According to the game-changing products liability case Tincher v. Omega-Flex, plaintiffs are the “master” of their case, but that doesn’t mean judges should be barred from instructing juries on both the consumer expectation and risk-utility tests, even when the plaintiff has only pursued one of those theories of liability, a Pennsylvania appellate court has ruled.

A three-judge Superior Court panel ruled in Davis v. Volkswagen that the Lehigh County Court of Common Pleas did not err when it instructed juries on both theories of liability that the state Supreme Court established in Tincher, even though the plaintiff only litigated her case under the consumer expectation test. The ruling leaves in place a defense verdict in the crashworthiness case.