When the state Supreme Court issued its ruling in Tincher v. Omega Flex nearly 10 years ago, many Pennsylvania attorneys said the ruling represented a tidal shift in how products liability cases would be tried.
But, in a ruling that may show the limits of Tincher‘s scope, the high court has determined that defendants still cannot introduce evidence showing their product complies with industry standards, finding that the 2014 ruling did not change the way courts must handle such evidence.
On Dec. 22, the justices ruled 4-2 to affirm the plaintiff’s $2.5 million award in the case Sullivan v. Werner, but split more narrowly on the overarching question of whether industry standards should be barred from products liability trials.
On that question, the high court split 3-2-1, with Justices Sallie Updyke Mundy, Kevin Dougherty and David Wecht finding that the evidence should be barred; Chief Justice Debra Todd and Justice Kevin Brobson finding it should be allowed; and Justice Christine Donohue saying the record was insufficient to make such a sweeping determination.
In the opinion announcing the judgement of the court, Mundy said that, despite overruling a decades-old case that established a severe separation between negligence and strict liability, those two concepts still remain very separate following Tincher.
What remains important, she said, is that the jury stays focused on the product, and does not get confused with evidence about a defendant’s conduct.
“Tincher recognized that the risk-utility test reflects the negligence roots of strict liability. However, Tincher did not adopt the risk-utility test to incorporate negligence concepts such as fault and due care into strict liability,” Mundy said. “Instead, Tincher was careful to distinguish the duty involved in strict liability from the duty of due care in negligence.”
In an emailed statement, Reed Smith’s Jim Beck, who is representing the defendants, said the ruling “minimized the effect of what the Pennsylvania legal community thought at the time was a transformative reappraisal in Tincher of Pennsylvania’s uniquely strict approach to strict liability.”
“The plurality has returned Pennsylvania to the outlier status that Tincher sought to change,” Beck said. “The Rules of Evidence sought to increase transparency in litigation, and we continue to believe that it is only fair that juries be given ALL the facts of a case instead of being purposely blindfolded.”
Further, Beck warned that, together with a recent U.S. Supreme Court ruling, which said Pennsylvania’s consent-by-registration law is constitutional, Sullivan will likely incentivize plaintiffs from across the country to file suit in Pennsylvania, “in order to attempt to take advantage of Pennsylvania’s uniquely restrictive evidentiary approach to strict liability.”
Counsel for the plaintiffs, however, said the defense bar had been seeking to push the application of Tincher far beyond what it was meant to do.
“Everybody’s imagination ran amok with what Tincher meant for the past nine years,” Jeffrey Laffey of Laffey Bucci Kent, who represented Michael Sullivan, said. “It solidifies Pennsylvania as a Second Restatement state, which Tincher expressly stated that it was.”
Appellate attorney Howard Bashman, who represented Sullivan before the Supreme Court, said a ruling in the opposite direction would have caused “extreme upheaval” as many defendants across the state had preserved this argument.
“The defense had a full airing of its position here,” Bashman said. “From my perspective this should be the last word on the matter.”
Laffey Bucci’s Stewart Ryan, who tried the case with Laffey, also said the ruling offers a clearer view of how the justices are interpreting Tincher‘s effect.
“They’re seeing the reality that the only thing Tincher may do here is change the lens by which juries can determine product liability,” he said, referring to two tests—risk-utility and consumer expectation—under which plaintiffs can now present products liability cases. “All of these various sub issues the defense bar is saying no longer matter. The court said we’re still a Restatement (Second) state.”
The case came to the Supreme Court after a unanimous three-judge Superior Court panel determined that a Philadelphia judge properly barred the jury from hearing industry standards testimony at trial, which eventually resulted in a $2.5 million verdict for Sullivan.
Court papers said Sullivan had fallen from a platform scaffold, and subsequently alleged that the scaffold was negligently designed because it was possible to inadvertently rotate the deck pins during normal use. The defendants, Werner Co. and Lowe’s Cos., had sought to show that the product met federal Occupational Safety and Health Administration regulations and American National Standards Institute standards.
Although Mundy determined it was important to make sure “negligence concepts such as fault and due care” do not “creep into strict liability,” Todd said that mindset “reflects a mistrust of our jury system and suggests juries cannot understand these complex matters.”
According to Todd, who is the only remaining justice who was on the high court when Tincher was decided, Mundy’s ruling ”eschews the recent teachings of this court in Tincher; rejects the sound approach taken by virtually all of our sister states; accepts the patent unfairness of nonetheless allowing such evidence to be admissible in a plaintiff’s case to show a product is defective; and deprives juries of potentially valuable and relevant information.”
“Governmental and industry standards evidence should be admissible not only because of Tincher’s reform of strict liability law, but because it is entirely consistent with, if not mandated by, our broad allowance for the admissibility of relevant evidence under our Pennsylvania Rules of Evidence,” she said.