The products liability landscape in Pennsylvania following the Supreme Court’s game-changing decision in Tincher v. Omega Flex has often been referred to as the “Wild West” by practitioners, and the practice may just have gotten a little wilder.

Last week, the Pennsylvania Defense Institute issued a set of suggested jury instructions outlining how judges should charge juries presiding over products liability cases. The new set of jury charges come more than a year after the Pennsylvania Bar Institute issued its own set of recommended jury instructions, which the defense bar has argued greatly favor plaintiffs and mischaracterizes the law.

The defense bar’s instructions outline 16 suggested jury charges that deviate from the PBI’s recommendations. The changes include adding the words “unreasonably dangerous” into the jury charge, removing language indicating a product is dangerous if it lacks any element necessary to make it safe, and adding language about the risk of the product being “unknowable.” The instructions also change charges involving crashworthiness and adds language regarding industry standards.

The instructions include lengthy sections detailing the rationale and case law behind each suggested jury charge.

“We want practitioners to submit these to the courts to say, as an alternative, here are our suggested jury instructions because we don’t believe the Pennsylvania Bar Institute’s instructions accurately reflect Tincher,” Ricci Tyrrell Johnson & Grey attorney Bill Ricci, who helped author the PDI’s recommended instructions, said.

Ricci noted that the group intends to treat its recommended instructions as a “breathing, living” document that will be updated online based on suggestions from the bench and bar.

Muddy Waters

The Supreme Court’s November 2014 ruling in Tincher overruled the nearly 40-year-old case that established a strict separation between negligence and strict liability principals. Since then, the plaintiffs and defense bars have disputed the extent to which Tincher overruled the prior case law, with jury instructions and the inclusion of industry standards being two focal points in the debate.

An article that Ricci and C. Scott Toomey of Littleton Park Joyce Ughetta & Kelly wrote that accompanied the defense bar’s recently released recommended jury instructions said the new charges were necessary after the PBI refused to revise its recommended jury instructions, which the defense bar contends adds in language determined in Tincher to be specifically off limits. The article says that “at every turn, the Bar Institute’s departures from Tincher attempt to influence the development of Pennsylvania law in a one-sided fashion beneficial only to the plaintiffs.”

However, plaintiffs attorneys are in sharp disagreement with that.

According to Galfand Berger attorney Richard Jurewicz, who represents plaintiffs, the defense bar’s recommendations presume Tincher overruled more case law than it did, and are a “blatant attempt by the defense bar to re-write Tincher.”

“People read too much into this Tincher opinion. Its holding is quite narrow,” Jurewicz said. “If [the Supreme Court] were truly dissatisfied with the body of law, they would have overruled a number of these other Pennsylvania Supreme Court cases.”

Jurewicz said he believes the defense bar’s jury instructions will further complicate an already muddied situation, with the more conservative judges favoring the defense bar’s instructions, the more liberal judges following the PBI’s recommendations and those who don’t practice often before that particular judge left wondering how to present their cases.

Ricci, however, said the courts are already seeing more disputes when it comes to discovery and the development of cases. As for jury instructions, he said both sides are already vehemently raising objections to the jury questions.

“I don’t think this will increase the fighting,” he said. “At least this way we say here’s the alternative. Here’s the rationale and all the case law. I think it will clarify the issues, and therefore, be helpful and advance the ball.”

Both attorneys said they expect arguments on appeal may increasingly hinge on the jury charges, as each side contends that the other side’s jury instructions could constitute reversible error.

“No one wants to try a case twice,” Jurewicz said.

Battle of Jury Instructions

Having competing jury instructions is highly unusual, according to attorneys.

Although the normal process is to have the PBI’s jury instruction subcommittee issue its instructions, defense attorneys were quick to note that those instructions have not been vetted and approved by the Supreme Court, and judges are free to adopt, reject or alter them depending on the case.

Toomey said he’s expecting the plaintiff’s bar to argue that the PBI’s instructions are the “official” recommended jury instructions, and the debate will continue to rage in the court of public opinion. However, he said, it’s clear that both sets of instructions are just recommendations.

“I think the courts are going to do what they do in every case, which is take each side’s proposed instructions and deliver a charge that’s consistent with the law,” Toomey said.

According to Toomey, the courts are already applying the reasoning of the defense bar’s jury instructions advocate, and the new instructions will give the defense bar attorneys something to point to towards that end.

“It’ll help the courts, and help build a consensus for what the Supreme Court already said,” Toomey said.

‘Tincher’ is Working

Attorneys all expressed their frustration at the fact that the law is still so murky three years after Tincher came down. However, the lawyers were also quick to note that the Tincher court expressly said these issues should be handled at the trial court level, through aggressive advocacy from all sides.

“It’s going to be interesting how this unfolds. I think it’s consistent with what Tincher said,” Ricci said. “Trial courts are going to need to do a lot of work.”

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