Oh, Baby

It's been several weeks since we've posted. What can we say? Work, summer weather, and a lack of interesting (to us, at least) news have conspired against us.

Today we finally were moved to post after reading the Honorable Anita Brody's (E.D. Pa) decision granting class certification in McDonough v. Toys "R" Us.

Judge Brody's decision is of interest because the subclasses it certifies allege that Babies "R" Us (of which Toys "R" Us is the parent) conspired with makers of pricy baby products to restrict competition in violation of federal antitrust laws. In certifying the class, the court applied Leegan Creative Leather Products, the 2007 Supreme Court case that held vertical price restraints are not per se illegal but must be evaluated by the court under the "rule of reason."

Also interesting is that the court relied on testimony of economic experts to determine that the plaintiffs satisfied their Rule 23 burden under In re: Hydrogen Peroxide Antitrust Litigation, a fairly recent Third Circuit decision that clarified that more than a threshold showing is required for certification.

The nature of the claims, the costs of the products at issue (Peg Perego and Maclaren strollers, Britax carseats, the BabyBjorn carrier, Medela breastpumps, and Kidsline bedding), and the potential size of the class lead us to believe this case bears watching.

Will PA Expand Products Liability Claims?

Last month, the Third Circuit anticipated that the Pennsylvania Supreme Court would abandon Pennsylvania's particularly strict strict liability standard in favor of the standard set forth in the Restatement (Third) of Torts.  In Berrier v. Simplicity Manufacturing, Inc., the Third Circuit considered whether a five-year-old girl who was injured when her grandfather backed over her foot with a riding lawnmower could recover under Pennsylvania’s strict products liability law.  The lawnmower in question was not equipped with back-over protection.

The Third Circuit predicted that, if confronted with the question, the Pennsylvania Supreme Court would afford a bystander who was not the intended user of a product a strict liability cause of action to recover for injuries sustained while an intended user was operating the manufacturer’s product.  This outcome is consistent with the Third Restatement position but represents a departure from Pennsylvania state law.

Manufacturers will want to watch what the Pennsylvania Supreme Court does in the pending case, Bugosh v. I.U. North America, Inc., 942 A.2d 897 (Pa. 2008), which presents this very question.