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Tihansky v. Edizone, LLC

United States District Court, E.D. Pennsylvania

July 10, 2019

JEFFREY TIHANSKY, Plaintiff,
v.
EDIZONE, LLC, Defendant.

          MEMORANDUM

          TUCKER, J.

         Presently before the Court is Defendant Edizone, LLC's Motion for Summary Judgment (“Motion”) (ECF No. 10), Plaintiff's Reply in Opposition (ECF No. 14), Defendant's Sur-Reply (ECF No. 17), Defendant's Memorandum in Support (ECF No. 19), and Pl.'s Sur-Reply (ECF No. 22). Upon careful consideration of the Parties' submissions and exhibits, and for the reasons set forth below, Defendant's Motion is DENIED.

         I. STATEMENT OF FACTS

         Plaintiff Jeffery Tihansky (“Plaintiff”) suffers from multiple sclerosis and neuromyelitis optica. Compl. ¶¶ 9-10, ECF No. 1. As a result of Plainitff's condition, he suffers decreased sensation.[1] Compl. ¶ 10. Plaintiff purchased the Roll-N-Go Seat (“Wondergel Cushion” or “Cushion”) on January 8, 2016. Compl. ¶ 11, ECF No. 1. The Wondergel Cushion “provides immediate, continuous cushioning with . . . support, and variability;” it “is easy to roll up and take with you on the go.” Ex. A, ECF No. 22; Compl. ¶ 6, ECF No. 1. On June 25, 2016, Plaintiff placed the Wondergel Cushion onto his motor scooter, then transferred the scooter to his van. Compl. ¶ 16. The scooter, and Wondergel Cushion stayed in the van. Compl. ¶¶ 17-19. Plaintiff later returned to his van and transferred back onto the scooter. Compl. ¶ 17. It is unclear how long the Cushion was in the van, and how long Plaintiff sat on the Cushion. However, “as a result of the prolonged exposure to the [Wondergel Cushion], [P]laintiff suffered serious and permanent injuries.” Compl. ¶ 19. Due to his medical conditions, Plaintiff did not feel the temperature of the Wondergel Cushion as he was utilizing his scooter; consequently, Plaintiff suffered second degree burns on his buttocks. Compl. ¶¶ 9-10, 25.

         On December 1, 2017, Plaintiff filed this product liability claim against Defendant Edizone, LLC (“Defendant”) alleging strict liability, breach of the implied warranties of merchantability and fitness for a particular purpose, and negligence. Compl. ¶¶ 31-49. Defendant filed its Motion for Summary Judgment on August 24, 2018. Def.'s Summ. J. Mem., ECF No. 10. Defendant argues that “Purple Innovation, LLC, formerly known as Wondergel, LLC developed, manufactured and/or marketed the [Wondergel Cushion].” Def.'s Summ. J. Mem. 2. Defendant seeks summary judgment in its favor arguing that it did not develop, manufacture and market the Wondergel Cushion. Def.'s Summ. J. Mem. 3. Furthermore, Defendant argues, Plaintiff's claims should be dismissed given Plaintiff's spoliation of evidence. Def.'s Summ. J. Mem. 7.

         II. STANDARD OF REVIEW

         Upon consideration of the pleadings, depositions, and admissions on file, summary judgment is proper when the movant shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A material fact is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “An issue is genuine only if a reasonable jury, considering the evidence presented, could find for the non-moving party.” Surace v. Caterpillar, Inc., 111 F.3d 1039, 1043 (3d Cir. 1997) (internal quotation marks omitted). If the moving party meets its burden and shows there is no genuine issue of material fact, the party opposing summary judgment “may not rest upon the mere allegations or denials of his pleading, but … must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)). The court must review the evidence presented in the light most favorable to the nonmoving party. Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997).

         III. DISCUSSION

         Defendant seeks summary judgment on Plaintiff's claims for strict liability, breach of the implied warranties of merchantability and fitness for a particular purpose, and negligence. Def.'s Summ. J. Mem. 3, ECF No. 10. Defendant argues that it did not develop, manufacture or sell the Wondergel, thus it cannot be liable for Plaintiff's injuries. Def.'s Summ. J. Mem. 4-6. Furthermore, Defendant argues that this matter should be dismissed with prejudice “given Plaintiff's spoliation of the evidence.” Def.'s Summ. J. Mem. 7. For the reasons that follow, Defendant's Motion is DENIED.

         A. Plaintiff's Strict Product Liability Claim

         Strict liability is premised on the theory that “those who sell a product (i.e., profit from making and putting a product in the stream of commerce) are held responsible for damage caused to a consumer by the reasonable use of the product.” Tincher v. Omega Flex Inc., 104 A.3d 328, 385 (Pa. 2014). In product liability cases that are premised on strict liability, Pennsylvania follows § 402A of the Second Restatement of Torts. Id. at 357. Under § 402A, a plaintiff may recover damages “where a product in a defective condition[, ] unreasonably dangerous to [a] user or consumer, ” causes him harm. Phillips v. A-Best Prods., Co., 665 A.2d 1167, 1170 (Pa. 1995) (internal citations omitted). To prevail on a strict liability claim under § 402A, a plaintiff must show that: 1) the product was defective; 2) the defect proximately caused plaintiff's injury; and 3) the defect existed at the time the product left defendant's control. Tincher, 104 A.3d at 357. Three types of defective conditions can give rise to a product liability claim: 1) failure to warn, 2) design defects, and 3) manufacturing defects. A-Best Prods., 665 A.2d at 1170. Plaintiff argues each of the above claims; the Court will first analyze the failure to warn claim and conclude with a joint analysis for the design and manufacturing defects claims.

         i. Failure to Warn

         A plaintiff bringing a failure to warn claim is arguing that the “product was distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product.” Id. at 1171 (internal citations omitted). The plaintiff must show “that the product was sold in a defective condition unreasonably dangerous to [a consumer], and [] the defect caused plaintiff's injury.” Id. (internal citations omitted). In this context, a product is defective if the warning it does entail is inadequate, or if it is lacking a warning altogether. Id. A defect is the cause of plaintiff's injury if plaintiff would have avoided the product had the seller warned of the danger. Id.

         ii. Design and ...


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