Liability

Joint and Several

Economic

Applies

A statutory amendment that would have limited joint and several liability to certain instances (e.g. misrepresentations, intentional torts) was struck down in Deweese v. Weaver, 880 A. 2d 54 (Commw. Ct. 2005), aff'd, DeWeese v. Cortes, 906 A. 2d 1193 (Pa. 2006) and Estate of Hicks v. Dana Corp., 909 A.2d 298 (Pa. 2006), for violating the single subject rule of the state constitution.

Non-Economic

Applies

See above. 

Market Share

No

Skipworth v. Lead Indus. Ass’n, 690 A.2d 169 (Pa. 1997) (rejecting market share liability).

Defenses

Statute of Repose

In medical liability and real property improvement cases only

7-year statute of repose in medical liability claims.  The statute of repose does not apply to foreign objects unintentionally left in the body, nor does it require a minor to commence an action prior to age 20. 

40 Pa. Stat. Ann. § 1303.513.

12-year statute of repose applicable to claims involving improvements to real property. 

42 Pa. Cons. Stat. Ann. § 5536; see also Columbia Gas of Pa., Inc. v. Carl E. Baker, Inc., 667 A.2d 404 (Pa. Super. Ct. 1995) (declaring statute to be constitutional).

Generally, manufacturers are not covered by the statute of repose in actions for personal injuries. 

Noll v. Harrisburg Area YMCA, 643 A.2d 81 (Pa. 1994).

Product Misuse

A manufacturer is not responsible for injuries due to abnormal use that could not be reasonably foreseen or expected.  Brill v. Systems Resources, Inc., 592 A.2d 1377 (Pa. Super. Ct. 1991); Pegg v. General Motors Corp., 391 A.2d 1074 (Pa. Super. Ct. 1978).

Government Contract

Yes, by court decision

Pennsylvania recognizes a government contractor defense in product liability cases.  See Mackey v. Maremont Corp., 504 A.2d 908 (Pa. 1986); see also Beaver Valley Power Co. v. National Eng’g & Contracting, Co., 883 F.2d 1210 (3d Cir. 1989); In re Air Crash Disaster at Mannheim, 769 F.2d 115 (3d. Cir. 1985), cert. denied, 474 U.S. 1082 (1986); Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d. Cir. 1982); Price v. Tempo, Inc., 603 F. Supp. 1359 (E.D. Pa. 1985).

Compliance With Government Standards

No

Evidence that the product complied with customary standards or industry standards is usually inadmissible with respect to the issue of defect.  See Leaphart v. Whiting Corp., 564 A.2d 165 (Super. Ct. 1989), review denied, 577 A.2d 890 (Pa. 1990); Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987).

Comparative Negligence

Yes, modified

A plaintiff may not recover if his or her negligence is greater than the causal negligence of the defendant or defendants against whom recovery is sought. 

42 Pa. Cons. Stat. Ann. § 7102.  Comparative negligence is not a defense in strict product liability cases.  Parks v. Allied Signal, Inc., 113 F.3d 1327 (3d Cir. 1997).

Assumption of Risk

No, in negligence actions, but sometimes applied as “lack of duty”

Yes, in strict product liability actions

Abolished unless preserved by statute or in cases of express assumption of risk.  Rutter v. Northeastern Beaver Cty., 437 A.2d 1198 (Pa. 1981); see also Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978) (holding plaintiff hit by baseball at ballpark could recover if invitor diverted plaintiff's attention with eye catching displays).

No duty/assumption of risk: Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983) (no duty to plaintiff who slipped on ice in parking lot because danger was known and obvious); Dilauro v. One Bala Ave. Ass’n, 615 A.2d 90 (Pa. Super. Ct. 1992) (plaintiff assumed risk when going down stairs without use of handrail).

Assumption of risk is a defense in product defect cases if the plaintiff knew and understood the specific danger and the potential for serious injury and yet voluntarily choose to encounter it.  Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997); Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100 (Pa. 1990).

Compensatory Damages

Economic

No limit

Non-Economic

No limit

Is recovery for medical monitoring permitted without physical injury?

Yes, cause of action

Redland Soccer Club, Inc., v. Dep’t of the Army, 696 A.2d 137, 145-48 (Pa. 1997).

Punitive Damages

Allowed

Limited against health care providers only

Punitive damages against a health care provider are limited to two times compensatory damages, except in cases of intentional misconduct. 

40 Pa. Cons. Stat. Ann. § 1303.505(d). 

Multiple awards for same conduct

No limit

Award paid to state

No

25% of punitive damages in medical malpractice cases must be paid into the Medical Care Availability and Reduction of Error Fund. 

Pa. Cons. Stat. Ann. 40, § 1303.505(e).

 Standard used

Preponderance of the evidence

Procedures

Venue

Conducive to Abuse

Not reported

A personal action against a corporation or similar entity may be brought in and only in:  (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; (4) a county where a transaction or occurrence took place out of which the cause of action arose; or (5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. An action regarding an insurance policy may be brought, in addition to the above, in the county where the insured property is located or where the plaintiff resides in actions upon life, accident, health, or disability, policies or fraternal benefit certificates. 

Pa. R. Civ. P. 2179(a).

Class Actions

Immediate right of appeal from class certification?

Discretionary

Under Pennsylvania law, an order certifying a class is appealable by permission under Pa. R. App. P. 312.  An order denying class certification is a collateral order which may be appealed of right under Pa. R. App. P. 313.  See Dunn v. Allegheny County Prop. Assessment Appeals and Review Bd., 794 A.2d 416 (Commw. Ct. 2002), aff'd, 936 A.2d 487 (Pa. 2007); Foust v. Southeastern Pa. Transp. Auth., 756 A.2d 112 (Commw. Ct. 2000), review denied, 771 A.2d 1289 (Pa. 2001); Niemiec v. Allstate Ins. Co., 721 A.2d 807 (Pa. Super. Ct. 1998).

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

No

Pennsylvania courts continue to apply the Frye standard to determine whether scientific evidence is admissible. Commonwealth v. Arroyo, 723 A.2d 162 (Pa. 1999).  Subsequently, the Pennsylvania Supreme Court reviewed a case in which the trial court applied Daubert and, in its review of the case, the Pennsylvania Court of Appeals applied Frye.  The Supreme Court held that the expert’s testimony was inadmissible under both Daubert and Frye, stating that it would be jurisprudentially unsound” to use the case to resolve the conflict.  Blum v. Merrell Dow Pharm., 764 A.2d 1, 5 (Pa. 2000).

Problem Jurisdictions

None Reported