Larry Coben, AnapolWeiss

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:

We recognize—and the bench and bar should recognize—that the decision to overrule Azzarello and articulate a standard of proof premised upon alternative tests in relation to claims of a product defective in design may have an impact upon other foundational issues regarding manufacturing or warning claims, and upon subsidiary issues constructed from Azzarello, such as the availability of negligence-derived defenses, bystander compensation, or the proper application of the intended use doctrine. Accord Bugosh, 971 A.2d at 1244-45 & 1248-49. These considerations and effects are outside the scope of the facts of this dispute and, understandably, have not been briefed by the Tinchers or Omega Flex.

This opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings. In light of our prior discussion, the difficulties that justify our restraint should be readily apparent. The common law regarding these related considerations should develop within the proper factual contexts against the background of targeted advocacy.

What Issues Were Not Mentioned or Addressed in ’Tincher’?

An objective review of the Tincher decision, in the context of the many legal issues which arise in products liability cases, and alluded to by Cedrone and Hamill, demonstrate that at least the following issues were not addressed or considered:

  • What evidence is pertinent to prove or defend a products liability case based upon a claim relying upon either the CET or the RUT?
  • How should a jury be instructed in judging a design defect claim because it remains a recoverable theory of liability different from negligence?

As of the date of this article, the readership has not been provided with any new and precedent setting appellate court decisions to answer these questions. And, while the Superior Court did issue an opinion in Tincher on remand, that decision did nothing more than affirm the need for a new trial because the jury instructions followed case law reversed by our Supreme Court. Nevertheless, practitioners are not left without any guidance on the judiciary’s perspective. Since Tincher, there have been several trial court opinions and memorandum opinions of our appellate courts addressing some of these issues. See, American Honda Motor v. Martinez, (Pa. Super.) (nonprecedential), appeal denied; Cancelleri v. Ford Motor, 2016 Pa. Super. Unpub. LEXIS 53; Webb v. Volvo Cars of North America, 2016 Pa. Super. LEXIS 2214; Mills v. Evenflo Company, CP Franklin Co., Dec. 19, 2016 (No. 2010-415). Here are but a few of the questions answered in these cases:

  • Although Tincher overruled Azzarello, the holding in Tincher does not require that the trial court remove the “guarantor” language from a jury instruction.
  • Our Supreme Court has held that evidence of applicable federal regulatory and industry standards “‘should be excluded because it tends to mislead the jury’s attention from their proper inquiry,’ namely ‘the quality or design of the product in question.’” at 543 (quoting Lewis v. Coffing Hoist Division, Duff-Norton, 528 A.2d 590, 594 (Pa. 1987)). Tincher does not, nor did it purport to, affect the applicability of the rulings in Gaudio or Lewis. Based upon precedent that remains unchanged, the trial court determined that the proposed evidence was inadmissible. We agree. Martinez, supra.; Webb v. Honda, supra.; Mills, supra.

Evidentiary Rulings and Jury Instructions

Assertions have been made by my colleagues at the defense bar that the holdings in Tincher require the jettison of most of our decisional law and the embrace of legal phrases which serve no purpose other than—in my view—to water down the distinct nature of strict liability. The court emphasized the importance of strict liability to our jurisprudence, stating: “The tortious conduct at issue is not the same as that found in traditional claims of negligence and commonly associated with the more colloquial notion of fault. In this sense, introducing a colloquial notion of fault into the conversation relating to strict product liability in tort detracts from the precision required to keep this legal proposition within rational bounds.”

The underlying distinctions between a negligence claim and a strict liability claim compelled the court to remind us of the law’s responsibility to protect consumers against defective products, stating: “A seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that public has a right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them … and that the consumer of such products is entitled to the maximum of protection.”

Because this construct distinguishes claims of strict liability from negligence claims, it is essential that those who sit as jurors receive legal instructions explaining these distinctions and be given essential guideposts to judge liability based upon strict products liability. This irrefutable proposition dictates the following conclusions.

  • A jury instruction explaining the duty of a product manufacturer or seller is essential.

It is elemental that jury instructions are essential to explain the legal principles at issue and provide jurors with a guide in applying the evidence to the law and vice versa. To that end, courts routinely explain the basic legal duties relevant to the plaintiff’s claims against the defendant, Tincher, supra.; Bottorf v. Waltz, 245 Pa. Super. 139 (1976). The need for this explanation is particularly germane because the “notion” of fault must be excluded from any analysis of a product’s design.

  • Is the phrase “unreasonably dangerous” an element of a design defect case?

In Tincher, the phrase “unreasonably dangerous” was used at least 55 times. Often it was mentioned to explain the evolution of strict liability in both Pennsylvania and other jurisdictions. In the end, the court observed the following:

  •  “The notion of ‘defective condition unreasonably dangerous’ is the normative principle of the strict liability cause of action.”
  • “Given that a term like “defective condition unreasonably dangerous’ is not self-defining, courts have offered multiple definitions … all effectuating the single policy that those who sell a product are held responsible for damages caused to a consumer by the reasonable use of the product.”
  • “Counsel must articulate the plaintiff’s strict liability claim by alleging sufficient facts to make a prima facie case premised upon either a ‘consumer expectations’ or ‘risk utility’ theory, or both.”
  • “We hold that, in Pennsylvania, the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.”

The lessons learned from this analysis are that a product is defective and unreasonably dangerous if a jury finds that the product’s design did not comport with the “consumer expectations” or the “risk utility” definition of defect. Because this conclusion is neither debatable nor controversial, the only remaining question is whether our jury instructions should include the phrase “unreasonably dangerous”? Accepting the Tincher court’s view at face value, the answer is no. Noting that this phrase is not self-defining, the court provided two definitions of defect, which if met result in liability. Why then provide the jury with phraseology which has no independent meaning? In fact, if the phrase is included along with these definitions, there is a risk that a jury might conclude it must find the product both defective (per the definitions) and unreasonably dangerous—a requirement not dictated by Tincher or the jurisprudence of other courts, as in Cronin v. J.B.E. Olson, 501 P. 2d 1153, 1162 (Calf. 1972)(rejecting the use of this phrase in the instructions).

  • In strict liability cases, evidence related to due care design practices is not relevant.

Over the past 30 years, the defense bar has dauntingly argued in favor of evidence that characterizes the design of a product through the eyes of the custom in the industry, the state of the art and government standards. Nevertheless, our courts have consistently ruled that this information is not admissible in defense of defect claims, as in Gaudio v. Ford Motor, 976 A. 2d 524 (Pa. Super. 2009), appeal denied; American Honda Motor v. Martinez, Cancelleri v. Ford Motor. The latest argument in support of the admissibility of this information is presented by Cedrone and Hamill, in which they state that “post-Tincher the extreme separation of negligence concepts from strict liability is no longer in effect” and, therefore, this evidence should be admissible to prove the product is not defective. While I applaud their steadfastness, neither Tincher nor the post-Tincher definitions of defect warrant a change in excluding this evidence.

Products liability cases predicated upon strict liability in torts remain a separate and distinct cause of action from negligence. If this evidence were allowed, it would provide proof of a manufacturer’s due care and convert the case into a fault-based claim. That is not permissible. There is uniform consensus that products cases do not question the due care of the manufacturer and, therefore, this evidence is not relevant, as in Rocky Mountain Fire and Casualty Biddulph Oldsmobile, 640 P.2d 851, 854 (Az. 1982); Majdic v. Cincinnati Machine, 537 A.2d 334 (Pa. Super. 1988); Lockwood v. AC&S, 722 P.2d 826, 834 (Wash. App. 1986); Buell-Wilson v. Ford Motor, 141 Cal. App. 4th 525, 543-544 (2006), cert. granted, vacated on an unrelated issue (2007); McLaughlin v. Sikorsky Aircraft, 148 Cal. App. 3d 203 (1983).

The consumer expectation test asks whether the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. The risk-utility test is characterized as a hindsight test which gauges the safety or defect of a product in light of the usefulness and desirability of the product, the safety or likelihood it will cause injury, an alternative design, the manufacturer’s ability to eliminate the unsafe character without impairing its usefulness or making it too expensive, and the user’s knowledge and ability to avoid the danger. Allowing defense evidence that the product comports with customs and practices or standards would convert these claim into a negligence lawsuit and place the focus of the case on the manufacturer’s conduct and its expectations rather than those of the ordinary consumer or the risks of the product without an alternative design.

In the end, if the Pennsylvania Supreme Court wanted to eliminate strict liability and employ a pure negligence theory, it would have said so in Tincher. By continuing to ascribe to Section 402A of the Restatement of Torts 2d, the court has reaffirmed the important societal benefit that strict liability plays in protecting innocent consumers and alerted product manufacturers that their duty goes beyond simple due care.


Good advocacy is the bedrock of the evolution of the common law. As advocates for our respective clients, Cedrone and Hamill and this author respectfully disagree on many legal issues that will ultimately require judicial intervention. Our honest disagreements highlight the value of this exchange of ideas.

Larry E. Coben, a shareholder at Anapol Weiss, handles products liability cases at the firm.