The Pennsylvania Supreme Court’s 2014 seminal decision in Tincher v. Omega Flex changed the lenses by which a jury determines whether a product is defectively designed. Tincher now requires the jury to determine whether the subject product is unreasonably dangerous and defective, and a jury makes this determination by considering specifically enumerated factors in two tests: the risk-utility test and the consumer expectations test. In most cases, a plaintiff has the freedom to pursue either or both tests.

The essence of the consumer expectations test is whether the product meets the expectations of reasonable consumers. Specifically, under this test, a jury determines whether a product is defective if the alleged unreasonably dangerous and defective condition is unknowable and unacceptable to the average or ordinary consumer. Under the risk-utility rest, a product is defective if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.