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An attorney representing plaintiffs in a case that has become synonymous with a new era of products liability law in Pennsylvania argued before a panel of the state Superior Court on Tuesday that juries do not need to find that a product was unreasonably dangerous in order to determine that the product was defective. But at least one judge on the intermediate appellate court appeared to disagree.

Cozen O’Connor attorney Mark Utke, appearing before the Superior Court in the second trip taken by Tincher v. Omega Flex to appellate court, argued the Supreme Court’s seminal products liability decision did not require a specific jury charge asking the jury if the defendant’s product was defective.

But Superior Court Judge Carl Solano said Utke’s argument lacked viability in the wake of Tincher, which overruled Azzarello v. Black Brothers‘ clear separation of negligence and strict liability.

“I don’t understand where that leaves you after Azzarello was overturned,” Solano said. “It seems to me that what you’re arguing is a return to Azzarello.”

The arguments Tuesday came as part of the defendant’s efforts to overturn a more than $1 million verdict that a jury awarded the plaintiffs in 2011.

In the case’s first journey up the appellate ladder, the Supreme Court took up the case to review whether the state should continue trying products liability cases under a strict division between negligence and strict liability principals, or whether the parties would be allowed to introduce negligence concepts into their cases.

The justices did away with Azzarello‘s strict dichotomy and held plaintiffs could bring their cases under either a “risk-utility” or “consumer expectation” test. How exactly those tests should be implemented has been left up to the practitioners and trial courts to sort out.

As part of its 2014 ruling, the Supreme Court also remanded the case to the trial court to determine whether its ruling meant that the verdict should stand. Although the trial judge ultimately determined not to disturb the verdict in the wake of the 2014 Tincher ruling, the defendant appealed that decision saying they should be entitled to a new trial.

Campbell Campbell Edwards & Conroy attorney Bill Conroy, arguing for the defendant, told the panel that the judge should have awarded his client a new trial because the jury had not been provided any guidance about the risk-utility standard, and they were not told to consider whether the product was “unreasonably dangerous” when determining if the product was defective.

He noted that the jury in the case had found in favor of the defendant on a negligent design theory, but also determined that the product was defective.

“The idea of a reasonable risk was not lost on the jury,” Conroy said.

The jury’s findings received some attention from Superior Court Judge Jacqueline Shogan, who said the verdict appeared to be “inconsistent,” and agreed with Conroy that the findings may indicate how the unreasonably dangerous question could factor into the jury’s decision.

The question of whether jurors should have to consider whether a product is unreasonably dangerous has been a contentious one in the wake of Tincher. Although defendants have argued that jurors should specifically be asked this question, when the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions issued its overhaul of the suggested jury instructions in reaction to Tincher, those instructions did not include the contested phrase.

Utke cited those jury instructions, along with the language of Tincher, to the Superior Court in contending that the unreasonably dangerous charge is not a requirement.

“It’s not part of the Tincher decision. It’s not in any of the cases that follow,” Utke said. “It’s not part of the necessary proofs, or set forward in the model jury charge.”

In responding to Solano’s question regarding Azzarello, Utke contended that Tincher relied heavily on the 1978 case Barker v. Lull Engineering from California, which, Utke said, also did not require an unreasonably dangerous jury charge.

“The justices did not come out and say ‘in order to find a defect in the commonwealth, there needs to be a finding of unreasonably dangerous,’” Utke said.

Conroy, however, contended that the reasonableness of a product is an inherent consideration when it comes to risk-utility questions. As for the model jury instructions, Conroy said those suggested instructions are “highly suspect.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.