYSIS UNDER THE RESTATEMENT (THIRD) OF TORTS.
4-3 APPORTIONING ENHANCEMENT ON DEFENDANT

CHAPTER 5
STRICT LIABILITY CONCEPTS
5-1 INTRODUCTION
5-2 PENNSYLVANIA'S STRICT LIABILITY THEORY OF RECOVERY
5-3 CATEGORIES OF PRODUCT DEFECTS
5-3:1 Design Defects
5-3:2 Manufacturing Defects
5-3:3 Inadequate Warnings
5-3:4 Unavoidably Unsafe Products
5-4 DAMAGES
5-4:1 Economic Loss Doctrine
5-4:2 Emotional Distress
5-4:3 Punitive Damages
5-5 DEFENSES
5-5:1 Contributory Negligence/ Comparative Fault
5-5:2 Assumption of the Risk
5-5:3 Unintended Use/Misuse/Subsequent Changes
5-5:4 Statute of Limitations
5-5:5 Sophisticated User Doctrine

CHAPTER 6
BREACH OF WARRANTY
6-1 BREACH OF WARRANTY – GENERALLY
6-2 BREACH OF EXPRESS WARRANTY
6-3 BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
6-4 BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
6-5 DEFENSES
6-5:1 Privity
6-5:2 Notice of Breach of Warranty
6-5:3 Disclaimer of Warranties
6-6 MAGNUSON-MOSS WARRANTY – FEDERAL TRADE COMMISSION IMPROVEMENT ACT
6-6:1 Introduction and the Rules Governing the Contents of Warranties
6-6:2 Standards for Written Warranties
6-6:3 Implied Warranties
6-6:4 Remedies under the Act

CHAPTER 7
NEGLIGENCE
7-1 INTRODUCTION TO NEGLIGENCE
7-1:1 Elements of a Negligence Claim
7-1:2 Scope of Applicability of Negligence in Products Liability
7-1:2.1 Counsel Should Include Negligence Claim in Many Situations
7-1:2.2 Standard of Care for Products Liability Defendants
7-1:2.3 Negligence and the Risk-Utility Test
7-1:3 Plaintiff Must Establish that Defendant Owed a Duty
7-1:3.1 Existence of a Duty as a Question of Law
7-1:3.2 Foreseeability in the Duty Analysis
7-1:3.3 The Relationship of Duty to Product's Design, Manufacture, or Warning
7-1:4"Unreasonable Risk of Harm to Others"
7-2 DEFENSES TO NEGLIGENCE
7-2:1 Contributory Negligence and Comparative Negligence
7-2:2 Assumption of the Risk in Negligence Cases
7-2:2.1 Inherent Harms in Using 19th Century Doctrine
7-2:2.2 Varied Forms of Assumption of the Risk
7-2:2.2a Assumption of Risk May Be Express or Implied
7-2:2.2b Primary and Secondary Implied Assumption of Risk
7-2:2.3 Jurisdictional Applications of Assumption of the Risk
7-2:2.3a The Firefighter's Rule
7-2:2.3b Assumption of Risk in Products Liability Cases
7-3 RES IPSA LOQUITUR
7-4 LITIGATING NEGLIGENCE AND HANDGUNS

CHAPTER 8
MANUFACTURING AND DESIGN DEFECTS
8-1 INTRODUCTION
8-2 MANUFACTURING FLAWS IN PRODUCTS LIABILITY LITIGATION
8-2:1 Introduction to Manufacturing Flaws
8-2:2 Key Elements of a Negligent Manufacture Claim
8-2:2.1 Proving that the Manufacturer Breached the Standard of Care
8-2:2.2 Failure to Perform or Inadequate Performance of Required Testing
8-2:3 Manufacturing Defects and Strict Liability
8-2:3.1 Negligence Principles Inapplicable to Manufacturing Defect Claims
8-2:3.2 "Manufacturing Defect" Defined
8-2:3.3 Vast Majority of Products May be Subject to Manufacturing Defect
8-2:3.4 Proof of a Manufacturing Defect in Strict Liability Claims
8-2:3.5 Manufacturing Defects in Older Products
8-2:4 Proving that the Manufacturing Defect caused the Injury
8-3 DESIGN FLAWS IN PRODUCTS LIABILITY LITIGATION
8-3:1 Design Flaws Generally
8-3:1.1 Factors to Consider in Product Design
8-3:1.2 Judicial Concern About Repercussions of Design Defect
8-3:1.3 Design Defect as Most Common Products Liability Claim
8-3:1.4 Idiosyncratic Consumers
8-3:1.5 Admissibility of Post-Distribution Evidence to Prove Design Defect
8-3:2 Identifying a Negligent Design Claim
8-3:2.1 Elements of a Negligent Design Claim
8-3:2.2 History of Negligent Design Claims
8-3:2.3 Breach of the Duty of Care Regarding Product Design
8-3:3 Design Defects in Strict Liability
8-3:3.1 No Uniformity Among States in Determining Whether Design is Defective
8-3:3.2 Absence of Safety Device as Defect
8-3:3.3 Product Need Not Be Accident-Proof; Causation
8-3:4 Design Defects and Risk-Utility Analysis
8-3:4.1 Use of Negligence Concepts in Risk-Utility Analysis
8-3:4.2 Wade Factors
8-3:4.3 Additional Factors Used in Risk-Utility Analysis
8-4 SAFER, FEASIBLE ALTERNATIVE DESIGNS IN DESIGN CASES

CHAPTER 9
WARNING DEFECTS
9-1 INTRODUCTION TO WARNING DEFECT CLAIMS – THE NATURE OF WARNING CLAIMS
9-1:1 Warnings as Independent Basis for Products Liability
9-1:2 Warnings vs. Instructions
9-1:3 Effects of Limitless Warning Claims
9-1:4 General Rule: Duty to Warn is Limited to One's Own Products
9-1:4.1 Disadvantage to Asbestos Victims
9-1:4.2 Respirator Manufacturers' Liability for Asbestos Injuries
9-2 WARNINGS AND THE NEGLIGENCE-STRICT LIABILITY DILEMMA
9-2:1 Strict Liability Warning Claims vs. Claims Based on Negligence
9-2:2 Knowledge Requirements for Warning Claims Based on Negligence
9-2:3 Knowledge Requirement for Strict Liability Warning Claims
9-3 SUFFICIENCY OF WARNINGS
9-3:1 Satisfying the Sufficiency Requirement
9-3:1.1 Warning Must be Adequate in Form and Content
9-3:1.2 Adequacy of Warning as a Question for the Jury
9-3:1.3 Adequacy of Warning as a Question of Law
9-4 WARNINGS AND ESTABLISHING CAUSATION
9-4:1 Burden of Proof
9-4:1.1 Proving That Inadequate Warning Caused Injury
9-4:1.2 No Causation When Product User Was Already Aware of Danger
9-4:1.3 Overcoming Plaintiff's Failure to Read Warning on Causation

CHAPTER 10
DAMAGES
10-1 INTRODUCTION
10-2 OVERVIEW OF COMPENSATORY DAMAGES IN PRODUCTS LIABILITY ACTIONS
10-2:1 Damages for Medical Expenses
10-2:2 Damages for Death
10-2:2.1 Wrongful Death
10-2:2.2 Survival
10-2:3 Loss of Consortium
10-2:4 Physical Impairment
10-2:5 Disfigurement
10-2:6 Wrongful Life
10-2:7 Loss of Earning Capacity

CHAPTER 11
PUNITIVE DAMAGES
11-1 OVERVIEW
11-2 STATUTE OF LIMITATIONS AND PUNITIVE DAMAGES
11-2:1 When a Cause of Action Accrues
11-2:2 Introduction of New Claims
11-2:3 Exceptions
11-2:3.1 Discovery Rule
11-2:3.2 Fraudulent Concealment
11-3 Considerations Regarding the Imposition of Punitive Damages

CHAPTER 12
INDEMNITY, CONTRIBUTION & APPORTIONMENT
12-1 INTRODUCTION – ALLOCATION OF FAULT
12-2 INDEMNITY
12-2:1 Impact of Settlement on a Claim for Indemnity
12-3 CONTRIBUTION
12-3:1 Impact of Settlement on Contribution Claims
12-4 APPORTIONMENT OF LIABILITY BETWEEN JOINT TORTFEASORS

CHAPTER 13
JURISDICTION, VENUE AND RELATED PRINCIPLES
13-1“GENERAL JURISDICTION" DISTINGUISHED FROM "SPECIFIC JURISDICTION”
13-1:1 Long-Arm Statutes Provide for Specific Jurisdiction
13-1:1.1 The World-Wide  Breakthrough
13-1:1.2 Crucial Principles of World-Wide
13-1:2 Long-Arm Statutes More Restrictive Than the Due Process Clause
13-1:3 Asahi Metal Industry Co. v. Superior Court
13-1:3.1 The Asahi Holding
13-1:3.2 The Three Asahi Opinions
13-1:3.3 The Third Circuit Has Not Yet Chosen Among Asahi Tests
13-1:3.4 Internet’s Effect on Personal Jurisdiction
13-1:3.5 J. McIntyre Machinery, Ltd. v. Nicastro: Plurality Reverts to "Purposeful Availment" Standard
13-1:3.6 Evaluating the Viability of the Stream-of-Commerce Theory Post-Nicastro
13-1:3.7 Third Circuit Continues to Apply Both Asahi Standards
13-2 ESTABLISHING GENERAL JURISDICTION OVER FOREIGN CORPORATIONS
13-2:1 Proving “Continuous and Systematic” Contacts
13-2:2 Goodyear Dunlop Tires Operations v. Brown: "Stream-of-Commerce" Theory Does Not Apply in General Jurisdiction Analysis
13-3 VENUE AND FORUM NON CONVENIENS
13-3:1 Venue and Jurisdiction Distinguished
13-3:2 Transfer of Venue; 28 U.S.C.S. § 1404(a)
13-3:3 State Venue Statutes
13-3:4 Court May Dismiss Case in Favor of Suitable Alternative Forum
13-3:5 Forum Non Conveniens in State Court

CHAPTER 14
DISCOVERY PROCESS
14-1 DISCOVERY PROCESS
14-1:1 Overview of Discovery in Products Liability Litigation
14-1:1.1 Nature of Discovery Varies from Court to Court
14-1:1.2 Non-Expert Discovery of Plaintiff is Relatively Straightforward
14-1:1.3 Plaintiff's Non-Expert Discovery of Defendant is Far Reaching
14-1:1.3a Plaintiffs Seeking to Prove Design Defect are Entitled to Broader Scope of “Relevant” Information
14-1:1.3b Identifying Overly Broad or Unduly Burdensome Discovery Requests
14-1:1.3c General Rule: Party Resisting Discovery Bears the Burden of Explaining Propriety of Objections
4-1:1.3d Both Parties Should Prepare to Compromise
14-1:1.4 Plaintiffs and Defendants: Similar Approach to Expert Discovery
14-1:1.5 Court May Dismiss Case as Discovery Sanction
14-1:22000 Amendments to Federal Rules of Civil Procedure
14-2 DISCOVERY DEVICES IN PRODUCTS LIABILITY LITIGATION
14-2:1 Laws of Forum Court Govern Discovery
14-2:2 Interrogatories
14-2:3 Requests for Production of Documents and Things
14-2:4 Requests for Admissions
14-2:5 Depositions
14-3 DISCOVERY OF EXPERT WITNESSES
14-3:1 Discovery of Expert Witnesses – In General
14-3:2 Expert Discovery Pursuant to Federal Rules
14-3:2.1 Disclosures
14-3:2.2 Trial Preparation
14-4 LIMITS ON DISCOVERY
14-4:1 Use of Privileges and Other Devices to Protect Documents from Disclosures
14-4:2 Trade Secrets
14-4:3 Attorney-Client Privilege
14-5 DISCOVERY FROM DEFENDANTS AND FOREIGN NON-PARTIES
14-5:1 Generally
14-5:2 Hague Evidence Convention – Background
14-5:3 Terms of the Hague Evidence Convention
14-5:4 Application of the Hague Evidence Convention by American Court from Ratification through Aerospatiale
14-5:5 Discovery From Foreign Nationals Domiciled in Countries That Have Not Signed the Hague Evidence Convention
14-6 FREEDOM OF INFORMATION ACT (FOIA)
14-6:1 Generally
14-6:2 Materials Subject to the Act
14-6:3 Nine Exemptions
14-6:3.1 Generally
14-6:3.2 National Security and Foreign Policy Exemption
14-6:3.3 Internal Personnel Rules and Practices Exemption
14-6:3.4 Statutory Exemptions
14-6:3.5 Trade Secrets Exemption
14-6:3.6 Inter-Agency Memorandum Exemption
14-6:3.7 Personnel and Medical Records Exemption
14-6:3.8 Law Enforcement Records Exemption
14-6:3.9 Financial Institution Exemption
14-6:3.10 Geological and Geophysical Information Exemption
14-6:4 Procedure under FOIA

CHAPTER 15
EVIDENCE IN PRODUCTS LIABILITY LITIGATION
15-1 OVERVIEW OF EVIDENCE IN PRODUCTS LIABILITY LITIGATION
15-2 EVIDENCE OF OTHER OCCURRENCES OR ACCIDENTS
15-2:1 Evidence of Prior Occurrences or Accidents
15-2:1.1 Evidence of Prior Occurrences is Often Admissible
15-1:1.2 Requirement for Substantial Similarity
15-1:1.3 Trial Judge's Discretion in Determining Whether Prior Occurrence is Substantially Similar
15-1:1.4 Exception to Substantial Similarity Requirement: When Evidence is Offered to Explain Scientific or Physical Principles
15-1:1.5 Grounds for Admission of Substantially Similar Occurrences
15-1:1.6 Admissibility of Substantially Similar Civil Lawsuits
15-1:1.7 Admissibility of Accident Evidence Involving Similar Product Produced by Entity Other Than Defendant
15-1:1.8 Admissibility of Prior Accidents Appearing in Governmental Reports
15-2:2 Evidence of the Absence of Other Occurrences or Accidents
15-2:3 Evidence of Subsequent Occurrences or Accidents
15-3 EVIDENCE OF STATE-OF-THE-ART
15-3:1 State-of-the-Art Defined
15-3:2 Admissibility of State-of-the-Art Evidence in Claims Based on Negligence
15-3:3 Admissibility of State-of-the-Art Evidence in Claims Based on Strict Liability
15-3:3.1 Inconsistent Approaches to Admissibility
15-3:3.2 State-of-the-Art Evidence and Common Law Strict Liability Cases
15-4 EVIDENCE OF TRADE CUSTOMS, INDUSTRY PRACTICES, AND TECHNICAL STANDARDS
15-4 1 General Rule: Evidence of Trade Customs, Industry Practices, and Technical Standards is Admissible
15-5 EVIDENCE OF STATUTES, ADMINISTRATIVE REGULATIONS, AND ADMINISTRATIVE CODES
15-6 EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES
15-6:1 Introduction of Remedial Measures Evidence
15-6:1.1 Repair Doctrine Becomes Operative after Triggering “Event”
15-6:1.2 Examples of Post-Accident Modifications
15-6:1.3 Applicability of Repair Doctrine to Strict Liability Actions
15-6:1.4 Repairs Doctrine Applies to Warning, Manufacturing, and Design Changes
15-6:1.5 Exceptions to Repair Doctrine
15-6:1.6 Admissibility of Subsequent Remedial Measures to Impeach
15-6:1.7 Admissibility of Subsequent Remedial Measures on the Issue of Feasibility
15-6:2 Subsequent Remedial Measures in the Federal Courts
15-6:2.1 Congress Revised Fed. R. Evid. 407 in 1997
15-6:2.1a The Original Rule Was Promulgated Because Subsequent Conduct Was Not an Admission of Liability
15-6:2.1b The Original Rule Was Also Promulgated Because of Public Policy
15-6:2.1c Subsequent Remedial Measures May Be Introduced to Prove Ownership
15-6:2.2 Products Liability Cases
15-6:2.2a Federal Courts Exclude Subsequent Remedial Measures in Negligence Cases
15-6:2.2b Defendant Cannot Introduce Subsequent Remedial Measures Taken By a Plaintiff
15-6:2.2c Evidence of Subsequent Remedial Measures Not Admissible in Strict Liability Cases
15-6:2.2d Party’s Motive for Making the Subsequent Remedial Measure is Irrelevant
15-6:2.2e Expert May Be Permitted to Base Testimony on Subsequent Remedial Measure
15-6:2.3 Post-Manufacture, Pre-Accident Remedial Measures Fed. R. Evid. 407 Applies Only to Remedial Measures Taken After Event
15-6:2.3a Cases illustrating inapplicability of Fed. R. Evid. 407 to Measures Taken Before Event
15-6:2.4 Remedial Measures Taken by Third Persons Rule 407 Only Applies to Actions Taken by Defendant
15-6:2.4a Rule 407 Does Not Apply to Remedial Measures Taken by Third Parties
15-6:2.5 “Superior Authority” Exception
15-6:2.6 Fed. R. Evid. 407 Does Not Require Exclusion of Evidence of Defendant’s Investigation into Accident
15-7 DEMONSTRATIVE EVIDENCE
15-7:1 Demonstrative Evidence: A Ubiquitous Aspect of Product Litigation
15-7:1.1 Authentication of Demonstrative Evidence; Fed. R. Evid. 901, 902
15-7:1.2 Substantial Similarity
15-7:1.2a Examples of Cases Discussing Substantial Similarity Requirement
15-7:1.3 Exclusion of Demonstrative Evidence on Grounds of Prejudice, Confusion, or Waste of Time
15-7:1.3a Fed. R. Evid. 403 Recognizes Discretionary Role of Trial Judge
15-7:1.3b Exclusion on Grounds of Unfair Prejudice
15-7:1.3b1 Cases Discussing Prejudicial Effect of Demonstrative Evidence
15-7:1.3c Exclusion on Grounds of Being Confusing and Misleading
15-7:1.3c1 Distinguishing Between Confusion and Misleading Evidence
15-7:1.3d Exclusion on Grounds of Being Cumulative and Time Consuming
15-7:1.3d1 Example of Demonstrative Evidence Excluded Because of Undue Delay, Waste of Time, or Needless Presentation of Cumulative Evidence
15-7:1.4 Conditional Admissibility; Limiting Instructions
15-7:1.4a Examples of Limiting Instructions
15-7:2 Demonstrative Evidence in Products Liability
15-7:2.1 Actual, Allegedly Defective Product
15-7:2.1a Admissibility of Product Following Significant Alterations 15-7:2.1a1Situations Where an Altered Product is Admitted
15-7:2.1b Spoliation of Evidence
15-7:2.1b1 Defective Product is Frequently Destroyed, Damaged, or Lost
15-7:2.1b2 Protective Orders and Sanctions as Remedies for Spoliation
15-7:2.1b3 Spoliation of Evidence is Not a Separate Tort in Pennsylvania

CHAPTER 16
EXPERT EVIDENCE AND PRODUCTS LIABILITY
16-1 INTRODUCTION TO EXPERT TESTIMONY
16-1:1 Experts Play Crucial Role in Almost All Product Liability Cases
16-1:2 Expert Testimony Must Assist Trier of Fact
16-2 QUALIFICATIONS OF EXPERTS
16-2:1 Court May Qualify Witness as Expert in Wide Range of Endeavors
16-2:2 Fed. R. Evid. 702 Provides Liberal Rule of Qualification
16-2:3 Determination of Competency of Expert Witness is Discretionary
16-2:4 Determination of Expert's Qualification is Fact-Intensive
16-2:5 Witness With General Competence, and Specific Competence, May Qualify as an Expert
16-3 FACTUAL BASIS FOR EXPERT TESTIMONY
16-3:1 Fed. R. Evid. 703 Provides Liberal Rule of Qualification
16-3:2 Courts' Determination of Whether Facts Are of Type "Reasonably Relied On" by Expert in Field
16-4 EXPERT METHODOLOGY AND RELIABILITY
16-4:1 Introduction to Reliability Analysis of Expert Methodology
16-4:2 Ascendancy of Daubert v. Merrell-Dow Pharmaceutical Co. and Demise of Frye v. United States
16-4:2.1 Supreme Court Sets Forth Standards for Admissibility of Expert Testimony
16-4:2.2 General Electric Co. v. Joiner Endorses District Court's Broad Discretion in Admitting Testimony
16-4:2.3 Kumho Tire Co., Ltd. v. Carmichael: Daubert Applies to Testimony Based on Technical or Other Specialized Knowledge
16-4:2.4 Wiesgram v. Marley Co.: Court of Appeals May Reverse if Testimony is Erroneously Admitted
16-4:3 States Continuing to Apply Frye or Applying Idiosyncratic Standards
16-4:3.1 Pennsylvania Continues to Apply Frye
16-4:4 Methods for Fulfilling Gatekeeping Function Under Daubert
16-4:5 Federal Courts Continue to Interpret Daubert
16-4:5.1 Third Circuit Expanded Upon Daubert Criteria
16-4:5.1a Examples of Courts Applying Daubert/Paoli Factors
16-4:5.2 “Fit” Requirement
16-4:5.3 Expert Should Explain Underlying Reasoning or Methodology
16-4:5.3a Experts Should Explain Reasoning or Methodology
16-4:5.3 b “Wholesale” Reliance on General Scientific Principles Will Not Survive Daubert
16-4:5.3c Expert May Rely on Experience as Basis for Opinion
16-4:5.4 Opinions Developed Solely for Litigation Purposes
16-4:5.5 “Indicia of Reliability”
16-4:5.6 No Single Factor is Determinative in Daubert Analysis
16-4:5.7 Failure To Test Expert’s Theory is Important Factor
16-4:5.8 Daubert's Focus is on Methodology, Not Conclusions

CHAPTER 17
AUTOMOTIVE PRODUCTS LIABILITY LAW (LEMON LAW)
17-1 PENNSYLVANIA LEMON LAW

17-1:1 Nonconformity
17-1:2 Presumption of Reasonable Number of Attempts
17-1:3 Damages
17-2 MAGNUSON-MOSS WARRANTY ACT (MMWA) AND UNIFORM COMMERCIAL CODE (UCC)
17-2:1 Breach of Warranty
17-2:2 Damages
17-3 UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (UTPCPL)
17-3:1 Purpose of the Law
17-3:2 Violations
17-3:3 Damages
17-4 LEMON LAW STATUTE OF LIMITATIONS
17-4:1 Accrual of Time for UCC Breach of Express and Implied Warranties
17-4:2 Caveat – Argument for a Six-Year Limitations Period
17-4:3 Recent Changes

CHAPTER 18
FEDERAL PREEMPTION
18-1 PREEMPTION OF STATE LAW CLAIMS
18-1:1 Preemption In General, Application to Common Law Claims in Product Liability Actions, Preemption and Products Liability
18-1:2 Preemption as a Defense
18-2 PREEMPTION IN PENNSYLVANIA
18-3 SPECIFIC EXAMPLES OF PREEMPTION
18-3:1 The Federal Hazardous Substances Act
18-3:2 Toys, The CPSC CPSA and NTMVSA
18-3:3.1 Conflict Preemption and the CPSA
18-3:3.2 Express Preemption and the CPSA
18-4 MEDICAL DEVICES AND FEDERAL PREEMPTION
18-4:1 MDA Classifications
18-4:2 Express Preemption Under the MDA
18-5 OSHA AND PREEMPTION
18-5:1 Field Preemption Under OSHA
18-6 PREEMPTION AND THE FEDERAL BOAT SAFETY ACT OF 1971
18-6:1 Express Preemption and the FBSA
18-6:2 The FBSA’s Savings Clause Does Not Preserve Common Law Claims
18-7 SUMMARY JUDGMENT WHERE PREEMPTION EXISTS
18-8 CONCLUSION

CHAPTER 19
FOOD, DRUGS AND ROCK AND ROLL…OR MEDICAL DEVICES (HAIR TODAY, GONE TOMORROW)
19-1 FOOD
19-2 MEDICAL DEVICES
19-3 PREEMPTION IN DESIGN DEFECT AND PRODUCTS LIABILITY FAILURE TO WARN19-3:1Drugs and Preemption
19-3:1.1 In General
19-3:1.2 Express Preemption
19-3:1.3 Conflict in the Circuits
19-3:1.4 Pennsylvania Law
19-4 HAIR PRODUCTS

CHAPTER 20
RECALLS
20-1“RECALL” DISTINGUISHED FROM “RETROFIT”
20-2 FEDERAL AGENCIES WITH STATUTORY AUTHORITY TO RECALL PRODUCTS
20-3 NO COMMON LAW DUTY TO RECALL IN VAST MAJORITY OF JURISDICTIONS
20-4 “POST-SALE DUTY TO WARN” DISTINGUISHED FROM “DUTY TO RECALL”
20-5 STATUTORY AND OTHER AUTHORITY AUTHORIZING RECALLS
20-5:1 National Traffic and Motor Vehicle Safety Act
20-5:2 Consumer Product Safety Act
20-5:3 Food Drug and Cosmetic Act
20-5:4 National Manufactured Home Construction and Safety Standards Act
20-5:5 Recreational Vessels Act
20-5:6 Federal Trade Commission
20-6 DEFINITION OF DEFECT FOR PURPOSES OF RECALL
20-6:1 Regulatory "Defect" Versus Products Liability Defect
20-6:2 National Traffic and Motor Vehicle Safety Act
20-6:3 Consumer Product Safety Act and “Defect” - Statutory Basis for Recall, “Imminently Hazardous Product” and “Substantial Product Hazard”
20-7 VOLUNTARY RECALLS AND MANDATORY RECALLS
20-8 RECALL NOTICES AND EVIDENTIARY CONSIDERATIONS
20-8:1 Recall Notices are Generally Admissible to Show that Defect Existed While in Hands of Manufacturer
20-8:2 Failure to Recall as Evidence for Punitive Damages
20-8:3 Recall Notice Must be Relevant to be Admitted
20-8:4 Recall Notice May be Inadmissible Under Repair Doctrine and Fed. R. Evid. 407
20-8:5 Public Policy
20-9 CPSC RECALL RESOURCES