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Stephen J. Finley Jr. of Gibbons P.C. Stephen J. Finley Jr. of Gibbons P.C.

The last several years have brought significant developments to Pennsylvania products liability law, ranging from the Pennsylvania Supreme Court’s decisions in Tincher v. Omega Flex and Lance v. Wyeth to rulings on the scope of evidence in the trial of a products liability case, to the application of the Pennsylvania Fair Share Act to a strict product liability claim. However, despite these important developments in our product liability jurisprudence, Pennsylvania courts continue to disallow claims for failure to recall or retrofit an allegedly defective product.

‘Tincher v. Omega Flex’ Did Not Expand Traditional Tort Duties

In its seminal products liability case, Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court held that “in Pennsylvania, the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.” While the Pennsylvania Supreme Court upended the unwieldy framework that had developed in Pennsylvania since Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978), it declined to adopt the Restatement (Third) of Torts or implement an entirely new body of products liability law. As a result, traditional tort duties were left intact after Tincher, and the Pennsylvania Supreme Court did not expand existing theories of products liability, create new duties or give birth to new causes of action.

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