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Sidestepping the question of whether strict products liability and negligence claims are separate causes of action for the purposes of design-defect cases, the Pennsylvania Supreme Court has reversed the Superior Court on procedural grounds in an appeal that stems from a $4 million Philadelphia verdict. In Straub v. Cherne Industries, a construction worker claimed he was injured on the job by an industrial sewage pipe plug because the manufacturer negligently failed to test the product in the field, failed to include a pressure-relief valve and provided an inadequate manual for its operation. A Philadelphia jury returned a $4 million verdict for Douglas Straub in 2002, finding Cherne was negligent as to the plug’s design and product warnings. But the jury rejected Straub’s claim that Cherne’s product was defective. The jury in Straub was told by the trial court that it could find Cherne liable on either, both or neither cause of action. In his 2003 lead opinion in Phillips v. Cricket Lighters, Chief Justice Ralph J. Cappy argued that the failure of a particular design-defect claim at trial does not mean that a negligent-design claim must fail as well. Cappy reasoned in Phillips that strict products liability and negligence claims should be subject to separate analysis because the doctrine of strict liability does not concern itself with the conduct of the manufacturer (a determining factor in negligence law). But the Superior Court panel that decided Straub, in an unpublished opinion, said it didn’t have to follow the high court’s 2003 ruling because Phillips “did not generate a majority opinion,” and, therefore, the court was not bound to follow it. In an opinion filed Tuesday, Cappy wrote on behalf of a six-justice majority that Cherne had failed to follow Pennsylvania Rule of Civil Procedure 227.1, which directs that those seeking post-trial relief — including a judgment n.o.v. — had to have objected at trial to the issue upon which their appeal is based, otherwise that issue is waived. (Justice Sandra Schultz Newman did not participate in the decision.) Cherne sought j.n.o.v. in a post-trial motion filed roughly 10 days after the jury returned with its verdict. In its motion, it argued that the jury’s verdict as to the negligence claim could not be allowed to stand given the conclusion that the product was not defective. Straub had asserted on appeal that Cherne should have raised that issue by objecting to the trial court’s jury instructions when the verdict sheets were drafted, or, at the latest, by objecting to the verdict immediately after it was rendered. “Cherne is not arguing that the verdict cannot stand because a reasonable jury could not have found Cherne negligent based on the evidence that [Straub] introduced at trial,” Cappy wrote. “Rather, Cherne is arguing that once the jury found that [Cherne's pipe plug] was not defective, there was nothing left for the jury to do, inasmuch as all [of Straub's] evidence in negligence related to the design of and warnings on the product, and the jury should have found in Cherne’s favor.” The justices held that the Superior Court should not have ruled that Cherne’s main point of appeal had not been waived merely because of the lack of clarity in applicable products liability law. “[Rule 227.1's] mandate applies evenly in all cases, regardless of whether the area of the law is unsettled,” Cappy wrote. “Moreover, by its nature, the rule’s contemporaneous objection requirement is imposed on the party who seeks to claim that post-trial relief is warranted due to an error that occurred at trial. In this case, that party was Cherne.” Attorneys involved in Straub at the appellate level said the substantive issue presented by the case will have to be addressed by the justices at some point. “There are still some substantial issues out there,” said Frank Murphy of Murphy Woodward & Haskins in Norristown, Pa., who was counsel in the matter for the Pennsylvania Trial Lawyers Association, which was granted amicus standing in the matter. James Beck of Dechert, who was counsel for amicus Product Liability Advisory Council, described the court’s decision as a “non-event” that did not deal with the issues his group had raised on appeal. Straub’s lawyer, Thomas Duffy of Duffy & Keenan, said he was pleased with the decision, but acknowledged that it leaves untouched a gray area of Pennsylvania products liability law. “Good courts don’t go to the broader issue when they don’t have to, and that’s what [the court] did here,” Duffy said. “The waiver was pretty evident, and that’s what they found.” Cherne’s appellate attorney, Daniel Hessel of Cozen O’Connor, said he has been on trial and has not had a chance to review the decision.

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