By Susan Lasser, J.D.
Because there is no duty under Pennsylvania law to recall or retrofit a defective product, a widow’s claims that the manufacturer and the lessor of a scissor lift, from which her husband slipped and later died of his injuries, failed to recall/retrofit the lift were dismissed with prejudice by a federal district court in Pennsylvania (Talarico v. Skyjack, Inc., June 13, 2016, Mannion, M.).
The decedent’s widow, who was the administratrix of the decedent’s estate, brought a strict liability, negligence, and breach of warranty action against Skyjack, Inc., the manufacturer of the scissor lift the decedent was using at the time of the accident, and United Rentals (North America), Inc., which rented the scissor lift to the decedent, who was the owner of a construction company. The decedent was using the scissor lift at a construction site to transport, lift, and carry heavy objects, including sheets of dry wall.
Accident. As alleged in the complaint, the decedent was using the scissor lift "in an ordinary manner consistent with its intended use" when he stepped onto the step of the scissor lift to retrieve a caulk gun that was located on the work platform of the lift. He then "slipped from the step, caught his right foot on the step, and fell backwards approximately six to ten feet to the ground, violently striking his head on the concrete floor." The wife alleged that her husband died as a result of the injuries he sustained in the accident.
Claims. According to the wife, the scissor lift was defective because it "did not have any visual cues to direct an intended user to designated handholds," "did not have any designated handholds," and "did not have any warning(s) or instruction(s) for safe ingress and egress to the work platform." In her negligence claim, she detailed how both Skyjack and United Rentals allegedly breached their duties of care and what they failed to do which allegedly amounted to negligence and caused her husband’s accident. Specifically, she claimed that in spite of the defendants’ knowledge of the risk of serious injury or death, they breached their duties to exercise reasonable care and were negligent in: "failing to recall, broadcast warn, advertise warn, or otherwise cause the repair of mechanisms and/or design elements which render the scissor lift unreasonably dangerous when used in an ordinary, intended and foreseeable manner."
In its motion before the court, the lessor argued that because there is no duty to recall or retrofit a product under Pennsylvania law, the decedent’s wife’s allegation of negligence based on "failing to recall" the product had to be stricken for failure to state a claim. In addition, the manufacturer filed an answer with affirmative defenses to the wife’s amended complaint, admitting that it was in the business of designing, engineering, manufacturing, testing and distributing its scissor lifts, boom lifts, and telehandlers. It also admitted that it conducts business in Pennsylvania. However, the manufacturer alleged that the decedent’s injuries were caused by his own negligence, abuse and misuse of the scissor lift, and that the lift’s operating manual had several references to using three points of contact when entering and exiting a scissor lift.
Duty to retrofit/recall in Pennsylvania. The district court observed that the U.S. Court of Appeals for the Third Circuit has noted that there is no Pennsylvania case that has recognized a duty to retrofit, and that one Pennsylvania case has suggested that such a duty would be inappropriate under established principles of Pennsylvania law. In fact, Pennsylvania courts have rejected allegations that a defendant negligently failed to withdraw a product from the marketplace based on prior court rulings refusing to impose a post-sale duty on manufacturers to recall or retrofit products when the product was not defective at the time of the sale. In the current case, the wife did not allege that a latent defect existed in the scissor lift at the time of sale, but instead she claimed that a new device—"designated handholds"—could be installed to make the lift safer.
Nonetheless, the courts have held that in spite of a limited post-sale duty to warn under Pennsylvania law in cases in which the product was defective from the date of the manufacture and the manufacturer had notice of the defect when the product was sold, the limited duty to warn did not extend to the duty to recall and retrofit.
Lance v. Wyeth. The wife argued that Lance v. Wyeth, 624 Pa. 231 (2014) [see Products Liability Law Daily’s January 23, 2014 analysis], allowed her allegations because she was "clearly and unambiguously assigning negligence" to the defendants’ "decision to continue to sell" the product despite their knowledge of its unreasonable risks. The Pennsylvania Supreme Court in Lance considered whether the plaintiff’s complaint in that case was sufficient to state a claim as to whether the defendant drug manufacturer had a duty to withdraw a prescription diet drug from the marketplace if it knew or should have known that the drug was too dangerous to be used by anyone. The plaintiff in the case had claimed that the drug maker was negligent because it failed to stop the distribution of two of its versions of the diet drug Phen-Phen once it knew that the drug was "unreasonably dangerous for any person to use." The state high court restated that there is a bar on all strict liability claims in Pennsylvania with respect to prescription drugs, and held that there was not any immunity for pharmaceutical companies from negligent design defect claims for manufacturing/disseminating products which they know or should have known were too dangerous for use. That court ruled that a company responsible for placing into the market a drug which it knows/should know is so dangerous that it should not be taken "can be said to have violated its duty of care either in design or marketing." Further, the state supreme court stated that whatever the policy considerations in a duty to recall/retrofit claim, the manufacturer/supplier has a duty to cease further distribution of a product at such point as it may know, or may reasonably be charged with knowledge that the product is too dangerous to be used by anyone.
Decision. The district court found the wife’s reliance on Lance misplaced. The court in Lance held that a person injured by a pharmaceutical product could recover against the drug manufacturer under Pennsylvania law based on negligence theories, including failure to warn, design defect, and negligent marketing. The district court did not find that the Pennsylvania Supreme Court had announced in Lance a duty to recall and/or retrofit as argued by the decedent’s widow. Nor did the court find that an independent negligence cause of action existed in Pennsylvania under a duty to recall and/or retrofit. Therefore, neither defendant could be liable for a failure to retrofit and/or recall the scissor lift.
The case is No. 3:16-0082.
Attorneys: Vincent S. Cimini (The Law Firm of Cognetti & Cimini) for Denise Frati Talarico. John Michael Kunsch (Sweeney & Sheehan, PC) for Skyjack, Inc. and United Rentals [North America], Inc.
Companies: Skyjack, Inc.; United Rentals [North America], Inc.
MainStory: TopStory DesignManufacturingNews WarningsNews IndustrialCommercialEquipNews PennsylvaniaNews
Interested in submitting an article?
Submit your information to us today!Learn More