What Does Medical Malpractice Have to Do with Products Liability?
Edward R. Kennett, Esquire

The investigation of a potential automobile products liability case involves an analysis of the facts and pertinent legal, engineering and medical principles. As in any case, plaintiff’s counsel must consider carefully the burden of proof and how that burden will be met. Unfortunately, Pennsylvania courts have yet to provide definitive guidance in the area of crash worthiness litigation.

In Kupetz v. Deere & Co., Inc., 644 A.2d 1213 (Pa.Super. 1994), the court held that the crashworthiness doctrine applies in Pennsylvania. This doctrine provides that a manufacturer is liable where the defect did not cause the accident but increased the severity of the injuries. Along with the usual product liability proof requirements, Kupetz requires a plaintiff to prove “some method of establishing the extent of plaintiff’s enhanced injuries attributable to the design defect.” Kupetz, 644 A.2d at 1218.

Based on Kupetz, manufacturers contend plaintiffs must quantify the enhanced injuries attributable to the defect and that they are responsible only for those injuries. While the Kupetz court adopted the Huddell v. Levin, 537 F.2d 726 (3rd Cir. 1976), “enhanced injury” burden for plaintiffs, it did not provide analysis as to the level of proof required. It is here that Pennsylvania medical malpractice law may benefit plaintiffs.

Plaintiffs in crashworthiness and medical malpractice cases face the same defense the plaintiff would have suffered the harm even in the absence of the tortfeasor’s conduct. In medical malpractice cases, Pennsylvania courts recognize it is unjust to require plaintiffs to apportion cause because medical certainty is often unobtainable. Accordingly, the defendant is responsible for all the harm if the plaintiff proves the increased risk of harm resulting from the defendant’s negligence was a substantial factor in the harm suffered. The plaintiff need not prove harm would not have occurred if the defendant had not been negligent. Hamil v. Bashline, 392 A.2d 1280, 1288 (Pa. 1978).

The insurmountable burden of apportioning the cause is why the majority of states do not require plaintiffs to quantify the enhanced injuries in crashworthiness cases. See, Restatement (Third) of Torts §16, Reporters’ Notes (1998). Further, the majority approach has been adopted in the Restatement (Third) of Torts §16(c) (1998). Rather than quantifying the enhanced injuries, the plaintiff must prove that the defect was a substantial factor in increasing plaintiff’s injuries. The Restatement notes:

The task of determining what harm would have resulted had the product not been defective is often difficult. Outright guesswork is not permitted, but neither should anything approaching certainty be required.

...the task of allocating causal responsibility in enhanced injury cases is a difficult one and certainty in apportionment often is not attainable...Thus, if a plaintiff establishes that product defect was a substantial factor in increasing the harm suffered by the plaintiff beyond that which would have resulted from other causes, then the [manufacturer] is liable for all the harm suffered by the plaintiff...