PA Supreme Court to Determine if Jury Should Evaluate Product Danger Under Tincher Standard
At The Reiff Law Firm our Philadelphia product liability lawyers are proud to fight for Pennsylvanians and Philadelphians who have suffered serious, life-altering injuries due to defective products. Our product liability attorneys are proud and honored to have represented individuals in an array of matters including defectively manufactured products, defectively designed products, unreasonably dangerous products, and defective warnings accompanying goods sold to individuals. Part of our commitment to injury victims and, more broadly, to the people of Pennsylvania is to remain informed regarding major shifts and reorientations of products liability law.
On this blog, we have previously written about product liability issues. Furthermore, we have also discussed some of the changes to Pennsylvania property liability law ushered in by Tincher v. Omegaflex. The previous state of product liability law in Pennsylvania was somewhat unsettled and unpredictable due to a lack of clarity regarding whether the 3rd restatement had been adopted or if Pennsylvania law had developed along its own path. While the Tincher decision did clarify the foregoing, the Pennsylvania Supreme Court decision upended years of precedent and resulted in ample lack of clarity of its own. Currently at issue is the role a jury should play in a Pennsylvania product liability action.
How Did Tincher Reshape Pennsylvania Product Liability Trials?
Before discussing the matter at hand, it is instructive to discuss some of the developing changes in Pennsylvania product liability law since the 2014 Tincher verdict. Previously, the governing standard for product liability actions in Pennsylvania was Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). While this standard has some basis in the Second Restatement of Torts, Pennsylvania law had developed its own unique standard of strict liability. This standard purged the “unreasonably dangerous” language from the strict liability standard. The approach to strict liability had numerous supporters and detractors, but most would agree that the standard provided ample protection for Pennsylvanians suffering serious personal injury due to defective products.
The Tincher decision expressly overruled the Azzarello standard. The court announced a new standard that permitted a plaintiff to prove a product was in a defective condition in two ways:
- A plaintiff that was able to prove that a product presents a danger that is “unknowable and unacceptable to the average or ordinary consumer” could show the product was in a defective condition.
- A plaintiff that could show that “a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions” could also establish that a product was defective.
Thus, the standards set forth in Tincher sounds in significant elements of the consumer-expectations test and the risk-utility test. The Tincher decision left the determination as to whether a product was defective to the jury since it is a question of fact. However, in certain circumstances such as instances where reasonable jurors could not reach opposite conclusions, the court did open the door to removing the determination from the purview of the jury.
However, Tincher failed to provide adequate guidance in a number of areas. In Silker v. National Feeding Systems Clarion County Court of Common Pleas President Judge James G. Arner, wrote that:
[Tincher] has engendered considerable confusion among products liability litigants, as evidenced by both plaintiff’s and products liability defendants’ citations to the case in support of several of the arguments presented in the [motions in limine] before the court,”
In this matter, there were questions of introducing evidence of negligence on the part of the plaintiff in the matter. While the judge was receptive to the fact that negligence is not a complete defense to defendant liability, he did rule that the conduct was relevant to the risk-utility determination. Further, echoing the Tincher court’s urging of flexibility in applications of the standard the judge wrote:
Knee-jerk rejection of legal concepts remotely related to negligence in products liability actions, even where such concepts clearly and explicitly relate to Tincher’s newly articulated risk-utility standard for assessing whether a product is defective, was clearly discouraged by Tincher’s extensive explication of the overlapping concepts of strict liability and negligence.
The judge held that the principles underlying the Tincher decision favored the inclusion of evidence of this type.
Previous Guidance under Tincher Was Provided by a Federal Judge
However, one aspect of the products liability law that often comes into question is the tension that can exist between the consumer expectations and the risk-utility test. In summary judgment proceedings in Capece v. Hess, the plaintiff pursued only a consumer expectations line of argument. However, Hess argued that the risk-utility test weighed in its favor, in part, because the plaintiff had conceded that the risk of injury could not have been designed out of the machine. However, the plaintiff had also argued that a guard could have reduced the risk of injury. Finding that:
There are factual disputes regarding the risks of harm from the machine as presently designed, the feasibility and effectiveness of a safer alternative design, and the alternative design’s effect on the product’s utility. These disputes are material because they go to the ‘probability and seriousness of harm’ and ‘the burden or costs of taking precautions.’
Summary judgment on the negligence and products liability grounds were denied as genuine issues of material fact were still in dispute.
Another opinion decided in the Middle District of Pennsylvania, Nathan v. Techtronic Industries North America, applied Tincher retroactively in a separate products liability case.
What Issue Will the PA Supreme Court Address?
The Pennsylvania Supreme Court granted appeals in two separate asbestos-related matters. The appeal concerns the matters Amato v. Bell & Gossett and Vinciguerra v. Bayer Crop Science. While the appeals were multi-faceted, the court agreed to address only the issues related to a trial court’s prohibition on permitting a requested jury instruction regarding whether the product was “reasonably safe” or whether the product could have been made “reasonably safe” through “reasonable instructions or warnings.” Essentially, at trial, defendants argued that the product in question was not dangerous at all. Furthermore, they argued that the product did not cause the injury. Following findings to the contrary, the Superior Court ruled that based on this line of argument, the defendant was then precluded from having the jury determine whether the product was “unreasonably dangerous.”
The petitioners argue that the issue at hand is the jury instructions in use in product liability matters are no longer fully in accord with the state of post-Tincher product liability law. Since these jury instructions were based on the principles and language set forth in the overruled Azzarello case, the jury instructions should also be revisited. The appellants argue that defendants should be free to submit evidence regarding the safety of an allegedly unreasonably dangerous product. The appellants argue that this preclusion represented an unwarranted narrowing of Tincher.
However, the thrust of the appellant’s argument in the lower court did not center around the concept of a product being “unreasonably dangerous.” Rather as stated above, the appellant argued that the substance in question was not present. Furthermore, they argued that even if the substance was present it posed no danger. Thus, because the argument regarding the potential “unreasonably dangerous” nature of the substance was never raised in the trial court, the defendant was not prejudiced by the failure to include this instruction.
Furthermore, it is important to recall that Tincher did contain language removing certain determinations from the purview of the jury. The Pennsylvania Supreme Court held:
Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue.”
Should this be an issue where reasonable minds could not differ on the issue, this may be a matter where preclusion of the jury’s traditional role as a fact-finder is appropriate.
In any case, the grant of allocator by the Pennsylvania Supreme Court should prove instructive to the further development of the Tincher standard. Notably, the court may further its roadmap to failure to warn matters as presented in Tincher where the design defect nature of that matter controlled. In any case, the proceedings and decision will undoubtedly be closely watched and analyzed as they are likely to provide clarification under the new standard.