Pennsylvania Association for JusticeNew Face of Strict Liability Law in PA

Monday, December 8, 201412:00 p.m. – 2:00 p.m.

Telephone Seminar

Presented by Cliff RiedersJim Ronca

Tom AnapolAlan Feldman

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History

• Enterprise theory of liability, an American Law Institute project funded by big tobacco and big insurance.

• Enterprise theory project shelved after its sponsors were revealed.

• Big proponents of the enterprise theory were Professor Victor Schwartz and Dick Thornburgh.

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History

• Professors Twersky, Brooklyn Law School, and James Henderson, Cornell, were appointed reporters.

• Both had written widely in support of “tort reform” in connection with products liability.

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History

• The original Restatement Third did not cite Pennsylvania law at all.

• Several years of debate and exchange of positions followed.

• The modern prosser turned out to be the unassuming Professor Oscar Gray, who stood up to the Congress of the American Law Institue and pointed out the unfairness of the Restatement Third. The room was in rapt silence listening to Professor Gray.

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History

• After much discussion at the Consultative Group level, Professor Twersky agreed to add the “Pennsylvania commentary” found at page 54 of the soft cover edition, Restatement of the Law Third Torts, Products Liability Section 1-end with Reporters’ Notes, tables and index.

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History

• “Although Pennsylvania case law governing products liability is sometimes difficult to decipher, a careful analysis of Pennsylvania’s appellate decisioins suggest that its law may be read to be consistent with the rules set forth in § 2.”

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History

• The Pennsylvania commentary was uncritical of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978).

• With respect to the “every element necessary” language, the reporter said:– Although the Reporters, joined by most critics, find this

language unduly harsh, it does point to the need to prove the existence of a way to make the product safer; otherwise, how would the presence or absence of an “element necessary to make it safe” be determined?

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History

• The Reporters noted: The most important difference between Pennsylvania law and the position in §§ 2(b) and 2(c) is that Pennsylvania does not require a finding that specific risks arising out of a foreseeable product use were reasonably knowable by the defendant.

• Tincher does not change this.

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History

• In sum, when one views Pennsylvania law and its broad sweep, both risk-utility analysis and the need to introduce evidence of a reasonable alternative are well-established and consistent with the views of this Restatement. The harsh language of the Pennsylvania jury instructions does not set forth the rules for a prima facie case of defect. The instructions are the prism through which the Pennsylvania courts wish the jury to judge cases once a prima facie case as been established.

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History

• Tincher will therefore permit the jury to do what the judge did before and otherwise does not change Pennsylvania law.

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Pre-Tincher v. Omega Flex, Inc.

• The court determines the risks of the danger of the product versus the utility of the device and then the jury decides whether the manufacturer or supplier delivered a product in a defective condition.

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Pre-Tincher v. Omega Flex, Inc.

Ultimately, the question is whether the focus for defective design should be on the product or the manufacturer and not the user.

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PA Law Pre-Tincher v. Omega Flex, Inc.

• Federal courts applying the Pennsylvania law essentially disregarded the Pennsylvania Supreme Court and held that the Restatement Third approach would apply; focus on the user in terms of reasonableness.

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Tincher v. Omega Flex, Inc.Primary Rulings

1. Decisional law announced by Azzarello and its progeny is overruled as to standards of proof, jury instructions and how and by whom “defect is determined

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Tincher v. Omega Flex, Inc.Primary Rulings

1. Decisional law announced by Azzarello and its progeny is overruled as to standards of proof, jury instructions and how and by whom “defect” is determined

2. A Plaintiff may prove a product was designed in a defective condition by showing either that:

(a) the danger is unknowable and unacceptable to the average or ordinary consumer, or (b) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

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Tincher v. Omega Flex, Inc.Primary Rulings

3. The question whether a product is in a defective condition is for the fact finder not the Trial Court unless reasonable minds would not differ on this question—removing from the proceedings the Azzarello pre-trial issue which allowed the Court to decide the policy question whether a product is “legally” unreasonably dangerous.

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Tincher v. Omega Flex, Inc.Primary Rulings

3. The question whether a product is in a defective condition is for the fact finder not the Trial Court unless reasonable minds would not differ on this question—removing from the proceedings the Azzarello pre-trial issue which allowed the Court to decide the policy question whether a product is “legally” unreasonably dangerous.

4. Rejecting the legal principles defining Products Liability set forth in the Restatement (Third) of Torts—which in major part requires the Plaintiff prove an alternative design.

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Tincher v. Omega Flex, Inc.

• The plaintiff will have the option of premising their case either upon “consumer expectations” or “risk-utility” theory or both.

• The calculus for a plaintiff and a plaintiff’s advocate in choosing to pursue either theory or both will likely account, among other things, for the nature of the product, for the theoretical limitations of either alternative standard of proof, for whether pursuing both theories simultaneously is likely to confuse the finder of fact and, most importantly, for the evidence available or likely to become available for trial.

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Tincher v. Omega Flex, Inc.MAJOR EFFECTS

1. Ends the application of different rules in the Federal versus State Courts. Same law now applies to both.

2. Affects already filed cases (need to amend?)3. On existing cases, affects what you have to prove. Do you

have the right expert reports on the right issues?4. What defenses are applicable?

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Tincher v. Omega Flex, Inc.Consumer Expectations Test

“The consumer expectations test defines a “defective condition” as a condition,upon normal use, dangerous beyond the reasonable consumer’s contemplations.”That seems simple enough“The test offers a standard of consumer expectations which, in typical common law terms, states that: the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.”Wait a minute, what does “unknowable” mean“The product is not defective if the ordinary consumer would reasonablyanticipate and appreciate the dangerous condition of the product and the attendant risk of injury of which the plaintiff complains (e.g., a knife).”This is not quite assumption of risk. If the danger is foreseeable does that make the product not defective?“The nature of the product, the identity of the user, the product’s intended use and intended user, and any express or implied representations by a manufacturer or other seller are among considerations relevant to assessing the reasonable consumer’s expectations.”Is the consumer charged with the knowledge in the user manual?

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Tincher v. Omega Flex, Inc. Consumer Expectations Test

Factors:1. The nature of the product, 2. The identity of the user, 3. The product’s intended use and intended user, and 4. Any express or implied representations by a

manufacturer or other seller are among considerations relevant to assessing the reasonable consumer’s expectations. Slip Opinion p. 95.

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How the Consumer Expectations Test will be handled under Tincher is unclear.

Can we get some help from other Jurisdictions?

Barker Ruled

A product is defective in design either (1) if the product has failed to perform as safely as an

ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or

(2) if, in light of the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.

Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978) is cited in Tincher multiple times

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Tincher v. Omega Flex, Inc.

• With strict liability the focus is on the nature of the product and the consumer’s reasonable expectations with respect to the product, rather than upon the conduct of either the manufacturer or the person injured. Slip Opinion p. 63.

“In Cronin, we reviewed the development of the strict product liability doctrine in California at some length, and concluded that, for a variety of reasons, the "unreasonably dangerous" element which section 402A of the Restatement Second of Torts had introduced into the definition of a defective product should not be incorporated into a plaintiff's burden of proof in a product liability action in this state.”

“UNREASONABLY DANGEROUS” IS NOT FOR THE JURY UNDER BARKER

Footnote 7 in BarkerConsumer Expectations is a floor, not a ceiling to the manufacturer’s responsibility.

Footnote 9 in Barker not “intended use” but “reasonably foreseeable use”

The Court also referred frequently and favorably to Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994)

Interpreting Barker, the Soule Court said:At a minimum, said Barker, a product is defective in design if it does fail to perform as safely as an ordinary consumer would expect. This principle, Barker asserted, acknowledges the relationship between strict tort liability for a defective product and the common law doctrine of warranty, which holds that a product's presence on the market includes an implied representation " 'that it [will] safely do the jobs for which it was built. “Under this [minimum] standard," Barker observed, "an injured plaintiff will frequently be able to demonstrate the defectiveness of the product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault.

Campbell v. General Motors Corp. 32 Cal.3d 112, 184 Cal. Rptr. 891, 649 P.2d 224 (1982)

Campbell, a bus passenger, was thrown from her seat and injured during a sharp turn. She sued GM, the manufacturer of the bus, alleging that the vehicle was defectively designed because there was no "grab bar" within easy reach of her seat. Campbell presented no expert testimony, but she submitted photographs of the interior of the bus, showing where safety bars and handles were located in relation to the seat she had occupied. At the conclusion of her case in chief, GM moved for nonsuit, arguing that her evidence of design defect and proximate cause was not sufficient. The trial court granted the motion, but we reversed.

Consider this case, referred to specifically in Soule:

In Soule, The California Supreme Court said “Campbell provided additional strong hints about the proper use of the ordinary consumer expectations prong of Barker.”

“We emphasized that in order to establish a design defect under Barker's ordinary consumer expectations test, it was enough for Campbell to show "the objective conditions of the product" so that the jurors could employ their own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. Since public transportation is a matter of common experience, no expert testimony was required to enable the jury to reach a decision on this part of the Barker inquiry.“ "Indeed, it is difficult to conceive what testimony an 'expert' could provide. The thrust of the first Barker test is that the product must meet the safety expectations of the general public as represented by the ordinary consumer, not the industry or a government agency. '[O]ne can hardly imagine what credentials a witness must possess before he can be certified as an expert on the issue of ordinary consumer expectations.' “

Consider also this case West v. Johnson & Johnson Products, Inc. 174 Cal.App.3d 831, 220 Cal.Rptr. 437 (1985), which the Soule Court referred to as having a “similar effect” to Campbell:

The plaintiff in West became seriously ill in February 1980, during her menstrual period. At this time, there were increasing indications that tampon use sometimes causes toxic shock syndrome (TSS). After reading medical reports, plaintiff's physicians belatedly concluded that she had suffered TSS caused by tampons which defendant had designed and produced. At trial, experts debated the nature of plaintiff's illness, and they also disputed whether the tampon design and materials used by defendant encouraged TSS. The trial court instructed only on the consumer expectations prong of Barker.On appeal, defendant argued that the risk-benefit test alone was proper. However, West agreed …that Campbell does not preclude the consumer expectations test in complex cases involving expert testimony. In a time before general awareness and warnings about TSS, the court reasoned, plaintiff "had every right to expect" that use of this seemingly innocuous product "would not lead to a serious (or perhaps fatal) illness...." Hence, the consumer expectations instruction was appropriate.

Soule and the use of the Consumer Expectations Test in crashworthiness cases

GM suggests that the consumer expectations test is improper whenever "crashworthiness," a complex product, or technical questions of causation are at issue. Because the variety of potential product injuries is infinite, the line cannot be drawn as clearly as GM proposes. But the fundamental distinction is not impossible to define. The crucial question in each individual case is whether the circumstances of the product's failure permit an inference that the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers. We fully understand the dangers of improper use of the consumer expectations test. However, we cannot accept GM's insinuation that ordinary consumers lack any legitimate expectations about the minimum safety of the products they use. In particular circumstances, a product's design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers. In such cases, a lay jury is competent to make that determination.

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Tincher v. Omega Flex, Inc.Risk/ Utility Test

The court wrote that the consumer expectations test alone would not be sufficient to vindicate basic public policy undergirding strict liability. Slip Opinion p. 98.

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Tincher v. Omega Flex, Inc.Risk/ Utility Test

A reasonable person would conclude that the probability and seriousness of harm caused by

the product outweigh the burden or costs of taking precautions.

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Tincher v. Omega Flex, Inc.Risk/ Utility Test

• “Stated otherwise, a seller’s precautions to advert the danger should anticipate and reflect the type and magnitude of the risk posed by the sale and use of the product.” Slip Opinion p. 98-99.

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Tincher v. Omega Flex, Inc.Risk/ Utility Test

The Risk/Utility test is designed to be used in more complex cases, primarily design defect cases

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Tincher v. Omega Flex, Inc.Risk/ Utility Test

• The court reminds the bench and bar that the plaintiff, generally, is the master of the claim in the first instance. Opinion Slip p. 103. The court will be the “gatekeeper” as it is in the other case with respect to summary judgment principles ,but otherwise the balancing of factors in a risk-utility case will be performed by the jury consistent with preexisting Azzarello principles.

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Tincher v. Omega Flex, Inc.

• The factors to be considered in the risk-utility balancing test. They are as follows:(1) The usefulness and desirability of the product-its

utility to the user and to the public as a whole.(2) The safety aspects of the product-the likelihood

that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

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Tincher v. Omega Flex, Inc.

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user’s ability to avoid danger by the exercise of care in the use of the product.

(6) The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. Slip Opinion p. 99.

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Tincher v. Omega Flex, Inc.• The court cites with approval Barker v. Lull

Engineering Co., 573 P.2d 443 (Cal. 1978), which ruled that in certain circumstances where the risk-utility theory is utilized, the burden is be shifted to the defendant to demonstrate that an injury producing product is not defective.

• Tincher refers favorably to Barker but leaves this question open

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Tincher – One Big Question AnsweredA zillion questions remain:

Particularly relevant here, we note that the area of strict liability law remains complex and our decision here does not purport to foresee and account for the myriad implications or potential pitfalls as yet unarticulated or unappreciated. Thus, at the trial level, and as with other legal concepts, “it is incumbent upon the parties, through their attorneys, to aid courts in narrowing issues and formulating appropriate instructions to guide juries in their factual determinations. . . .” It is worth reiterating that “[b]right lines and broad rules always offer a superficially enticing option. However, we cannot elevate the lull of simplicity over the balancing of interests embodied by the principles underpinning [the jurisprudence of the relevant area of law.

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Tincher – One Big Question AnsweredA zillion questions remain:

• Does Pennsylvania now permit the jury to hear and decide whether or not a product is “unreasonably dangerous”? Does introduction of this phrase depend upon whether the plaintiff proceeds per the CET or the RBT?

• Does Pennsylvania still consider the product manufacturer the guarantor of the product’s safety or should the defendant’s duty be characterized in accordance with this analysis: [Tincher, supra. at 88]

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Tincher – One Big Question AnsweredA zillion questions remain:

• Are there any limits to the application of the CET? In other words, are there any products which should not be judged by this legal standard? If so, how is that decided? Can a trial court refuse to allow a party to present her case per the CET? How can court exclude the application of the CET in light of the proposition established in Tincher that the Plaintiff is entitled to choose which theory of liability to submit for jury resolution?

• What are the appropriate jury instructions defining the CET; • what are the parties’ respective burdens of proof; • What are the relevant defenses to such a claim?

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Tincher – One Big Question AnsweredA zillion questions remain:

• Under what circumstances can a plaintiff proceed with dual theories—CET and RBT? Would a jury verdict finding liability on one theory and not the other be considered inconsistent?

• Under the CET, what is a danger beyond the contemplation of the ordinary consumer? • If the court determines that the standard for invoking the CET is the danger is

“unknowable” and if there are warnings, does the warning make the danger "knowable". • If the danger is known to the actual user (subjective test) will that defeat a claim when the

danger was unknowable to the ordinary or average consumer (Objective test). In other words is knowledge a defense in the sense of assumption of risk or in some lesser sense?.

• What needs to be knowable? Drug labels have warnings, precautions and reported side effects. What if the problem suffered by the plaintiff was a reported side effect, but not in warnings or precautions? Does that make the side effect "knowable?” What about info findable in the internet?

• Tincher was a design defect case and the opinion does not discuss defective warnings or instructions as a claim in any detail. What are he considerations for defective warnings. Is a product defective if there are insufficient warnings?

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Tincher – One Big Question AnsweredA zillion questions remain:

Under the RBT was are the relevant legal and factual defenses? In adjudicating the RBT in warnings cases, what are the costs of taking

precautions? A warning seems particularly low cost. Yet, a warning might adversely affect sales of the product. Is that a cost?

How is an “unacceptable” risk determined? What evidence is probative. • Can defendants offer evidence of absolute risk to determine if risk is

"acceptable". For example GM ignition switch, millions of cars but only 32 deaths. Absolute risk if 2.6 million cars 0.000012 or 0.0012%. The chance of being struck by lightning in a given year is higher 0.000046 or 0.0046%.

• Can evidence that the device met standards inform whether the risk is acceptable? In other words, do standards set by governments or the scientific community (e.g. ANSI) help define what is acceptable? If standards are admissible then can plaintiff offer evidence that standards are out of date?

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Tincher – One Big Question AnsweredA zillion questions remain:

• How do we define the details of the " burden or costs of taking precautions"

• When? At the time of design? At the time of manufacture? At the time of sale? At the time of injury?

• What if a manufacturer finds out about a risk after sale, and a recall would be simple and fairly inexpensive, like a change in instructions?

• What about drug and medical device cases? If 402A remains, does that mean that comment k remains and the recent jurisprudence of failure to warn, and failure to test still stand? Is “learned intermediary” still viable, especially in the age of direct to consumer advertising

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Tincher v. Omega Flex, Inc.Areas Of Dispute

• Has the court endorsed the policy underlying the Restatement 402A, that a manufacturer is effectively the guarantor of its product’s safety. Footnote 12, p. 52, Slip Opinion.

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Tincher v. Omega Flex, Inc.Areas Of Dispute

• There is some language in Justice Castille’s opinion to support continued use of the Berkebile/Azzarello language. Opinion Slip p. 57. Both Berkebile and Azzarello spoke to “broader considerations” which feature a warranty rationale. That approach is not wrong, but simply, according to Tincher, did not give the jury sufficient guidance.

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Tincher v. Omega Flex, Inc.Areas Of Dispute

• Did Tincher eliminate the use of “every element” necessary language or “guarantor” wording except to the extent that it stood alone with the jury unable to balance risk-utility.

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Tincher v. Omega Flex, Inc.Jury Instructions

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Tincher v. Omega Flex, Inc.Jury Instructions

With respect to the jury charge, the “crucial role of the trial court is to prepare a jury charge that explicated the meaning of ‘defective condition’ within the boundaries of the law, i.e., the alternative test standard, and the facts that pertain.” Opinion Slip p. 132-133.

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Tincher v. Omega Flex, Inc.

• Proposed new jury charge based upon Tincher:Option 1:

• Plaintiff(s) have brought a strict liability cause of action.• Plaintiff(s) must prove that the product is in a defective

condition• Plaintiff (s) may prove the defective condition by showing

either that: (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

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Option 1 cont’d.

A manufacturer may not preclude and injured plaintiff’s recovery by forcing him to prove negligence in the manufacturing process.

The seller must provide with the product every element necessary to make it safe for use.

The seller is the guarantor of the product and you may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.

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Option 1 cont’d.

A seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that public has a right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind there goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption to be placed on those who market them, and be treated as a cost of production; and that a consumer of such product is entitled to the maximum of protection at the hands of someone, and proper persons to afford it are those who market the product.

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Option 1 cont’d.

Where the plaintiff is claiming a failure of consumer expectation, you should consider the following:

1. The nature of the product;2. The identity of the user;3. The product’s intended use;4. The intended user of the product;5. Any express or implied representation

by a manufacturer or other seller.

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Option 1 cont’d.

Powerful reasons support protections of a consumer’s expectations of product safety that arise from the safety representations of a manufacturer of other seller, whether those representations be expressed or implied. When making safety “promises” in an effort to sell its product, a manufacturer seeks to convince potential buyers that its affirmations are both valuable and true. Safety information is valuable to users because it provides a “frame of reference” that permits a user to shift his or her limited understand an other resources away from self-protection toward the pursuit of other goals – which in turn shifts responsibility for protecting the user to the manufacturer.

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Option 1 cont’d.

In this manner, true safety information adds value to the product by enhancing the user’s autonomy, for which value the consumer fairly pays a price. So, if the information is not true but false, the purchaser loses significant autonomy, as well as the benefit of the bargain. Since an important purpose of the law is to promote independence, and the equality of the buyer to the seller as reflected in their deal, the law fairly may demand that the seller repair any underlying falsity and resulting inequality in the exchange transaction if harm results.

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Option 1 cont’d.

Where a plaintiff pursues a risk-utility theory, the following factors should be considered:

(1) The usefulness and desirability of the product-its utility to the user and the public as a whole.

(2) The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same needs and not be as unsafe.

(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility

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Option 1 cont’d.(5) The user’s ability to avoid danger by the exercise of care in the

use of the product.(6) The user’s anticipated awareness of the dangers inherent in the

product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

[In a prescription drug case, for some products there is not alternative design.]

[It may be appropriate when proceeding upon a risk-utility theory to shift the burden to the defendant the burden of production or persuasion to demonstrate that an injury producing product is not defective in design.]

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Option 2

Plaintiff(s) have brought a strict liability cause of action.Plaintiff(s) must prove that the product is in a defective

condition.Plaintiff(s) may prove the defective condition by

showing either that: (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

A manufacturer may not preclude an injured plaintiff’s recovery by forcing him to prove negligence in the manufacturing process.

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Option 2 cont’d.

Where the plaintiff is claiming a failure of consumer expectations, you should consider the following:

6. The nature of the product;7. The identity of the user;8. The product’s intended use;9. The intended user of the product;10. Any express or implied representations by

a manufacturer or other seller.

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Option 2 cont’d.

Where a plaintiff pursues a risk-utility theory, the following factors should be considered;

(8) The usefulness and desirability of the product-its utility to the user and to the public as a whole.

(9) The safety aspect of the product-the likelihood that it will cause injury, and the probable seriousness of the injury.

(10) The availability of a substitute product which would meet the same need and not be as unsafe.

(11) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

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Option 2 cont’d.(12) The user’s ability to avoid danger by the exercise of care in the

use of the product.(13) The user’s anticipated awareness of the dangers inherent in

the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(14) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

[In a prescription drug case, for some products there is no alternative design.]

[It may be appropriate when proceeding upon a risk-utility theory to shift the burden to the defendant the burden of production or persuasion to demonstrate that an injury product is not defective in design.]