Five years ago, the Pennsylvania Supreme Court undertook to modernize Pennsylvania products liability law in its seminal decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). There, the Pennsylvania Supreme Court overruled Azzarello v. Black Bros., 391 A.2d 1020 (Pa. 1978) and did away with the unwieldy framework that had developed since the Azzarello decision nearly 40 years earlier. Under Tincher, the question of whether a product is “unreasonably dangerous” has been returned to the jury, which must determine whether a plaintiff has met the burden of proving a product is defective by showing that either the danger is unknowable and unacceptable to the average or ordinary consumer (the consumer expectations test); or a reasonable person would conclude that the probability and seriousness of harm caused by the product outweighs the burden or costs of taking precautions (the risk-utility test). The Tincher court left much unanswered and called on Pennsylvania’s lower courts, the bar and the legal academy to fill out the parameters of the commonwealth’s products liability jurisprudence. Since then, while Pennsylvania courts have made some progress toward implementing the reforms called for in Tincher, full-scale implementation of the decision has yet to occur.

Courts Apply Definition of Product Defect in ‘Tincher’

Following the Tincher decision in 2014, it was clear that Pennsylvania had adopted a new definition of product defect and that the question of product defect was to be answered by the jury alone. Subsequent proceedings in the Tincher case demonstrate that reliance on principles held over from the now-defunct Azzarello construct is impermissible when instructing the jury on the question of product defect—a question that the jury is solely charged with answering unless reasonable minds could not differ. The primary issue in Tincher following remand was whether Omega Flex, the defendant, should have been granted a new trial because the jury was instructed in accordance with the now-overruled Azzarello standard, rather than the law as articulated by the Pennsylvania Supreme Court in its 2014 Tincher decision. On post-trial motions, the Court of Common Pleas denied Omega Flex’s motion for a new trial, holding that the evidence would have supported the jury’s verdict under both the Azzarello standard and the new Tincher standard. On appeal, in what has become known as “Tincher II,” the Superior Court of Pennsylvania reversed and criticized the trial court for denying “a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.” The Superior Court held that it was fundamental error for the trial court to give a jury charge based on Azzarello era precedent, rather than the principles articulated by the Pennsylvania Supreme Court in its 2014 Tincher decision.