The Subrogation Strategist

Pennsylvania recognizes the malfunction theory in product liability cases. This theory allows a plaintiff to circumstantially prove that a product is defective by showing evidence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction. The malfunction theory is available to plaintiffs as an alternative to proving a traditional strict product liability case in those circumstances where direct evidence of a product defect is not found. In Pa. Nat’l Mut. Cas. Ins. Co. v. Sam’s East, Inc., 727 MDA 2020, 2021 Pa. Super. Unpub. LEXIS 752, the Superior Court of Pennsylvania (Superior Court) considered whether the plaintiffs could avail themselves to the malfunction theory if the plaintiffs’ expert was able to examine the product.Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On May 13, 2021, the CPSC announced the following recalls related to products that present fire hazards:

1. BRP Recalls Snowmobiles Due to Fire Hazard (Recall Alert). According to the CPSC, “[t]he snowmobile’s muffler can overheat and cause the upper right-hand ...

Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend.Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On May 6, 2021, the CPSC announced the following recall related to a product that presents a fire-related risk:

Kidde Recalls TruSense Smoke and Combination Smoke/Carbon Monoxide Alarms Due to Risk of Failure to Alert Consumers to a Fire.

According to the CPSC ... Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On May 5, 2021, the CPSC announced the following recall related to a product that presents a fire hazard:

Scott Fetzer Consumer Brands Recalls Multi-Use Water Pumps Due to Fire and Shock Hazards.

According to the CPSC, “[i]f water gets into the electrical circuit ... Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On April 28, 2021, the CPSC, PTAC Crew and PTAC USA warned consumers regarding units that PTAC Crew and PTAC USA refurbished and resold after they were previously recalled between 2004 and 2018. The recall relates to packaged terminal air conditioner (PTAC), packaged ... Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On April 28, 2021, the CPSC announced the following recall related to a product that presents a fire hazard:

Pool Heaters Recalled by Pentair Water Pool and Spa Due to Fire Hazard.

According to the CPSC, “[a] connection in the heater can leak the combustible air-gas ... Continue Reading