On April 19, two venerable defense attorneys, Gerard Cedrone and Eugene Hamill of Lavin, O’Neil, Cedrone & DiSipio, published an article in The Legal Intelligencer that provided a host of thoughtful but differing constructs of the current state of the law, and expressed their views about how our courts should address several thorny issues that remain ripe for review in the aftermath of the Pennsylvania Supreme Court’s revisions to the common law in Tincher v. Omega Flex. Because plaintiffs counsel always gets a rebuttal argument, I’ve prepared this article for the readership’s consideration.

What Is in the Past?

Despite the length of the court’s opinion, the holdings of Tincher were limited to two legal pronouncements: the jury rather than the trial court should decide whether a product is defective in accordance with the newly subscribed definitions established in point number two; a product may be found defectively designed by applying either the consumer expectation test (CET) or the risk-utility test (RUT) referenced in Section 402A of the Second Restatement of Torts. Respectfully, every other observation and comment provided by the court relates to an accounting of the historical development of our common law of products liability and nothing more. The limited construct of the court’s decision was summarized in these paragraphs: