'Tincher' at 5 Years Old: A Vision Partially Realized
The Legal Intelligencer
January 25, 2019
Five years ago, the Pennsylvania Supreme Court undertook to modernize Pennsylvania products liability law in its seminal decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). There, the Pennsylvania Supreme Court overruled Azzarello v. Black Bros., 391 A.2d 1020 (Pa. 1978) and did away with the unwieldy framework that had developed since the Azzarello decision nearly 40 years earlier. Under Tincher, the question of whether a product is “unreasonably dangerous” has been returned to the jury, which must determine whether a plaintiff has met the burden of proving a product is defective by showing that either the danger is unknowable and unacceptable to the average or ordinary consumer (the consumer expectations test); or a reasonable person would conclude that the probability and seriousness of harm caused by the product outweighs the burden or costs of taking precautions (the risk-utility test). The Tincher court left much unanswered and called on Pennsylvania’s lower courts, the bar and the legal academy to fill out the parameters of the commonwealth’s products liability jurisprudence. Since then, while Pennsylvania courts have made some progress toward implementing the reforms called for in Tincher, full-scale implementation of the decision has yet to occur.
Courts Apply Definition of Product Defect in ‘Tincher’
Following the Tincher decision in 2014, it was clear that Pennsylvania had adopted a new definition of product defect and that the question of product defect was to be answered by the jury alone. Subsequent proceedings in the Tincher case demonstrate that reliance on principles held over from the now-defunct Azzarello construct is impermissible when instructing the jury on the question of product defect—a question that the jury is solely charged with answering unless reasonable minds could not differ. The primary issue in Tincher following remand was whether Omega Flex, the defendant, should have been granted a new trial because the jury was instructed in accordance with the now-overruled Azzarello standard, rather than the law as articulated by the Pennsylvania Supreme Court in its 2014 Tincher decision. On post-trial motions, the Court of Common Pleas denied Omega Flex’s motion for a new trial, holding that the evidence would have supported the jury’s verdict under both the Azzarello standard and the new Tincher standard. On appeal, in what has become known as “Tincher II,” the Superior Court of Pennsylvania reversed and criticized the trial court for denying “a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.” The Superior Court held that it was fundamental error for the trial court to give a jury charge based on Azzarello era precedent, rather than the principles articulated by the Pennsylvania Supreme Court in its 2014 Tincher decision.
In deciding Tincher II, the Pennsylvania Superior Court confirmed that the question of whether a product is “unreasonably dangerous” to consumers cannot ordinarily be removed from the province of the jury. Under the now-abandoned two-step process implemented in Azzarello, a trial court was first required to make a threshold determination of whether the product in question was “unreasonably dangerous.” If the trial court answered this question in the affirmative, it was then for the jury to determine whether the product was “defective.” In Tincher, the Pennsylvania Supreme Court did away with the artificial separation between “unreasonably dangerous” and “defect” and held that it is for the jury to determine whether a product is “unreasonably dangerous” such that it is defective. Accordingly, post-Tincher, the question of whether a product is unreasonably dangerous may be removed from the jury “only where it is clear that reasonable minds cannot differ on the issue.” In Tincher II, the Superior Court held that Tincher itself was not such a case.
In High v. Pennsylvania Supply, 151 A.3d 341 (Pa. Super. Ct. 2017), the Pennsylvania Superior Court embraced Tincher’s trust in juries to answer the question of product defect. In High, the plaintiffs sustained chemical burns after spreading wet concrete. In opposing the defendant’s summary judgment motion, the plaintiffs argued that a reasonable consumer would not expect wet concrete to cause chemical burns. The Court of Common Pleas entered summary judgment in favor of the defendant, finding that the plaintiffs could not prove that the concrete was in a “defective condition unreasonably dangerous to consumers.” On appeal, the Superior Court reversed, holding that it was for the jury to decide whether an ordinary consumer would reasonably anticipate and appreciate the dangers associated with wet concrete and the attendant risk of injury. High demonstrates that the Superior Court of Pennsylvania has embraced Tincher’s return of the unreasonably dangerous determination to the jury and that this aspect of the Tincher decision has been incorporated into Pennsylvania’s products liability jurisprudence.
Adherence to ‘Azzarello’-Inspired Evidentiary Principles
With Azzarello overruled, the Pennsylvania Supreme Court has lifted the proscription against a jury’s inquiry into the question of “reasonableness.” Many continue to argue that an expansion of the role for juries should also allow for an expansion of the evidence that the jury may consider to determine whether or not a product is defective. Evidence of government regulations, industry standards, and guidance issued by professional organizations, as well as evidence that a product was the state of the art at the time it left the manufacturer’s control, were previously excluded from a jury’s consideration on the grounds that such evidence impermissibly introduced negligence concepts into a strict product liability case. See Lewis v. Coffing Hoist, 528 A.2d 590 (Pa. 1987). This exclusionary rule grew out of Azzarello, which rejected consideration of negligence principles in strict product liability cases. With Azzarello overturned, the foundation for the exclusion of regulations and standards evidence articulated in Lewis no longer exists. Nevertheless, Pennsylvania courts continue to adhere to the rule against consideration of such evidence on the grounds that “the overruling of Azzarello did not provide a sufficient basis to disregard the evidentiary rule espoused in Lewis ...” See Dunlap v. Federal Signal, 194 A.3d 1067 (Pa. Super. Ct. 2018). In Martinez v. American Honda Motor, 2017 Pa. Super. LEXIS 294 (Apr. 19, 2017), the Superior Court considered whether evidence of Honda’s compliance with regulatory and industry standards was admissible. The Court of Common Pleas determined that it was not. The Superior Court agreed, ruling that “Tincher does not, nor did it purport to, affect the applicability” of the rule excluding standards and regulations evidence. It is notable that Martinez was decided just a few months after High. Thus, although the Superior Court rejected the Azzarello two-step determination of product defect in High, it continues to follow the Azzarello-inspired prohibition on standards and regulations evidence.
Adherence to this rule is premised on the Superior Court’s observation that the Supreme Court in Tincher “did not expressly overrule Lewis, and had no occasion to do so based on the arguments the parties presented to it.” Renninger v. A&R Machine Shop, 163 A.3d 988 (Pa. Super. Ct. 2017). However, this reasoning ignores the Supreme Court’s cautionary note in Tincher that the court did not set out to resolve every issue in Pennsylvania products liability law. It was in reliance on Azzarello that Pennsylvania courts excluded evidence of regulations and standards. In deciding Tincher and reversing Azzarello, the Pennsylvania Supreme Court clearly rejected the jurisprudential underpinnings for the rule against introduction of regulatory and standards evidence. Holding onto the Azzarello-era rule excluding standards and regulations evidence based solely on the fact that the Supreme Court did not expressly overrule it is at odds with the purpose of the Tincher decision.
To continue the modernization of Pennsylvania product liability law called for in Tincher and further empower the jury to decide the issue of product defect, Pennsylvania should adopt a bright-line rule allowing for the admission of a product’s conformity with government regulations, industry standards, and guidance of professional organizations. Not only would the adoption of such a rule be in line with Tincher, but it would provide the jury with additional evidence to guide its determination of product defect. Until evidence of government regulations, industry standards and guidance from professional organizations, and evidence that a product was state-of-the-art at the time of its manufacture, are routinely put before the jury in products liability cases, the full promise of Tincher will remain unrealized.
Reprinted with permission from the January 28, 2019 issue of The Legal Intelligencer.
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