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The certificate of merit rule does not apply to a products liability claim involving defective design by a licensed professional engineer.

January 1, 2010
French v. Commonwealth Associates, Inc., 980 A.2d 623 (Pa.Super. 2009)

The decedent died in a work accident when he became trapped in a "dog box" in a power plant that was designed by the defendant. The plaintiff's complaint alleged negligence, breach of warranty, and strict products liability against the defendant, a licensed professional engineer. The court was required to distinguish between the claims that sounded in professional negligence (Certificate of Merit ("COM") needed) and products liability/breach of warranty (no COM needed). For the professional negligence claim, the plaintiff must prove the engineer's conduct fell below the relevant standard of care. For the products liability claim, the plaintiff must only prove that the product was defective and that the defect was the proximate cause of the harm. The distinction is the focus on the engineer's conduct in the professional negligence claim and the focus on the product for the products liability claim. Unlike professional liability claims, negligence concepts have no place in a case based on strict liability, and as the proof to be presented in the products case focuses on the product and not the engineer's conduct, a COM was not needed for the product liability claims asserted in the complaint.

Case Law Alert - 1st Qtr 2010

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Gregory J. Kelley
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gjkelley@mdwcg.com

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