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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

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. 

Thought Leadership

Appellate Division Affirmed Workers’ Compensation Order Striking Defenses and Ordering Treatment

Kneezel v. Lambertville House, No. A-2729-24 (June 1, 2026) In Kneezel v. Lambertville House, Lambertville House appealed from a workers’ compensation order to strike its defenses and directing it to authorize knee replacement surgery. By way of background, the petitioner worked as a property manager for Lambertville and injured his back and knee in December 2019. A workers’ compensation claim was filed and the petitioner treated at Rothman Institute. He underwent four injections to his low back and was recommended for surgery. The day before, Lambertville canceled and set up a second opinion exam with Dr. Lawrence Barr. The petitioner filed a motion for medical and temporary benefits (MMT), which was ultimately granted by the workers’ compensation judge. As such, he received authorized treatment for his back. The petitioner was then referred for his left knee pain and treatment was provided by Lambertville. He was recommended for a knee replacement, but the petitioner declined at that time. Approximately two years later, he sought additional treatment, which was denied. After obtaining a report from Dr. Dhimant Balar, the petitioner filed another MMT. In response, Lambertville submitted Dr. Zachwieja’s report and surveillance reports. Dr. Balar opined the left knee injury was related to the work accident, whereas Dr. Zachwieja believed it was due to his advanced degeneration as there was no evidence of acute trauma. A hearing on the MMT began in November 2024, with the petitioner testifying his knee pain never went away and he had a lot of trouble walking, especially for more than five to ten minutes. The surveillance investigators were scheduled to testify after, but had to be rescheduled a couple of times. During a conference in early February 2025, prior to when the investigators were to testify, it was discovered that Lambertville did not provide discovery to the petitioner, including the investigators’ information and surveillance footage. The petitioner moved to strike Lambertville’s defenses and sought an order to authorize the left knee treatment. Petitioner’s counsel pointed to Lambertville’s unreasonable delay in providing the necessary information and Lambertville did not file an opposition. In March 2025, the investigators’ testimonies were set for mid-March. On March 14, 2025, petitioner’s counsel advised she was still waiting for discovery and the judge directed Lambertville’s counsel to provide any missing information by March 17, 2025. Lambertville provided video clips after the petitioner had testified so the judge indicated that if everything was not provided to petitioner’s counsel by the end of March 19, 2025, the judge would sign the order granting the MMT. The next day, the judge entered the order striking Lambertville’s defenses and ordering left knee treatment. Lambertville moved for reconsideration of stay of the order pending appeal. Following oral arguments, the judge denied Lambertville’s motion, citing N.J.A.C. 12:235-3.11 (a)(4)(i) that Lambertville was required to provide surveillance after the petitioner’s testimony and that it had failed to do so even after he testified in November 2024. The judge also noted the investigators’ testimonies were rescheduled multiple times and Lambertville had more than enough time to provide the requested information and failed to do so. The judge also noted Lambertville failed to file a response to the petitioner’s motion to strike. In addition, the judge pointed to the petitioner’s testimony, finding him to be credible and observing him to have to stand and move multiple times during testimony. Lambertville appealed, arguing its due process rights were violated as there was no opportunity to be heard and the order was procedurally and factually defective. However, the Appellate Division disagreed, noting Lambertville had sufficient notice and many opportunities to be heard. It was noted Lambertville’s failure to comply with the judge’s requests led to the order. As for the motion to strike, the Appellate Division indicated Lambertville failed to oppose the motion, which provided the judge with the ability to decide without a hearing for an uncontested motion. Ultimately, the Appellate Division found no abuse of discretion and affirmed the judge’s rulings and order.

Thought Leadership

Employer/Carriers Must Explicitly Invoke Right to Deny Claim Under “Pay and Investigate” Statutory Provision; Employes Must Always Prove Medical Necessity of Treatment

Koren v. City of Kissimmee/PGCS, ___So.3d___(Fla 1st DCA 6/10/26) The majority opinion in Koren holds that the Judge of Compensation Claims (JCC) properly denied psychiatric treatment because the claimant did not challenge on appeal the JCC’s finding that the requested treatment was not medically necessary. However, Judge K. Thomas authored a detailed concurrence agreeing with the result on the ground that the claimant failed to meet his burden of proving medical necessity. In doing so, Judge K. Thomas also emphasized an important principle: employer/carriers must expressly invoke the 120-day pay-and-investigate provision under Florida’s Workers’ Compensation Act if they intend to preserve their right to deny compensability. Merely authorizing evaluations, without explicitly invoking the 120-day rule, may be insufficient to preserve the right to deny compensability of specific injuries. In Koren, the claimant sustained injuries to his upper lip, tooth, right knee, and right foot when a board gave way on a deck he was repairing for the employer/carrier. The accident was accepted as compensable, and multiple specialists were authorized to treat his physical injuries, including an ear, nose, and throat physician, dentist, orthopedist, and plastic surgeon. The claimant later sought psychiatric treatment and attended an independent medical examination (IME) with a psychiatrist. The IME diagnosed adjustment disorder with mixed anxiety and depressed mood, opining that the condition was caused by “the actual appearance of the scar” resulting from the industrial accident. The IME recommended continued medication, including an antidepressant, as well as follow-up care with a psychiatrist and psychologist. Critically, however, the IME did not offer an opinion regarding the medical necessity of this treatment. The claimant then filed a petition for benefits attaching the IME report and requesting authorization of psychiatric care. The employer/carrier responded by authorizing a psychiatrist, whom the claimant did, in fact, see. However, the employer/carrier neither denied the claim nor issued written notice invoking the 120-day pay-and-investigate provision. The authorized psychiatrist subsequently opined that the claimant’s psychiatric condition was unrelated to the industrial accident and instead attributable to prior employment as a law enforcement officer and volunteer firefighter. The psychiatrist further concluded that the work accident was not the major contributing cause of the condition. Although the employer/carrier stipulated to the authorization of the psychiatrist, it ultimately denied the claimant’s entitlement to psychiatric treatment. The JCC denied the requested benefit. The majority opinion affirmed on the narrow ground that medical necessity had not been established. Judge K. Thomas’s concurrence, however, expands on the legal framework. Under Florida law, an employer/carrier presented with a claim must “pay, pay and investigate, or deny.” To avail itself of the 120-day pay-and-investigate protection, the employer/carrier must affirmatively and explicitly invoke that option, typically through a written 120-day letter. The statutory investigative period does not arise automatically upon the provision of care. Furthermore, an attempt to characterize authorization as a “one-time evaluation” does not avoid waiver, as even a single evaluation may constitute the provision of a compensable benefit. By authorizing psychiatric care without invoking the 120-day provision, the employer/carrier in Koren effectively accepted compensability of the claimant’s PTSD condition. Nonetheless, it retained the ability to contest entitlement to ongoing treatment. While the employer/carrier failed to demonstrate a break in the causal chain, the claimant still bore the burden of proving that the requested treatment was medically necessary. Because the JCC found that the claimant failed to meet this burden, and the claimant did not challenge that finding either below or on appeal, the denial of psychiatric benefits was ultimately affirmed.

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998.  For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer.  In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability.  The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline.  Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter.  The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant.  The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing.  The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations.  As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer.  The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements.  Therefore,  the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b).  Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements.  For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.