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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

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority. 

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.