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.
Claims for Failure to Recall Are Inconsistent With Pennsylvania Products Liability Principles Pennsylvania disfavors post-sale duties, regardless of the theory asserted. For example, Pennsylvania courts have declined to impose on manufacturers a duty to supervise the use of a product after its sale. See Slemmer v. McLaughlin Spray Foam Insulation, 955 F. Supp. 2d 452 (E.D. Pa. 2013). Pennsylvania courts have also rejected a general post-sale duty to warn, as in Walton v. Avco, 610 A.2d 454 (Pa. 1992). In Walton—a case involving a latent defect in helicopter engines—the Pennsylvania Supreme Court found that a post-sale duty to warn may exist only where a manufacturer has actual knowledge of a defect at the time of sale in a product that is not mass-produced or mass-marketed to consumers. Efforts to expand the very limited duty established in Walton into a duty to recall have consistently been rejected, as in Padilla v. Black & Decker, 61 Fed. R. Serv. 3d 383 at *5 (E.D. Pa. 2005) (explaining “that the limited duty to warn in Walton does not, however, extend to the duty to recall and retrofit.”) Moreover, Pennsylvania has declined to adopt Section 10 of the Restatement (Third) of Torts, which imposes post-sale duties on manufacturers and distributors.
This broad rejection of post-sale duties is consistent with Pennsylvania’s longstanding requirement that, in order to recover on a products liability claim, a “plaintiff must establish that the product was defective … and that the defect causing the injury existed at the time the product left the seller’s hands,” as in Berkbile v. Brantly Helicopter, 337 A.2d 893, 899 (Pa. 1975). Since the inquiry in a products liability case under Pennsylvania law centers around the condition of the product at the time it left the seller’s control, any claim based on what a manufacturer or distributor did, or did not, do following a product’s sale is incompatible with the principles underlying Pennsylvania product liability jurisprudence.
Pennsylvania Does Not Permit a Claim for Failure to Recall or Retrofit
Consistent with this longstanding reluctance to impose post-sale duties upon manufacturers and distributors, Pennsylvania’s state and federal courts regularly dismiss claims for failure to recall allegedly defective products. See Habecker v. Copperloy, 893 F.2d 49 (3d Cir. 1990); Lynch v. McStome & Lincoln Plaza, 548 A.2d 1276 (Pa. Super. Ct. 1988); Engle v. BT Industries AB, 41 Pa. D. & C.4th 25 (Dauphin Cty. Com. Pl. 1999). Consideration of more recent precedent confirms this prohibition remains in force.
In Talarico v. Skyjack, 191 F. Supp. 3d 394 (M.D. Pa. 2016), Judge Malachy Mannion of the U.S. District Court for the Middle District of Pennsylvania dismissed a claim for failure to recall and retrofit an allegedly defective product in a case brought by the estate of a worker killed while using a scissor lift. The plaintiff alleged that the scissor lift was “unreasonably dangerous when used in an ordinary, intended and foreseeable manner” and that the defendant was liable for, among other claims, “failing to recall” the scissor lift. The court surveyed the law and determined that no Pennsylvania case has recognized a duty to recall or retrofit and precedent indicates that “such a duty would be inappropriate under established principles of Pennsylvania law.” Even in the limited circumstances where Pennsylvania law may impose a post-sale duty, “that limited duty … does not… extend to the duty to recall or retrofit.”
Next, the court considered the plaintiff’s contention that the Pennsylvania Supreme Court’s decision in Lance v. Wyeth, 85 A.3d 434 (Pa. 2014), opened the door to a claim for failure to recall or retrofit a product. In Lance, the Pennsylvania Supreme Court suggested that a pharmaceutical company may owe a post-sale duty if it places a drug “into the marketplace, or continues a previous tender, with actual or constructive knowledge that the drug is too harmful to be used by anyone.” The court in Talarico found, however, that the holding in Lance did not establish a duty to recall or retrofit. Accordingly, the district court dismissed the plaintiff’s claim for failure to recall and retrofit the scissor lift, as no such cause of action is recognized under Pennsylvania law.
Shortly after Talarico was decided, a decision from the U.S. District Court for the Western District of Pennsylvania further confirmed Pennsylvania’s disallowance of claims for failure to recall or retrofit. See Inman v. General Electric, No. 11-666, 2016 U.S. Dist. LEXIS 127606 (W.D. Pa., Sep. 20, 2016). In Inman, the plaintiff claimed that he was exposed to excessive levels of mercury in the course of his work refurbishing vintage and antique electronic equipment. The plaintiff alleged that the defendants failed to recall the equipment, failed to issue public service announcements, and failed to “otherwise disseminate” information about the risks associated with the equipment. The court rejected the plaintiff’s post-sale duty claims, as there is no continuing duty to warn where, as in Inman, no defect is alleged to have existed at the time of the product’s distribution. Moreover, just as there is no general post-sale duty to warn, “nor is there a duty in Pennsylvania to recall a product.”
Talarico and Inman, two post-Tincher cases, one of which analyzed the Supreme Court’s consideration of post-sale duties in Lance v. Wyeth, both reached the conclusion that Pennsylvania does not recognize a claim for failure to recall or failure to retrofit a product. While Pennsylvania products liability law continues to develop, recent precedent confirms that Pennsylvania continues to disfavor post-sale duties, and the decades-long prohibition against claims for failure to recall and failure to retrofit continues to preclude those claims.
Stephen J. Finley is director in the Gibbons P.C. products liability department. He dedicates his practice to the defense of cases involving wrongful death, catastrophic personal injury and major property loss. He defends companies involved in complex litigation, including multidistrict litigation, mass tort litigation, class action lawsuits, and serial lawsuits.