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Restatement Rift Remains as Bar Awaits Tincher Ruling

August 26, 2014

The Legal Intelligencer
By Saranac Hale Spencer, Max Mitchell and P.J. D'Annunzio

The products liability bar has resigned itself to the confused state of the law in Pennsylvania since the rift between the state and federal courts emerged about five years ago.

But as the bar awaits a decision from the state Supreme Court as to which standard will apply to products liability cases in the state, both sides are hoping for clarity.

That clarity could come from the court’s decision in Tincher v. Omega Flex, which was argued last October and addresses the question of whether the Restatement (Third) of Torts or the Restatement (Second) is the law in Pennsylvania.

Pennsylvania products liability law has maintained a rigid distinction between strict liability and negligence since the 1970s, when the Supreme Court established in Azzarello v. Black Brothers that the supplier of a product is the guarantor of its safety, emphasizing that negligence and strict liability are to remain separate.

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Defense attorneys who spoke with The Legal agreed that, if defense attorneys are not already pushing for the courts to apply the Third Restatement, they should be.

“Each individual defense attorney is, or should be if they’re not already, advocating for the adoption of the Third in their legal papers,” said Jeremy D. Mishkin of Montgomery McCracken Walker & Rhoads. “Certainly good defense counsel should be actively advocating it, and I think, in most cases, they are.”

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