Jury box. 2-9-11. Photo by Jason Doiy...
Jury box. 2-9-11. Photo by Jason Doiy… (Jason Doiy)

In response to perceived plaintiff-friendly jury instructions suggested in the wake of the state Supreme Court’s landmark products liability ruling in Tincher v. Omega Flex, the Pennsylvania Defense Institute has released its own list of suggested jury instructions.

The list appeared in the October issue of the PDI’s newsletter, the Counterpoint Bulletin.

Over the summer of 2016, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions rolled out its first major overhaul of the suggested jury instructions for products liability cases in the wake of Tincher.

However, the defense bar and several manufacturing giants, including Johnson & Johnson, Pfizer Inc. and GlaxoSmithKline, balked at the instructions, due in large part to the failure to include any mention that juries should consider whether the product was “unreasonably dangerous.”

The Pennsylvania Bar Institute published the committee’s suggested jury instructions, which means judges will be far more likely to use that wording when instructing a jury. This led to the virtual certainty that defense attorneys would challenge the standard instructions at every opportunity.

In the Bulletin, the PDI cited the ruling in Rapchak v. Haldex Brake Products out of the U.S. District Court for the Western District of Pennsylvania. In that case, Judge Terrence McVerry said the Tincher court “made clear that it is now up to the jury not the judge to determine whether a product is in a ‘defective condition unreasonably dangerous’ to the consumer.”

The PDI also pointed to the state Superior Court’s 2015 decision in Amato v. Bell & Gossett. Although that decision also said that “the Tincher court concluded that generally, the question of whether a product is unreasonably dangerous is one for the fact finder,” it further said the defendant was not prejudiced by the jury’s failure to consider whether the product was “unreasonably dangerous,” because the defendant had argued that the product wasn’t dangerous at all.