Tincher v. Omega Flex: Pennsylvania Product Liability Law Undergoes a Sea-Change

December 9, 2014

With the Pennsylvania Supreme Court’s November 19, 2014 opinion in Tincher v. Omega Flex Inc., the long established and long criticized law of strict products liability in Pennsylvania has undergone a profound shift. In a 139 page 7 judge majority opinion authored by Chief Justice Ronald Castille, the Court overruled its 1978 opinion in Azzarello v. Black Brothers, did away with decades of later precedent, and adopted an entirely new test for evaluating design defect claims under the Restatement (Second) Torts § 402A.

Notably, the Court explicitly elected not to adopt the strict liability rubric ensconced in the American Law Institute’s 1998 Third Restatement of Torts §§ 1-8 with its requirement that a plaintiff prove a safer reasonable alternative design exists in order to recover on a design defect claim. Instead, the Court reaffirmed the application of the Restatement (Second) Torts § 402A and articulated two alternative tests under which a plaintiff may show a product is defective. In this new order a plaintiff may prove a product is defective by demonstrating either: “that the danger is unknowable and unacceptable to the average or ordinary consumer” or 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”.  In short, the plaintiff may show a product is defective either through a consumer expectation test or through a risk-utility analysis.

By overruling Azzarello, the Court has explicitly done away with the problematic business of the trial court making a threshold determination as to whether a product is “unreasonably dangerous” such that the question of its defectiveness may be submitted to the jury. Likewise, the jury no longer is limited to the confusing instruction that a product is defective if it “lacks any element necessary to make it safe for its intended use”. The Tincher Court makes clear that the decision as to whether a product is defective is now left to the factfinder whether judge or jury.

Perhaps the most notable thing about Tincher is what it does not decide. The Court’s decision is narrow and it takes pains to say that it is not deciding many key issues. Among these are who bears the burden of proof beyond a prima facie case under each theory of defect, what evidence is or is not permissible to submit to the jury on each theory, and whether the Tincher decision is going to be applied retroactively. The Court also suggests that uniform jury instructions may not be appropriate and that trial courts should consider each case in light of its variables.

We believe this case will be applied retroactively. Any party that has a case scheduled for trial must be prepared to address the issues raised by Tincher. Since so much is left open, the struggle will now be how the trial courts interpret this holding. It is incumbent upon defendants to advocate for the proper reading. New jury instructions reflecting the two tests set forth in Tincher will need to be drafted and expert reports may need to be adjusted. Defendants will want to attempt to introduce evidence previously barred under Azzarello including potentially evidence of compliance with industry standards in the design of their products. Likewise, defendants will want to ensure the burden of proof rests on the shoulders of the plaintiff where it belongs.  GG&M will be preparing a detailed analysis of the issues raised by Tincher, and what positions defendants should take as the law develops in this area. If you have questions or concerns, please contact us.

The 139 page opinion is available at the following link: http://www.pacourts.us/assets/opinions/Supreme/out/J-80-2013mo%20-%201020173292832303.pdf?cb=1

Attorneys: Kim R. Plouffe