heeding presumption in Pennsylvania

2014Next, McNeil asserts it is entitled to a new trial because the tidal court erred by failing to give a heeding presumption instruction to the jury. “[I]n cases where warnings or instructions are required to make a product non-defective and a warning has not been given, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning, and that the defendant, in order to rebut that presumption, must produce evidence that such a warning would not have been heeded.” Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 621 (Pa.Super.1999), appeal g

2004In order to rebut the heeding presumption, the defendant need only produce evidence “sufficient to support a finding contrary to the presumed fact.” Coward, 729 A.2d at 621 . ¶ 9 In this case, the record contained evidence that Gilbert Goldstein continued smoking long after federally-mandated warnings of the dangers of cigarette smoking appeared on packages in 1969.

2017Finally, the Dolbys’ reliance upon the heeding presumption doctrine is misplaced as the doctrine “has been authorized in Pennsylvania only in cases involving workplace exposure to asbestos.” Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 537 (Pa. Super. 2003); see also Moroney v. Gen.

2004In Viguers v. Philip Morris USA Inc., 837 A.2d 534 (Pa.Super.2003), we held that while the heeding presumption has been authorized in asbestos cases in Pennsylvania, 1 it does not apply in the context of this case, which involves the voluntary choice of a smoker to begin and continue smoking tobacco.

2014“If the defendant produces evidence that the injured plaintiff “was fully aware of the risk of bodily injury, or the extent to which his conduct could contribute to that risk,’ the presumption is rebutted and the burden of production shifts back to the plaintiff to produce evidence that he would have acted to avoid the underlying hazard had the defendant provided an adequate warning.” Coward, 729 A.2d at 622 (quoting Pavlik v. Lane Limited/Tobacco Exporters International, 135 F.3d 876, 883 (3d Cir.1998)).

2005See id.

1999The court explained its ruling as an affirmation that the test for causation must address the factual cause of the plaintiff’s injuries: “Evidence that a plaintiff would have disregarded an adequate warning would tend to demonstrate that the plaintiffs conduct, rather the absence of a warning, was the cause in fact of the resultant injury.” Id. at 721 . ¶ 14 Upon review of failure-to-warn defect cases in Pennsylvania, including those cited by Owens-Corning, we find that the fundamental concern with causation in fact that compelled New Jersey’s adoption of the heeding presumption, is inherent i

1999Compare Coffman, supra at 603, 628 A.2d 710 . ¶ 18 The United States Court of Appeals for the Third Circuit has explained concisely the operation of the presumption: While the heeding presumption benefits a failure to warn plaintiff, it does not change the fact that he still bears the burden of persuasion on the causation prong of his § 402A claim.... [T]he heeding presumption [is] rebúttable, and thus, when the opponent of the presumption has met the burden of production thus imposed ... the office of the presumption has been performed; the presumption is of no further effect and drops from t