Pennsylvania Court Dismisses Several Defendants from Product Liability Action Where Plaintiff Pled “More Likely Than Not” the Seller and/or Distributor of the Allegedly Defective Product | Marshall Dennehey

The plaintiff alleged he suffered injuries to his scalp from the application of a defective mole removal cream. His complaint alleged specific facts that the cream had been purchased from Amazon.com, but, in the alternative, if he did not purchase the cream from Amazon.com, he purchased it at Walmart, Target or eBay. Specifically, the only facts pled regarding entities other than Amazon.com were: “[T]o the extent Amazon was not the seller of the subject product, it is averred that Defendant [WalMart, Target, or eBay] is more likely than not the seller and distributor of the Amada Pure Skin Tag and Mole Removal Cream….” All four defendants filed motions to dismiss, arguing, in part, that it was logically impossible that all four retailers sold the subject cream that was applied to the plaintiff’s scalp. The court, citing to the specific facts pled by the plaintiff regarding Amazon.com, including that his barber told him it was purchased from Amazon.com and that it was delivered on an Amazon truck, denied Amazon’s motion to dismiss. However, as to WalMart, Target and eBay, the court took issue with the fact that the plaintiff simply pled that if Amazon did not sell it, then it must have been sold by WalMart, Target or eBay. As there were no specific facts pled about any of these entities, and Pennsylvania courts are reluctant to apply market share liability, the court dismissed the claims against those three entities.

This case highlights that, while there is a “relatively low” bar to the federal notice pleadings requirements, it is not without limits. Where a plaintiff’s complaint in federal court lacks any factual averments leading to the plausibility of the plaintiff’s cause of action, defense counsel must file a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure.