DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

COMMONWEALTH OF PENNSYLVANIA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Pennsylvania ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the Commonwealth of Pennsylvania

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]

RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Purchase Date/Location: [Date / Retailer Name]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement pursuant to Pennsylvania law.

I. PENNSYLVANIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Section 402A Strict Liability

Pennsylvania products liability claims are governed by Section 402A of the Restatement (Second) of Torts, as adopted and interpreted in the landmark case Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), which substantially revised Pennsylvania products liability law.

Key Elements for Strict Liability:
1. The defendant sold or placed into the stream of commerce a defective product;
2. The product was defective;
3. The defect was a cause of the plaintiff's injuries; and
4. The plaintiff suffered damages.

See Tincher, 104 A.3d at 399.

B. The Tincher Decision - Critical Framework

In Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court:
- Overruled Azzarello v. Black Brothers Co., 480 Pa. 547 (1978)
- Returned to a traditional Section 402A analysis
- Held that plaintiffs may prove defect under either the consumer expectations test or the risk-utility test
- Allowed juries to consider reasonableness of conduct and "negligent concepts"

C. Theories of Liability Recognized

Pennsylvania recognizes the following products liability theories:

1. Strict Liability (Section 402A):
Under Pennsylvania law, manufacturers and sellers are strictly liable for injuries caused by defective products. Tincher, 104 A.3d at 399.

2. Negligence:
Traditional negligence claims for negligent design, manufacture, inspection, or failure to warn. Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003).

3. Breach of Warranty:
Express and implied warranty claims under Pennsylvania's UCC, 13 Pa. C.S. Sections 2313 through 2315. Note: Pennsylvania requires strict privity for warranty claims.

D. Defect Standards Under Tincher

Post-Tincher, Pennsylvania uses two alternative tests for defect:

Consumer Expectations Test:
A product is defective if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Risk-Utility Test:
A product is defective if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. Factors include:
1. The usefulness and desirability of the product
2. The likelihood and probable seriousness of injury
3. The availability of a substitute product
4. The manufacturer's ability to eliminate the danger
5. The user's ability to avoid danger
6. The user's anticipated awareness of danger
7. The feasibility of spreading the loss

E. Statute of Limitations

Under 42 Pa. C.S. Section 5524, the statute of limitations for personal injury actions, including products liability, is two (2) years from the date of injury.

Discovery Rule: Pennsylvania applies the discovery rule; the limitations period begins when the plaintiff knew or reasonably should have known of the injury and its cause.

This claim arises from an injury that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

F. Statute of Repose

Pennsylvania does not have a general products liability statute of repose. Claims may be brought regardless of when the product was manufactured, provided they fall within the statute of limitations.

G. Comparative Fault

PENNSYLVANIA FOLLOWS MODIFIED COMPARATIVE FAULT.

Under 42 Pa. C.S. Section 7102, a plaintiff's recovery is reduced by their percentage of fault. Recovery is completely barred if the plaintiff's fault exceeds 50% (51% rule).

• Post-Tincher, comparative fault concepts apply in strict liability cases
• The jury may consider plaintiff's conduct in determining whether product was "defective"
• Product misuse and failure to follow warnings may be considered

Our client was not comparatively at fault: [Describe why client bears no or minimal fault]

H. Joint and Several Liability

Pennsylvania has modified joint and several liability under 42 Pa. C.S. Section 7102:
- Defendants more than 60% liable: Joint and several liability for all damages
- Defendants 60% or less liable: Several liability only (proportionate share)

I. Punitive Damages

Punitive damages are available in Pennsylvania upon proof that the defendant's conduct was:
- Outrageous
- Exhibited reckless indifference to the interests of others
- Was malicious or in wanton disregard of others' rights

Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005).

No Statutory Cap: Pennsylvania does not have a statutory cap on punitive damages.

II. PRESERVATION OF EVIDENCE - SPOLIATION WARNING

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:

Product-Related:
- [ ] The subject product and all component parts
- [ ] All exemplar products of the same make and model
- [ ] Design documents, specifications, and engineering drawings
- [ ] Manufacturing records for the subject product
- [ ] Quality control records and inspection reports
- [ ] Testing data and results (pre-market and post-market)
- [ ] Safety assessments and risk analyses
- [ ] FMEA (Failure Mode and Effects Analysis) documents
- [ ] All versions of owner's manuals, instructions, warnings, and labels

Regulatory and Complaints:
- [ ] Communications with FDA, CPSC, NHTSA, or other regulatory agencies
- [ ] Consumer complaints involving this product
- [ ] Prior claims and lawsuits involving this product
- [ ] Recall notices and service bulletins

Pennsylvania courts impose sanctions for spoliation of evidence. Schroeder v. Commonwealth Dept. of Transportation, 710 A.2d 23 (Pa. 1998). Destruction of evidence may result in adverse inferences and other sanctions at trial.

III. THE DEFECTIVE PRODUCT

A. Product Identification

B. Chain of Distribution

IV. THE DEFECT

A. Nature of Defect - Design Defect

Under Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), design defect may be proven under either test:

Consumer Expectations Test:
The ordinary consumer would expect that:
[Describe what consumer would expect]

The [Product Name] failed to meet these expectations because:
[Describe how product failed expectations]

Risk-Utility Test:
Applying the risk-utility factors:
[Apply factors to the specific case]

The [Product Name] contains a design defect in that:
[Detailed description of design defect]

Alternative Safer Design:
A feasible alternative design existed that would have prevented this injury:
[Describe alternative design]

B. Nature of Defect - Manufacturing Defect

A manufacturing defect exists when the specific product departed from its intended design, making it more dangerous than intended. The product at issue:
[Describe manufacturing defect if applicable]

C. Nature of Defect - Failure to Warn

Under Pennsylvania law, a manufacturer has a duty to warn of known dangers and dangers that should have been known through reasonable testing. Mackowick v. Westinghouse Electric Corp., 575 A.2d 100 (Pa. 1990).

Adequacy of Warnings:
A warning must be:
- Clear and understandable
- Convey the nature and extent of the danger
- Prominently displayed
- Adequate to inform the user how to avoid the danger

Learned Intermediary Doctrine: Pennsylvania recognizes this doctrine for prescription drugs and medical devices. Incollingo v. Ewing, 444 Pa. 263 (1971).

The warnings provided were inadequate because:
[Describe warning deficiencies]

V. THE INCIDENT

A. How the Injury Occurred

On [Date], at approximately [Time], our client was [describe what client was doing with the product]:

[Detailed narrative of the incident]

B. Foreseeable Use

Our client was using the product in a manner that was:
- [ ] Intended by the manufacturer
- [ ] Foreseeable by the manufacturer
- [ ] In accordance with provided instructions

C. No Comparative Fault

Our client exercised reasonable care at all times. Even if comparative fault is alleged, our client's conduct was not more than 50% at fault, and therefore recovery is not barred under 42 Pa. C.S. Section 7102.

VI. LIABILITY ANALYSIS

A. Strict Liability Under Section 402A/Tincher

All elements of Pennsylvania strict liability are satisfied:

1. Defective Condition: The product contained a [design / manufacturing / warning] defect as described above.

2. Defect Under Tincher: The product was defective under [the consumer expectations test / the risk-utility test / both tests].

3. Defect Existed When Product Left Defendant's Control: The defect was present at the time of sale.

4. Causation: The defect was a cause of our client's injuries.

5. Damages: Our client has suffered substantial damages as detailed herein.

B. Negligence

Your company breached its duty of care by:

1. Negligent Design: Designing a product with an unreasonably dangerous characteristic when safer alternatives existed.

2. Negligent Manufacture: Failing to implement adequate quality control procedures.

3. Negligent Failure to Warn: Failing to provide adequate warnings of known dangers.

C. Breach of Warranty

Note: Pennsylvania requires strict privity for warranty claims. This theory applies only if privity exists.

Express Warranty (13 Pa. C.S. Section 2313):
Your company expressly warranted that [describe warranty]. This warranty was breached.

Implied Warranty of Merchantability (13 Pa. C.S. Section 2314):
The product was not fit for its ordinary purpose due to the defect.

VII. PRIOR KNOWLEDGE OF DEFECT

Evidence of your company's prior knowledge of this defect includes:
- [ ] [Number] prior complaints regarding this defect
- [ ] [Number] prior injuries from this defect
- [ ] Recall or service bulletins issued
- [ ] Internal documents acknowledging the defect

Such prior knowledge supports an award of punitive damages for outrageous conduct and reckless indifference to consumer safety.

VIII. INJURIES AND DAMAGES

A. Injuries Sustained

As a direct and proximate result of the defective product, our client sustained:

Physical Injuries:
- [ ] [Injury 1]
- [ ] [Injury 2]
- [ ] [Injury 3]

Surgeries and Procedures:
- [ ] [Surgery 1]
- [ ] [Surgery 2]

Permanent Conditions:
- [ ] [Permanent condition 1]
- [ ] [Permanent condition 2]

B. Medical Expenses

Future Medical Expenses: $[Amount]

C. Lost Wages and Earning Capacity

D. Non-Economic Damages

• Physical pain and suffering
• Emotional distress
• Disfigurement
• Loss of enjoyment of life
• Inconvenience

E. Summary of Damages

F. Punitive Damages

Your company's conduct warrants punitive damages. Your company knew of the defect and acted with outrageous conduct and reckless indifference to consumer safety.

IX. SETTLEMENT DEMAND

Based upon the clear liability of your company under Pennsylvania law and the severe injuries suffered by our client, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for forty-five (45) days from the date of this letter, expiring at 5:00 p.m. Eastern Time on [Expiration Date].

X. CONCLUSION

This case involves a defective product that caused serious injuries to our client. Your company is strictly liable under Pennsylvania law as interpreted by Tincher v. Omega Flex. Our client was not comparatively negligent, or was 50% or less at fault, thus preserving the right to recovery.

If this matter cannot be resolved, we are prepared to file suit in the Court of Common Pleas, [County] County, Pennsylvania, and to pursue this matter through trial.

Please contact me at your earliest convenience.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Pennsylvania Bar ID No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

PENNSYLVANIA PRODUCTS LIABILITY PRACTICE NOTES

• [ ] Tincher Framework: The 2014 Tincher decision fundamentally changed Pennsylvania products liability law. Both consumer expectations and risk-utility tests are available to prove defect.

• [ ] Comparative Fault in Strict Liability: Post-Tincher, negligence concepts including comparative fault apply in strict liability cases.

• [ ] Modified Comparative Fault: Pennsylvania follows the 51% rule - plaintiff recovery barred if more than 50% at fault.

• [ ] Privity Required for Warranty: Pennsylvania requires strict privity for warranty claims, limiting this theory.

• [ ] Expert Testimony: Required to establish defect and causation in most cases. Pennsylvania uses a Frye-plus standard for expert admissibility.

• [ ] No Statute of Repose: Pennsylvania does not have a general products liability statute of repose.

• [ ] Venue: Court of Common Pleas in county where defendant resides or where cause of action arose. Pa. R.C.P. 1006.

• [ ] Joint and Several Liability: Modified based on 60% threshold. Defendants over 60% at fault are jointly and severally liable.

• [ ] Economic Loss Rule: Pennsylvania recognizes the economic loss doctrine - purely economic losses without physical injury generally require a contract remedy. Spivack v. Berks Ridge Corp., 586 A.2d 402 (Pa. Super. 1990).

• [ ] Medical Malpractice Certificate: If claim involves medical device, consider whether Certificate of Merit requirements apply under Pa. R.C.P. 1042.3.

Pennsylvania products liability law was substantially revised by Tincher v. Omega Flex (2014). This template must be reviewed and customized by a licensed Pennsylvania attorney before use.