Currently pending before the Pennsylvania Supreme Court is the question whether in the defense of a product defect case, the manufacturer or seller may introduce evidence that its product was designed or manufactured to meet industrywide customs and practices or applicable government standards. See Sullivan v. Werner, No. 18 EAP 2022 (Pa.). For more than 35 years, Pennsylvania law has been crystal clear: such evidence is not admissible. See Lewis v. Coffing Hoist Division v. Duff-Norton, 515 Pa. 334 (1987); Gaudio v. Ford Motor, 926 A. 2d 524 (Pa. Super. 2009), appeal den., 989 A. 2d 917 (2010). Despite the ruling in 2014 by the Supreme Court reformulating the legal test of product defect, the Tincher court refused to abandon the strict liability definition established by the Restatement of Torts 2d, Sec. 402A: establishing that product s is liability without fault. See Tincher v. Omega Flex, 104 A. 3d 328 (Pa. 2014). Thus, several appellate rulings since 2014 have confirmed that defenses to products liability cases should not include evidence that a manufacturer has constructed its product in compliance with the customs in its industry or a government standard. The rationale for this exclusionary rule was summarized by one legal scholar—echoing the reasons for the exclusion of this evidence articulated in Lewis, 515 Pa. at 341-343—in this fashion:

“The fundamental problem … is that it is all about the character of the manufacturer/distributor’s conduct, not the product’s safety. In essence it boils down to an assertion by the defendant roughly to this effect: ‘Sure, the product may be dangerous, but we did everything we reasonably could to make it safe, everything that was done by other manufacturers/distributors in our industry. Our product was as good as it could be …’ This is a due care defense, pure and simple, and it sounds in negligence. It deflects attention away from the condition of the product toward the conduct of the defendant. Like many due care arguments, it relies on compliance with industry standards or custom (that is, the ‘state of the art’) as a means of showing due care. It is entirely inconsistent with Section 402A’s principle that a product can be defective even if a manufacturer/distributor exercised “all possible care” in its creation and sale …  Under the governing principles of Section 402A that clearly should not be an available defense.” See “The Force Awakens: Tincher, Section 402a, and the Third Restatement in Pennsylvania,” 27 Widener Commonwealth L. Rev. 157, 210–11 (2018).