For years, Pennsylvania products liability law has been split between state and federal courts with regard to the applicable standard for proving a strict liability design defect case. Pennsylvania State Courts followed common law precedent flowing from a 1978 case, implementing the principles of the Restatement of Torts (Second). In 2009, the U.S Court of Appeals for the Third Circuit predicted that, if the Pennsylvania Supreme Court were to directly confront the issue, they would adopt the Restatement of Torts (Third) formulation of the strict liability doctrine.
On November 19, 2014, the Pennsylvania Supreme Court released a long-awaited and significant ruling clarifying products liability law in Pennsylvania and somewhat stemming the tide in the rote movement towards adoption of the Third Restatement. In Tincher v. Omega Flex, Inc., 2014 WL 6474923 (Pa. Nov. 19, 2014), the Pennsylvania Supreme Court reviewed the entirety of strict products liability in Pennsylvania in order to analyze where it had been, how it had evolved, and whether to adopt the Third Restatement. The Court found that the purpose of the Second Restatement was to ensure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market, rather than by the injured persons who are powerless to protect themselves. Further, there was a concern that a jury must be insulated from negligence concepts and rhetoric in strict liability cases. However, as the courts wandered from these base concepts over the years, the common law became muddled and various entities called on the Pennsylvania Supreme Court to adopt the Third Restatement in its entirety in order to clarify the law.
The Court decided that judicial adoption of the Third Restatement is problematic for three reasons. First, the Third Restatement requires that the plaintiff’s expert designate a reasonable alternative design, which proscriptively limits the applicability of a strict liability cause of action to certain products where that sort of evidence is available. As the Court pointed out, in some instances, a product may be in a defective condition, unreasonably dangerous to the user, even though no feasible alternative design is available.
Second, the Court discussed the fact that the Third Restatement treatise writers, while accomplished in their fields and certainly knowledgeable about the subject, are dealing with hypotheticals and are attempting to generalize a difficult topic. This generalization does not always harmonize when courts have to deal with real cases of varying facts.
Finally, the Court discussed how a decision of this magnitude was better left with the Pennsylvania legislature, who had declined in the past to pass such legislation (even though one could argue that the issue was well-known in Pennsylvania).
While the Pennsylvania Supreme Court declined the simple adoption of the Third Restatement, it still overruled previous case law and clarified what must be proven in a strict liability design defect case. A plaintiff must prove that a seller (manufacturer or distributor) placed a product on the market in a “defective condition,” and can do so in two ways.
The plaintiff’s counsel must articulate the plaintiff’s strict liability claim by alleging sufficient facts to make a prima facie case of whether a product is unreasonably dangerous premised upon either 1) a “consumer expectations” theory, 2) a “risk-utility” theory (balancing risks and utilities), or 3) both, depending on the nature of the product.
In a consumer expectation test, a “defective condition” is defined as a condition, upon normal use, that makes the product dangerous beyond the reasonable consumer’s expectations. Under a risk-utility theory, a product is in a “defective condition” if a “reasonable person” would conclude that the probability and seriousness of harm caused by the product outweighs the burden or costs of taking precautions against such harm.
As discovery and case preparation proceeds and the evidentiary record evolves, the plaintiff may choose to pursue or abandon either theory, or pursue both, as the evidence warrants. The trial court is to act in its ordinary gate-keeper role, e.g., monitoring litigation, mediating or adjudicating disputes, and deciding objections and motions, including those seeing to narrow, or expand, the theories of litigation to be pursued at trial.
In a lengthy decision, the Pennsylvania Supreme Court went to great lengths not to adopt the Third Restatement. This stands in stark contrast to other states and courts over the past several years, where adoption of the Third Restatement through “tort reform” seemed to be routine and inevitable. This is welcome news for those clients that may have a future Pennsylvania products liability claim and for subrogation practitioners in general.
If you should have any questions regarding this article or products liability subrogation, please contact Gary Wickert at gwickert@mwl-law.com.
