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Vlada Tasich

Co-Chair, Product Liability Practice

Chair, Class Action Litigation Practice

VXTasich@mdwcg.com

Portrait of Vlada Tasich

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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department