Tuesday, November 27, 2012
Causation and Plaintiff's Conduct in Pennsylvania Strict Liability
The Pennsylvania Supreme Court decided a product liability case yesterday: Reott v. Asia Trend, Inc., Nos. 27-30 WAP 2011, slip op. (Pa. Nov. 26, 2012). First of all – no, Reott did not answer, or even mention, the foundational Restatement (Second) vs. Restatement (Third) question, since the case: (1) involved only a manufacturing defect (missing stitching), as to which both restatements agree strict liability should apply, and (2) the element of product defect was not even at issue, since a directed verdict on manufacturing defect had been entered and not appealed. Actually, the point about no mention is not exactly right, since Justice Saylor’s concurring opinion made clear that as to other types of “defects” that question remains open.
The second thing to note about Reott, from our perspective, is that its holdings about plaintiff conduct and causation issues are relevant to prescription medical product cases mostly by analogy because in Hahn v. Richter, 673 A.2d 888 (Pa. 1996), the same court barred strict liability (at least for design and warning – manufacturing defect claims are uncertain) in cases involving such products. But there are occasional manufacturing defect cases involving prescription drugs, and principles of sole causation and superseding cause are also found in negligence, so Reott is worth a look, particularly by Pennsylvania practitioners.
Reott involved that most non-prescription sort of product – a tree stand. If you don’t hunt, then that product name probably doesn’t do much for you either. A tree stand is just what it sounds like, a collapsible platform placed in a tree as a location from which hunters can watch for game (usually, but not always deer). To fit around the tree, a tree stand has a locking strap. The plaintiff, an experienced hunter, had devised his own method to take the slack out of a locking strap so that the tree stand wouldn’t wiggle. In the words of the court:
[W]hile bear hugging the tree, [plaintiff] raised himself on his toes and came down on the platform. According to [plaintiff], this self- taught maneuver, known as “setting the stand,” is used to secure the stand firmly in the tree by taking any slack out of the locking strap. [Plaintiff][ had performed this maneuver, in his estimation, hundreds of times on other stands.
Reott, slip op. at 3-4. Unfortunately, this time the locking strap (with the undisputed manufacturing defect) “broke, and [plaintiff] fell to the ground.” Id. at 4. Even more unfortunately, plaintiff was 25 feet up in the tree when that happened.
With the manufacturing defect not seriously disputed (plaintiff owned a second tree stand of the same make and presumably an expert compared the two and found the missing stitching), the issue at trial was causation. As far as we can tell, the plaintiff’s practice of slamming his weight down on the newly placed stand to force the slack out of the strap was something he devised and was not recommended by the manufacturer or anybody else. How, then, did the plaintiff’s conduct affect causation?
Well, in Pennsylvania strict liability, the mere comparative negligence of the plaintiff isn’t a defense/admissible evidence. However, under a series of lower court decisions, a plaintiff’s “highly reckless” conduct can be the “sole cause” of an accident and is admissible. Thus, under these decisions, a jury gets to hear about a plaintiff’s Darwin Award-worthy conduct. Daddona v. Thind, 891 A.2d 786, 810-11 (Pa. Commw. 2006) (failure to use available safety device, among several other things); Coffey v. Minwax Co., 764 A.2d 616, 621 (Pa. Super. 2000) (use of electricity in presence of inflammable fumes); Frey v. Harley Davidson Motor Co., 734 A.2d 1, 6-8 (Pa. Super. 1999) (driving without lights at night); Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508-09 (Pa. Super. 1998) (driving while intoxicated); Gallagher v. Ing, 532 A.2d 1179, 1182 (Pa. Super. 1987) (same); Foley v. Clark Equipment Co., 523 A.2d 379, 394 (Pa. Super. 1987) (failure to watch where plaintiff was driving); Keirs v. Weber National Stores, Inc., 507 A.2d 406, 409 (Pa. Super. 1986) (not changing out of gasoline-soaked clothing); Gottfried v. American Can Co., 489 A.2d 222, 227 (Pa. Super. 1985) (sticking hand without looking into jagged container); Bascelli v. Randy, Inc., 488 A.2d 1110, 1114 (Pa. Super. 1985) (speeding in excess of 100 m.p.h.); Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 542-45 (3d Cir. 2007) (gross failure to maintain product) (applying Pennsylvania law); Wilson v. Vermont Castings, Inc., 170 F.3d 391, 395-96 (3d Cir. 1999) (failure to read owner’s manual; standing near open flame in loose clothing) (applying Pennsylvania law).
The Supreme Court had never considered whether the “highly reckless” exception to the exclusion of a plaintiff’s contributory fault existed at all, much less how to apply it. In Reott, the majority recognized the exception and held that, like related defenses (assumption of the risk, superseding cause) it was an affirmative defense available to defendants in strict liability actions:
[W]e hold that a defendant in a §402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted. . . . [H]ighly reckless conduct is that which occurs when the plaintiff would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding cause. . . . [B]ecause highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained. . . . [S]hould such an affirmative defense be pursued, the burden of proof is on the defendant to show that the highly reckless conduct was the sole or superseding cause of the injuries sustained.
Reott, slip op. 21-22 (various things omitted). The intermediate court had held that, because there was no evidence that the plaintiff’s conduct would have collasped a non-defective tree stand, the defense should not have gone to the jury. Id. at 7. The Supreme Court, without re-examining the evidence, affirmed after concluding that the Superior Court more or less got the standard correct. Id. at 22.
So what about it?
First, we’re somewhat relieved. This quasi-superseding cause standard is pretty rigorous, but we were not at all sure that the Supreme Court – short of adopting the Third Restatement − would allow in any evidence that could otherwise be characterized as “contributory fault.” Earlier courts, with different justices, probably would not have done so. So, to get the “highly reckless” exception formally recognized by the Supreme Court is something of a defense win (even if the defendant in this particular case lost).
Defendants need to make sure to plead the exception (it apparently doesn’t fall within Rule 1030(b)), which as the court noted, can be pleaded in the alternative. Slip op. at 20. Importantly, there is no requirement, in establishing the defense, that the plaintiff be aware of any product defect. Id. at 15 (“assumption of the risk involves knowledge of the product’s defect where highly reckless conduct does not”). So the general takeaway is that if the plaintiff’s conduct was stupid enough that it can be presented as a “sole cause,” the jury gets to know about it.
In the case of a defectively manufactured drug or device (arguably subject to the same rules), what kind of plaintiff conduct could qualify? Looking at the cases above, we’d say that patient non-compliance – ignoring doctor’s orders, including those to watch for specific adverse effects – would fit. So would, in the case of an OTC product, ignoring instructions (such as dosing/frequency of use) would also fall within this rubric. Using someone else’s prescription, or using a drug in an illegal fashion (often seen in cases involving painkillers) would also seem to qualify. Physician misuse – ignoring a contraindication – would be in the same ballpark. Finally, there are cases of simple stupidity, standing on a wheelchair, or the weird Hawaii case where the doctor substituted a screw driver for a spinal rod, that (like the 100 m.p.h. plaintiff in Bascelli) that a jury could find sole cause.
Anyway, so while Reott could have been better, is also could have been worse. There is no blanket rule in Pennsylvania strict liability that precludes jury consideration of a plaintiff’s improper conduct. Rather, such conduct is admissible as long as it creates a jury submissible case that the plaintiff caused his/her own injuries.