Is the Verdict Still Out on Whether, Post-Tincher, Defense Evidence of a Product’s Compliance with Regulatory and Industry Standards is Admissible at the Trial of a Pennsylvania Strict Product Liability Case?
May 9, 2017
Types : Alerts
In Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court reversed course by overruling its longstanding decision in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), and holding, in a strict product liability design defect case, that it should be the jury as the finder of fact – not the judge ruling as a matter of law (as Azzarello had required) – that resolves the threshold question of whether a product is “unreasonably dangerous.” Tincher, 104 A.3d at 406-07. The Tincher court anticipated that the ramifications of its decision would develop on a case-by-case basis. Id. at 410.
Although trial evidence that a defendant’s product complies with regulatory or industry standards would not constitute conclusive proof that the defendant’s product was safe as a matter of law, such evidence is useful to the defendant in proving that its product was not defective or unreasonably dangerous, and it is probative on that point. But, in Azzarello and its progeny, there was a conscious effort on the part of Pennsylvania courts to remove all negligence concepts from the jury’s consideration in a strict product liability case. As part of that effort, the Supreme Court decided in Lewis v. Coffing Hoist Div., Duff-Norton, Inc., 528 A.2d 590 (Pa. 1987), a strict product liability design defect case, that defense evidence of a product’s compliance with regulatory and industry standards was generally inadmissible across-the-board because it would incorporate negligence theories into strict product liability analysis. Id. at 594. Moreover, in Lewis, the Supreme Court prohibited the introduction of such evidence at trial because “it is the product itself which is on trial, and not the manufacturer’s conduct,” id. at 593, and because evidence of industry standards “improperly focuses on the quality of the defendant’s conduct in making its design choice, and not on the attributes of the product itself.” Id. at 594.
The Tincher court did not explicitly overrule Lewis or its progeny, but it explicitly recognized that Lewis is a case in harmony with Azzarello, which Tincher did overrule. Tincher, 104 A.3d at 368. And, it recognized that Tincher may have an impact regarding the availability of negligence-derived defenses that were previously unavailable in the strict product liability context. Id. at 409. Recently, in Renninger v. A&R Machine Shop, No. 1896 WDA 2015, 2017 WL 1326515 (Pa. Super. Ct. April 11, 2017), a three-judge panel of the Pennsylvania Superior Court (Pennsylvania’s intermediate appellate court) raised, but did not resolve, the question of whether Lewis survives Tincher, and whether, post-Tincher, defense evidence of a product’s compliance with regulatory and industry standards should be admissible at the trial of a strict product liability design defect case; however, Renninger viewed Tincher as creating uncertainty about the survival of Lewis and its progeny post-Tincher. Id., 2017 WL 1326515 at *6-*11. Yet, in the face of Tincher and in the face of Renninger’s observations about Tincher, in American Honda Motor Co. v. Martinez, No. 445 EDA 2015, 2017 WL 1400968 (Pa. Super. Ct. April 19, 2017), an even more recent decision in a post-Tincher strict product liability design defect case, a different three-judge panel of the Superior Court simply adhered to Lewis and its exclusion of defense evidence of regulatory and industry standards because, according to this panel, the Supreme Court’s ruling in Lewis was binding precedent. Id., 2017 WL 1400968 at *4. Remarkably, the Superior Court did not engage in the post-Tincher analysis that the Supreme Court, itself, seemed to anticipate in view of its overruling of Azzarello and its discussion of the possible availability of negligence-based defenses in a post-Tincher strict product liability action. In fact, the American Honda court not only flatly upheld the exclusion of trial evidence that the defendant’s product complied with regulatory standards, it did so despite the defendant’s strong argument that the alternative design that the plaintiff’s expert had proposed in his opinion testimony was unlawful under federal regulations. Id., 2017 WL 1400968 at *4, *7-*8.
It is doubtful that the Superior Court’s opinion in the American Honda case will be the last word on this issue. Trial evidence of a product’s compliance with regulatory and industry standards is central to the issue of whether or not a product is unreasonably dangerous, and because, under Tincher, the jury as the finder of fact is now tasked with resolving that issue, the exclusion of such evidence of reasonableness on the basis of precedent that has been questioned by the very court that issued that precedent makes little sense.