E.D. Pa Delivers Dismissal of Product Legal responsibility Claims vs. Retailers

A very long time in the past, after we had been moist behind the ears and nonetheless nervous in regards to the prospect of drafting and arguing dispositive motions, we labored for a senior companion who taught us that clear writing flowed from clear pondering.  If that’s true (and it’s), then the opinion in McKnight v. Amazon.com Inc., 2024 U.S. Dist. LEXIS 86501 (E.D. Pa. Might 14, 2024), will need to have been authored by a thoughts with shimmering readability (and it was).  Decide Pratter was considered one of our favourite judges anyplace. We greive at the usage of “was.” We had been shocked and saddened to study that Decide Pratter handed away final Friday. Her demise is a gigantic loss for the Philadelphia authorized group and past. Decide Pratter ran the College of Pennsylvania Inn of Court docket with unusual grace.  She cherished to see younger legal professionals get an opportunity to shine.

Decide Pratter’s writing all the time sparkled with lightning readability. It additionally often thundered with devastating humor.

Right here is how the McKnight opinion begins:  

“Amazon.com is a web site that has oftentimes been referred to as “The Every little thing Retailer.” See, e.g., Brad Stone, The Every little thing Retailer: Jeff Bezos and the Age of Amazon (Hachette E book Group 2013). Jamie McKnight,when he went to go to his barber Tyrese Skinner in Philadelphia, allegedly suffered accidents when Mr. Skinner utilized a mole removing cream to his scalp.

Mr. McKnight alleges that Mr. Skinner purchased the mole removing cream from Amazon.com. Or if not from Amazon, then he purchased it from WalMart. Or if not from Amazon, then from Goal. Or if not from Amazon, then from eBay. In different phrases, Mr. McKnight has usual his criticism as its personal sort of every part retailer, the place every retailer will need to have been the one who bought the mole removing cream. In doing so, Mr. McKnight has solely marginally pled a adequate case towards Amazon, and as for the others, Mr. McKnight’s cart consists of solely hypothesis and implausibility. Thus, the Court docket grants Goal’s, WalMart’s, and eBay’s motions to dismiss.” 

Some judges simply know easy methods to write.  (Good writing is just not tied to ideology.  The 2 finest writers on SCOTUS during the last couple of a long time have been Justices Kagan and Scalia, and it’s laborious to consider judges extra completely different in outlook.) 

So now we have a plaintiff who claimed that he purchased what appears like an OTC drug (“mole removing cream”) from no fewer than 4 completely different and unbiased retailers.  That declare defies the legislation of TwIqbal and the legislation of physics.  He sued the barber and the producer, together with the retailers. The case was initially filed within the Philadelphia Court docket of Widespread Pleas after which was eliminated to federal courtroom.  The courtroom denied the plaintiff’s movement to remand to state courtroom. The plaintiff amended the criticism – greater than as soon as.  Now in entrance of the courtroom was the plaintiff’s Second Amended Grievance, which included strict legal responsibility claims and “negligence and recklessness” claims towards the retailer defendants.  The retailers moved to dismiss the Second Amended Grievance.

When the courtroom held that the claims towards Amazon had been “marginally” believable, the phrase “marginally” was doing quite a lot of work. To the extent the Second Amended Grievance’s naming of a number of retailers reached towards a principle of market share legal responsibility – which “Pennsylvania courts are reluctant to use – the plaintiff created sufficient uncertainty to make the claims towards Amazon look rickety.  However the plaintiff did at the least seek advice from some stray information suggesting that the barber obtained supply of the mole removing cream from Amazon (the cream was allegedly bought on an Amazon web site and was delivered on an Amazon truck), so the declare lived to see one other day.  However as to the opposite three alleged sellers, no information had been pleaded.  All of the plaintiff provided had been a collection of an identical recitations of the weather of the reason for motion, with a conclusion that every retailer “extra probably than not” was a vendor.  That’s not near being adequate.  The plaintiff should determine the vendor of the allegedly faulty product. Whereas various pleading may be advantageous and good, it should meet the final plausibility commonplace.  The plaintiff tried to protect his claims towards the non-Amazon retailers by insisting that these defendants had “not offered any verifiable proof” that they weren’t the sellers of the product.  That formulation (redolent of discredited market share legal responsibility) will get the burden all backwards after all.  The courtroom raised a “judicial eyebrow” at this argument, and rejected it as a result of it couldn’t overcome the absence of information within the Second Amended Grievance.   Accordingly, the courtroom dismissed the claims towards the non-Amazon retailers.  That dismissal was with prejudice as a result of additional modification could be futile.

Then the McKnight courtroom set about trimming away a number of the claims towards Amazon.  For instance, the plaintiff alleged that Amazon continued to promote the cream after the plaintiff’s incident, regardless of allegedly being conscious of the hazards posed by the cream.  However “Pennsylvania legislation doesn’t acknowledge an obligation to recall or retrofit merchandise,” so allegations relating to post-sale conduct had been stricken.  The plaintiff additionally included a declare that Amazon was reckless, however there is no such thing as a separate reason for motion for recklessness below Pennsylvania legislation. Lastly, the courtroom addressed the plaintiff’s declare for punitive damages.  The one foundation cited by the plaintiff for this declare was that Amazon’s webpage allegedly “intentionally hid/hid or made much less seen opinions which revealed that the [mole removal cream] causes burning and scarring….”  As soon as once more, the courtroom raised a judicial eyebrow at this assertion.  (Which isn’t to say that the courtroom was being supercilious.) The courtroom had “vital reservations” that the punitive damages declare might survive.  Solely “excessive and brazen circumstances would assist a declare for punitive damages primarily based on the default methodology Amazon makes use of to type product opinions.”  It’s laborious to consider that Amazon would, in an “on-line market that sells tons of of thousands and thousands of merchandise” [our household personally accounts for approximately half of them] hassle or handle to “conceal detrimental opinions of this one particular merchandise,” however the plaintiff would get the prospect to strive.

We share the courtroom’s skepticism as as to if the plaintiff will finally be capable of ship the products.  .

We are going to miss Decide Pratter. We already do.