Larry E Coben

January 25, 2019 | The Legal Intelligencer

The marketing of safe products should ordinarily include all the available safety features warranted to protect consumers from harm. When a manufacturer decides to make safety an option, then it takes the risk that it will be liable for harm caused by putting profits before safety.

By Larry E. Coben

10 minute read

November 11, 2018 | The Legal Intelligencer

When Pennsylvania judicially adopted strict liability in tort for the manufacture, sale or lease of a defective product, it embraced Section 402A of the Restatement of Torts 2d.

By Larry E. Coben

7 minute read

May 03, 2018 | The Legal Intelligencer

On April 19, two venerable defense attorneys, Gerry Cedrone and Eugene Hamill of Lavin, O'Neil, Cedrone & DiSipio, published an article in the Legal Intelligencer which provided a host of thoughtful but differing constructs of the current state of the law,

By Larry E. Coben

11 minute read

September 15, 2017 | The Legal Intelligencer

Actor Will Smith, as Dr. Bennett Omalu, had the theatrical liberty to postulate that repetitive helmeted/head impacts on the football field caused Mike Webster, Justin Strzelczky, Andre Waters and Dave Duerson to take their lives; he charged that they took their lives after they became emotionally unstable because they suffered from chronic ­traumatic encephalopathy (CTE). That theatrical assertion was first chronicled and scientifically postulated by Omalu in a published paper in 2010, when he introduced the notion that suicidality was a clinical feature of CTE.

By larry E. Coben

8 minute read

August 10, 2017 | The Legal Intelligencer

Automobile manufacturers are legally obligated to design, build and sell vehicles that are crashworthy, as in Gaudio v. Ford Motor, 926 A. 2d 524 (Pa. Super. 2009), appeal den., 989 A. 2d 917 (2010). Crashworthiness is the designed protection a vehicle affords occupants against injury or death in a collision, as in Harsh v. Petroll, 840 A.2d 404, 417-418 (Pa. Commwlth 2003). If a motorist or passenger is involved in a collision and she suffers enhanced injuries, the vehicle manufacturer will be liable for those injuries—if the producing harm was caused by a defective design, as in Hutchinson v. Penske Truck Leasing, 876 A. 2d 978 (Pa. Super. 2005), aff'd. 592 Pa. 38 (2007). Before the 2011 amendments to the Pennsylvania Comparative Negligence Act, the tortfeasor causing the accident and the tortfeasor-manufacturer whose product enhanced the injuries were jointly and severally liable. Thus, if a jury found the offending driver 80 percent liable and the vehicle's faulty design 20 percent liable (for the purpose of perfecting a claim for contribution) for the enhanced injury, the victim could recover the full amount of the verdict from either party. However, in 2011, the legislature altered the common law and passed 42 Pa. C. S. 7102 (a.1) and (a.2) to establish several liability based upon jury apportionment of each defendant's liability, 42 Pa. C. S. 7102 (a.3) allows for joint and several status of a defendant found "not less than 60 percent" liable. The question that has not been addressed in connection with the doctrine of crashworthiness is whether apportionment of liability is appropriate when the plaintiff's harm is divisible or indivisible? As set forth below, the most logical answer is: no.

By Larry E. Coben

8 minute read

January 31, 2017 | The Legal Intelligencer

In 2014, the Pennsylvania Supreme Court revved its engine and took a step "back to the future." In Tincher v. Omega Flex, 104 A. 3d 328, the court re-defined products liability law, embracing two definitional tests articulated in 1965 in the Restatement of Torts 2d, Section 402A. These tests are labeled the "consumer expectation test," (CET) and the "risk benefit test," (RBT). Despite this change, the court emphasized the distinctions between strict products liability and negligence: "the tortious conduct at issue is not the same as that found in traditional claims of negligence and commonly associated with the more colloquial notion of "fault." In this sense, introducing a colloquial notion of fault into the conversation relating to strict products liability in tort detracts from the precision required to keep this legal proposition within rational bounds."

By Larry E. Coben

17 minute read

September 07, 2016 | The Legal Intelligencer

Motor vehicles in all shapes and sizes are being developed to function autonomously. Autonomous vehicles (AVs) are in the news every day. Vehicle manufacturers, giants in the computer industry, government agencies and consumer-safety advocates alike have been touting the advent of AVs, and their potential to reduce motor vehicle accidents, injuries and deaths. What lingers like a dark storm cloud are questions about how these machines should be regulated to assure the public that these robotic machines are safe and fool-proof.

By Larry E. Coben

13 minute read

August 26, 2016 | The Legal Intelligencer

The American consumer is ­bombarded with TV, internet and print advertisements extolling the features of thousands of products ranging from motor vehicles to smartphones. Today's marketing practices focus on the most distinct features of each product and barely mention that many of these features can only be acquired if the consumer selects the most expensive version of the product. In marketing parlance some have referred to this as the "freemium" business model (a ­combination of "free" and "premium," Kumar, V., "Making 'Freemium' Work", Harvard Business Review, May 2014).

By Larry E. Coben

15 minute read

December 30, 2014 | The Legal Intelligencer

In announcing its long-awaited decision in Tincher v. Omega Flex, 2014 Pa. LEXIS 3031, the state Supreme Court ruled that Pennsylvania's 40-year-old case law should be reformulated. Unfortunately, the court's effort in Tincher may not have succeeded in bringing clarity and a universally workable definition of product defect to the state.

By Larry E. Coben, James R. Ronca and Sol H. Weiss

9 minute read

December 09, 2014 | The Legal Intelligencer

In a sweeping, detailed opinion, the Pennsylvania Supreme Court altered the landscape of Pennsylvania products liability law, reaching back in time to embrace and then update legal principles governing a consumer's burden of proof in recovering for harm caused by a defectively designed product.

By Larry E. Coben, Sol H. Weiss and James R. Ronca

9 minute read