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ZK Result – Pennsylvania Superior Court Affirms Entry of Compulsory Non-Suit Obtained by Joseph W. Selep and Joseph F. Butcher

On February 28, 2017, the Pennsylvania Superior Court in Dolby v. Ziegler Tire and Supply Company, et al. affirmed the Court of Common Pleas of Allegheny County’s entry of a compulsory non-suit in favor of the defendants. Plaintiffs alleged that a coal truck accident occurred as a result of an allegedly defective retreaded truck tire on the steering axle of a coal truck.  Plaintiffs alleged that the truck tire failed and/or blew out and then the truck crashed into the median and rolled over resulting in significant personal injuries to the truck driver.


Plaintiffs proceeded against the tire retreader and supplier represented by Zimmer Kunz’s Joseph W. Selep and Joseph F. Butcher, as well as against the original tire casing manufacturer represented by other counsel.  Plaintiffs ultimately pursued the case only on strict products liability for failure-to-warn in accordance with Restatement (Second) of Torts § 402A.  Plaintiffs presented their case, including several eyewitnesses to the accident, the Plaintiff-truck driver, expert witnesses on damages, as well as Plaintiff’s liability expert witness.  The liability expert was submitted as an expert in heavy truck mechanics and forensic mechanics.  At the conclusion of the Plaintiffs’ case, including extensive cross-examination of the Plaintiffs’ liability expert witness, Defendants moved for compulsory non-suit, as Defendants asserted that Plaintiffs did not establish a prima facie case under a failure-to-warn theory.


The argument advanced by Defendants asserted that Plaintiff’s liability expert’s failed to identify a specific cause for the blow-out of the retreated tire, that the expert conceded that factors beyond the construction and manufacturing of the tire could cause a blow-out, that the expert did not state that the tire failure occurred because it was a retreaded tire, and that the expert was not a warnings or human factors expert.  After reviewing the evidence presented in the record and extensive oral arguments, the trial court agreed with the Defendants and entered compulsory non-suit in their favor and dismissed the case.


On appeal, the Superior Court rejected Plaintiffs’ arguments and held that (1) the Plaintiffs failed to establish all elements of their failure to warn case; (2) the malfunction theory was not applicable to this failure to warn case, and (3) the heeding presumption was not applicable to this case.