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Defense Digest

On the Pulse…Our Product Liability Practice Group

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

by Bradley D. Remick and Vlada Tasich

For almost five decades, Marshall Dennehey has maintained an experienced and sophisticated group of trial attorneys involved in product liability litigation. The product liability landscape has evolved continually since first arriving on the scene in the 1970s. In the intervening forty-plus years, we have successfully represented numerous product defendants, as our defense attorneys have kept abreast of ever-changing legal theories, judicial viewpoints and, of course, evolving technology. 

The co-chairs of the Product Liability Practice Group, Bradley Remick and Vlada Tasich, have over 50 years of combined experience in handling product liability cases for a myriad of domestic and international product manufacturers, involving virtually every conceivable type of consumer or industrial product. Brad has authored six treatises on Pennsylvania product liability. The demands of a defense product liability practice are such that attorneys must make certain that they are up-to-date on the latest case law. Federal and state appellate and trial court decisions directly impact the defense of product liability defendants. In that respect, we have been at the forefront, providing guidance to clients and collaborating with peers to coordinate broader defense strategies as legal landscapes have shifted in this area of law. 

For example, in 2014 the Pennsylvania Supreme Court issued a landmark decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), upending nearly 40 years of prior strict liability precedent. Under earlier case law, a product was defective if it lacked any element necessary to make it safe for its intended use. Jurors were told that a manufacturer was a guarantor of its product’s safety. Tincher expressly rejected these standards, acknowledged that it was for the jury to decide if a product was unreasonably dangerous, and adopted two alternative standards for demonstrating defect: the consumer expectations test and the risk-utility test. While the core legal framework for analyzing if a product is defective changed, many other longstanding product issues were left unresolved; the Tincher court leaving it to future cases where the common law could develop “within the proper factual contexts against the background of targeted advocacy.” The plaintiffs’ bar generally rejected the sweeping nature of the court’s decision, which was a positive development for product defendants. They also influenced efforts by the Pennsylvania Bar Institute to fashion plaintiff-friendly suggested standard jury instructions that, by and large, held on to the principles rejected by Tincher. Marshall Dennehey attorneys were at the forefront of concerted efforts by the defense bar to draft alternative suggested jury instructions that more fairly follow the law. Our trailblazing lawyers, on behalf of our clients, also targeted cases for trial where a number of these alternative instructions were adopted by Pennsylvania courts as more accurate statements of the applicable legal standards post Tincher. 

Our practice group makes certain that our attorneys are keenly aware of legal changes involving product liability. We employ every avenue of defense available to our clients in order to successfully and fairly defend their products before a jury.

Our experienced and sophisticated trial attorneys prepare and handle a variety of complex product liability litigation, including the representation of major product manufacturers, distributors and other manufacturers through insurance carriers. The wide variety of cases and clients we represent evidences the level of experience and sophistication that our clients have come to expect in their defense. Over the years, our attorneys have handled thousands of product liability matters, in all of the jurisdictions to which our regional practice extends.

The practice includes defense of accidents and alleged failures of all types, including, for example:

  • A broad variety of vehicle products including automobiles, motorcycles, recreational vehicles and trucks, as well as the component manufacturers and suppliers for those products.
  • Consumer goods and appliances.
  • Drug and dietary supplements.
  • Combining its resources with its legal and medical malpractice groups, the Product Liability Practice Group defends cases involving pharmaceuticals, biologics, compounding pharmacies and medical devices.
  • Recreational equipment, including helmets and exercise equipment.
  • Industrial and manufacturing equipment of all sorts and all sizes, ranging from small generators to large electrical components that provide electric service to municipalities. 
  • Building equipment and structures, including all the components involved therein.
  • Elevators and escalators.
  • Fire suppression equipment and systems.
  • Mold and contamination issues. 
  • Asbestos and toxic tort claims. 
  • Consumer products of all varieties.

Marshall Dennehey’s product liability practice also includes multi-district litigation, class actions, and commercial claims arising from allegedly poorly performing and/or defective products and/or their components.

The attorneys in this practice group are recognized leaders in this area of the law. They frequently speak at national, regional and local seminars, and they are published in their field. Several have been elected as Fellows of the American College of Trial Lawyers. Their memberships include: Product Liability Advisory Council, Product Liability Committee of the Defense Research Institute, International Association of Defense Counsel, Federation of Defense and Corporate Counsel, the Pennsylvania Bar Association and the Trial Lawyers of America.

Marshall Dennehey recognizes the advantage available to defense counsel by employing the resources of its clients, who have the best expertise pertaining to their product, and then supplementing that expertise with our extensive expert bank to select the appropriate forensic and/or technical expert. Our entire focus is directed at presenting the product to a jury in a persuasive and understandable manner so as to achieve a defense verdict.

The next decade will surely see further change, as emerging technologies continue to reshape our world and product liability law continues to evolve. Marshall Dennehey remains at the forefront of the current generation of practitioners, and we are poised and prepared to enhance the defense of product manufacturers into the future.

*Brad, chair of the Product Liability Practice Group, and Vlad, co-chair of this group, are shareholders and work in our Philadelphia, Pennsylvania office. They can be reached respectively at 215.575.2762 or bdremick@mdwcg.com and 215.575.2659 or vxtasich@mdwcg.com.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.