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Commercial Litigation Quarterly – “Uncharted Waters Ahead: Pennsylvania Products Liability Post – TINCHER.”

product-liability-attorneyIn November of 2014, the Pennsylvania Supreme Court decided a landmark case in the area of products liability: Tincher v. Omega Flex, Inc., No. 17 MAP 2013, 2014 WL 6474923 (Pa. Nov. 19, 2014). In Tincher the court overruled the long-standing rule first articulated in Azzarello v. Black Bros. Co., 391 A.2d 1020, 1022 (Pa. 1978) that a reference to a product being “unreasonably dangerous” should not be included in a jury instruction on the issue of whether a product was defective because the phrase is misleading. Azzarello represented a seismic shift in Pennsylvania law; courts presiding over strict liability cases shifted to reflect an increasing concern with segregating strict liability and negligence concepts. This concern led to removing from jury instructions such time-honored tort concepts as “fault,” “reasonableness,” and “foreseeability.” In Tincher, not only did the court erase Azzarello and all of its progeny, but, like many other courts around the country, it refused to adopt the Third Restatement of Torts as an instructive source moving forward. Tincher at *62; see also Va. Prac. Tort and Personal Injury Law § 1:13 (Despite being published in 1998, to date few states have adopted the new Restatement in its entirety). As a result, a void has been created for Pennsylvania courts tasked with determining how products liability cases will be litigated in the wake of Tincher. For example, prior to Tincher evidence of industry standards in products liability actions was deemed inadmissible. See Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590 (Pa. 1987). The rationale was that evidence of industry standards speaks to the reasonableness of the defendant’s design choices and improperly brings in concepts of negligence law. Now that Azzarello is no longer controlling precedent, defendants have a renewed hope for the inclusion of such evidence. See, e.g., Cancelleri v. Ford Motor Co., No. 2011-CV-6060 (C.P. Lacka. Co. Jan. 9, 2015, Gibbons, J.) (unreported). In Cancelleri, defendant Ford Motor Company, argued in a post-trial motion that, in light of Tincher, it was a fundamental error for the trial court to preclude evidence of industry standards. The Lackawanna County court, among the first to examine and apply the analysis in Tincher, found Ford’s argument unpersuasive. The Tincher decision makes it clear that the new Pennsylvania standard for products liability will be a composite risk-utility/consumer expectation approach. Tincher at *65. Implementation of this standard, however, is less clear. First, the court explained that to establish a breach of duty in a strict liability matter, a plaintiff must prove that a seller (manufacturer or distributor) introduced into the market a product in a “defective condition.” Id. at *46. The seller of the product—whether the manufacturer or the supplier in the chain of distribution—implicitly represents by placing a product on the market that the product is not in a defective condition or unreasonably dangerous. Id. at *65. A defective condition can arise in three distinct ways: through manufacturing, by design, or through inadequate instruction or warning. Id. at *56. Tincher specifically addresses Pennsylvania’s standard for design defects; providing that “a plaintiff pursuing a cause upon a theory of strict liability in tort must prove by a preponderance of the evidence that the product is in a defective condition by showing either that: (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.” Id. at *62-65. This combines the consumer expectation approach with the risk-utility approach, either of which, if satisfied, establishes a “defective condition.” This standard raises several questions:  Is it possible for a plaintiff to proceed simultaneously under both theories? What are acceptable jury instructions for defining each test? What are the relevant legal and factual defenses? What types of evidence are admissible to support each theory? Does the theory elected by the plaintiff dictate what evidence may be presented to a jury at trial? The answer to these questions will be found in decisional law going forward that will apply Tincher to the facts before the trial court. In the meantime, attorneys can look to what has worked in other jurisdictions implementing similar standards. Under the consumer expectation approach, courts have found that the product is not defective if the ordinary consumer would “reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk of injury of which the plaintiff complains (e.g., a knife).” Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 230 N.W.2d 794, 798 (Wis. 1975). The nature of the product, the identity of the user, the product’s intended use and intended user, and any express or implied representations by a manufacturer or other sellers are among considerations relevant to assessing the reasonable consumer’s expectations. Tincher at *49. Under this approach, one of the most important elements of proof is evidence of the state of the art at the time a product is manufactured. Burch v. Sears, Roebuck & Co., 467 A.2d 615, 625 (Pa. Super. 1983). This helps to determine the expectation of the ordinary consumer. Id. (citing Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir.1976)). Relevant to show the state of the art are industry design standards, design guidelines adopted by authoritative voluntary associations, and design criteria established by legislation or administrative agency regulations, all of which were inadmissible pre-Tincher. As for the risk-utility calculus, factors considered by other jurisdictions attempt to balance the potential harm caused by the product with the costs associated with preventing this harm.  Some of the criteria identified by the courts that have addressed the issue include: (1) The usefulness and desirability of the product—its utility to the user and to the public as a whole. (2) The safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury. (3) The availability of a substitute product which would meet the same need and not be as unsafe. (4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. (5) The user’s ability to avoid danger by the exercise of care in the use of the product. (6) The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. (7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. Tincher at *52. Both the plaintiffs’ and defense bars have interpreted the Tincher decision as a victory for its side, which is a testament to the uncertainty spawned by the decision. As a party to a products liability case, either as a plaintiff, focusing on the plaintiff-friendly implications of the court’s refusal to adopt the Third Restatement, or a defendant, focusing on the defendant-friendly overruling of Azzarello, one thing is clear: the time is now to begin testing these uncharted waters.

About Gabriel Celii

Gabriel Cellii Mr. Celii devotes his practice to general litigation. He has experience working on all phases of litigation and on cases ranging from antitrust and false claims recovery to contract disputes. In this capacity he has primarily devoted his efforts to the uncovering of information in support of claims and defenses through targeted discovery. Mr. Celii also assists businesses engaged in employment related disputes and negotiates settlements on their behalf. He has successfully enforced non-compete agreements and obtained liquidated damages on behalf of his clients. You can connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn. WASHINGTON | BALTIMORE | FREDERICK | PHILADELPHIA | WILMINGTON | VIRGINIA