As we have previously reported, in Tincher v. Omega Flex, Inc., the Pennsylvania Supreme Court recently overruled the overbearing Azzarello standard that imposed absolute strict liability on manufacturers regardless of reasonableness and foreseeability while affirming the Second Restatement’s place in Pennsylvania common law. By overruling Azzarello and its progeny, the Tincher decision created a void in Pennsylvania product liability case law that will only be filled by the cases to come.

In Cancelleri v. Ford Motor Co., the Lackawanna County Court of Common Pleas is the first trial level court to apply the Tincher decision. The underlying matter was a crashworthiness case that resulted in a $5.9 million verdict for Cancelleri. The jury found that an airbag was defectively designed and did not deploy in Cancelleri’s crash. Ford filed a post-trial motion requesting a judgment notwithstanding the verdict, or in the alternative, a new trial and argued that the court erred by giving jury instructions that included language from the recently overruled Azzarello and precluded industry standards evidence from the Third Restatement.

Judge Gibbons held that the jury instructions were based on design defect standards from Gaudio, a case which has not been overruled, and not Azzarello. Accordingly, Ford was not prejudiced by the instructions. With respect to Ford’s argument that Tincher implies it is wrong to exclude evidence of industry standards found in the Third Restatement, Judge Gibbons held that Tincher declined to adopt the Third Restatement, and accordingly, it is proper to utilize the Second Restatement for industry standards evidence.

Ford already has plans to appeal the decision. While Tincher certainly scaled back the strict liability imposed on manufacturers, it also created a great deal of ambiguity with respect to the proper standards courts are to utilize on a case-by-case basis. If the Ford appeal makes its way all the way up to the Pennsylvania Supreme Court, the Second Restatement v. Third Restatement issue could be revisited.

Thanks to Eric Clendening for his contribution.

For more information, contact Denise Fontana Ricci at .

As we have previously reported, those of us who practice in, or are beholden to, Pennsylvania products liability law, have anticipated the Supreme Court’s decision in Tincher v Omega Flex Inc., where it appeared that the High Court was finally poised to decide whether the Commonwealth would abandon the Second Restatement’s Section 402(a) articulation of strict liability in favor of the increasingly-popular (and allegedly pro-defendant) Third Restatement.  The answer in Tincher may very well have lead to more questions.

Pre-Tincher, strict liability claims were governed by Azzarello’s interpretation of Section 402(a) of the Second Restatement of Torts that “the supplier of a product is the guarantor of its safety [and] [t]he product must, therefore, be provided with every element necessary to make it safe for its intended use, and without any condition that makes it unsafe for its intended use.”  To achieve this end, Azzarello ignored the language of unreasonable danger found in Section 402(a) by holding that negligence concepts could not be considered by the jury when asked to impose strict liability for products.

After years of interpreting the gray areas of Azzarello, several state and federal courts in the Commonwealth suggested that the Supreme Court abandon Section 402(a) by adopting the more hybrid approach found in the Third Restatement. Instead, the Supreme Court recently held that, while instructive, the Third Restatement would not replace Pennsylvania’s “properly calibrated” version of Section 402(a).  Rather, Tincher simply overruled the overbearing Azzarello standard that previously imposed absolute strict liability on manufacturers regardless of reasonableness and foreseeability while affirming the Second Restatement’s place in Pennsylvania common law.

Without the familiarity of Azzarello and its progeny, nor the fresh canvas of the Third Restatement, the reality of Tincher is that Pennsylvania product law is likely to remain in flux for years to come.  However, at a minimum, Tincher eradicated the notion of unconditional liability for product manufactures in favor of allowing the defense to argue traditional negligence concepts to the jury in one of two “composite” approaches.  First, the Court explained that some product cases will lend themselves to a pro-plaintiff “consumer expectations” standard wherein “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.”  On the other hand, some product cases will allow the defense to argue that the “risk/utility” of the product militates against imposing liability for the plaintiff’s alleged injuries.

Thanks to Adam Gomez for his contribution to this post.

Recently, the United States District Court for the Eastern District of Pennsylvania continued the federal courts’ test of Section 402(a) of the Restatement (Second) of Torts by concluding that allegations of manufacturing defects in medical devices and products are barred under Pennsylvania law.

In the case of Terrell v. Davol, Inc.., the plaintiff brought suit against the manufacturers of a medical mesh designed to aid in the treatment of hernias when it was discovered that the device was the cause of a severe gastrointestinal disorder.  In her suit, the plaintiff specifically alleged that the manufacturers were, among other things, strictly liable for certain alleged manufacturing defects in the mesh.  However, relying on longstanding Pennsylvania precedent barring strict liability claims against prescription drug manufacturers, the defendants moved to dismiss the plaintiff’s Section 402(a) claims for strict liability arguing that she could only recover if the production of the mesh was actually negligent.

In ultimately siding with the defendants and granting the motion to dismiss, Judge Joel H. Slomsky found that while Pennsylvania’s traditional interpretation of Section 402(a) has all but solidified strict liability for product manufacturers, an exception has been carved out for the makers of medications and medical devices.  Specifically, Judge Slomsky explained that Pennsylvania has adopted the reasoning of Hahn v. Richter in the context of medical devices to bar strict liability claims because the punitive effect would undermine the public’s access to potentially life-saving products.  Yet, Judge Slomsky went beyond the traditional principles of Hahn to more precisely conclude that Pennsylvania law even bars strict liability claims regarding manufacturing errors in the product at issue.  Instead, Judge Slomsky reasoned that the principles in Hahn implicitly operate to require a showing of negligence in the design or manufacture of a medical product before the plaintiff can recover as a matter of law.

While a subtle counter to Pennsylvania’s extreme products liability regime, the Court’s decision in Terrell reaffirms the evolving notion that modern products cases incorporate ordinary negligence principles by implying that liability should correlate with social utility.  In so holding, Terrell places further pressure on the Pennsylvania Supreme Court to finally decide the direction of products liability in the Commonwealth vis-à-vis the Restatement (Second) of Torts.

Thanks to Adam Gomez for his contribution to this post.  For more information, please email Paul Clark at .

As previously reported, a growing rift has emerged between Pennsylvania’s state and federal courts regarding the applicability of the Restatement (Third) of Torts to product liability actions.  True to form, a recent decision from the Western District of Pennsylvania further complicated matters when Judge Arthur J. Schwab declined to follow the Third Circuit’s ruling in Covell v. Bell Sports, Inc. and instead adopted the State Supreme Court’s adherence to the Second Restatement.

In Gilmore v. Ford Motor Company, Judge Schwab previously ruled that the Restatement (Second) of Torts governed plaintiff’s claim of strict liability against Ford where the decedents were ejected from their 2000 Ranger pick-up.Ford took exception and moved for reconsideration, arguing that the Third Circuit’s decisions in Covell and Sikkelee v. Precision Airmotive Corp. compelled the court to apply the Restatement (Third) of Torts. Despite Ford’s lofty citations, Judge Schwab remained unconvinced and held that because the Third Circuit’s ruling in Sikkelee was non-precedential, it was free to stand by the position that recent state decisions contradict the federal courts’ predisposition to the Third Restatement.  Specifically, Judge Schwab implied that the relevant Third Circuit opinions were obsolete in light of two state Supreme Court decisions issued after Covell and Sikkeleewhere the court continued to apply the Second Restatement.  As a result, Judge Schwab concluded that there was no change in Pennsylvania’s controlling law and endorsed the Second Restatement’s application by federal courts sitting in diversity. 

Although Judge Schwab’s district-level opinion is non-binding, it serves as a succinct, yet persuasive analysis of the tension between state and federal courts regarding the Restatement’s future in Pennsylvania.  The opinion’s latent advocacy for comity between the courts should catalyze further consideration of the issue and, at a minimum, indicates that the debate is all but over.

Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Paul Clark at .

In the case of Reott, et al. v. Asia Trend, et al., the plaintiff took a Remington tree stand and utilized a “ladder stick” to climb twenty to twenty-five feet to install the stand in a “suitable” tree.  He placed the stand in the tree and cinched the locking strap around the tree trunk.  Unfortunately, when he attempted to climb down the tree, the locking strap broke and he fell to the ground thereby suffering crushed vertebrae and a fractured wrist.  The installation of the stand in the tree was contrary to all acceptable “tree strand” usage and the defendants pleaded reckless conduct as an affirmative defense.

On appeal Pennsylvania’s Supreme Court was faced with the question of “whether a defendant in a products liability action must plead and prove as an affirmative defense that an injured party’s alleged “highly reckless conduct” was the sole or superseding cause of the plaintiff’s injuries.”  The Court, in a binding and precedential decision, ruled that the answer is “yes.”  The good news in this decision is that it gives defendants in a products case a way, albeit a difficult way, to get out from strict liability.

If you have any questions about this post, please contact Bob Cosgrove at .