United States District Court, E.D. Pennsylvania
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.
STATEMENT OF FACTS
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. 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.
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.
STANDARD OF REVIEW
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).
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.
Plaintiff's Strict Product Liability Claim
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.
Failure to Warn
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.
Design and ...