HARRISBURG – A subcommittee charged with developing jury instructions following a Pennsylvania Supreme Court decision on product liability has no plans to change the language of its new instructions, for now.

Defense lawyers have vigorously opposed many elements of the new suggested instructions, issued nearly two years after the 2014 Tincher Supreme Court decision, which radically changed existing product liability law in place for close to 40 years.

The gulf between defense lawyers and the subcommittee covers a number of areas, but the “most glaring specific deficiency,” according to critics of the instructions, is the failure to include any instructions relating to whether a product must be “unreasonably dangerous” for strict liability to apply.

The subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions met in September following the issuing of its new instructions earlier in the summer. There were suggestions prior to the meeting that a review might be announced.

But that is not happening, Lee Swartz, the chair of the subcommittee on civil trials, told the Pennsylvania Record.

While Swartz did not rule out a possible review in the future, he said the committee heard all the arguments against, as well as the plaintiff points of view and those of academics and the judiciary, before issuing the instructions. He said the American Law Institute supports the subcommittee’s position.

He conceded he and the committee might end up reviewing these instructions again following cases before the appellate courts. “No instructions are set in stone,” Swartz said.

This is a view shared by defense lawyers, to the extent they believe that the issues will be heard and debated in trial and appellate courts.

Defense lawyers, along with major corporations, wrote a hefty 10-page letter of dissent decrying many aspects of the new instructions.

Louis Long, who took over as president of the Pennsylvania Defense Institute, revealed deep skepticism that a new set of instructions acceptable to both sides might be formulated.

“In a perfect world, the two competing sides would be able to negotiate and formulate a fair and even-handed set of jury instructions that would be acceptable to both sides and not lead to challenges,” he said in an interview with the Legal Intelligencer.

He continued, “But it appears that there is a significant philosophical conflict with the approach taken by the standard jury instructions subcommittee and the defense bar, and I don't know whether the positions are reconcilable.”

It will be in the courts that the issues likely will be decided, where defense attorneys have to be prepared to take their cases to trial judges, then, if needed, to the appellate court.

This dispute is anchored in the Tincher decision handed down by the state Supreme Court in late 2014. It essentially overturned key aspects of product liability dating back to the earlier Azzarello decision of 1978.

The plaintiffs brought an action against a flexible natural gas pipe company because electricity resulting from a lightning bolt burned a hole in the plaintiffs' gas pipe in their residence, supposedly causing their house to burn down.

In Tincher, the court overruled entirely a key aspect of Azzarello, that of the separation of the concepts of negligence and strict liability.

This means that juries could consider whether a product defect must be "unreasonably dangerous" to support strict liability.

Overall, the decision handed the baton to lower courts to preside over, and decide on, the development of product liability going forward, free of the handcuffs of Azzarello.

In a letter to the jury instructions subcommittee - signed by defense lawyers, tort reform organizations, manufacturing groups and major companies - including the defendant in the Tincher case, Omega Flex. It was argued that many of the instructions departed from what the Pennsylvania Supreme Court held.

“Beyond that, and contrary to the 'modesty' repeatedly cautioned by the court in Tincher,  the subcommittee has made what we consider to be questionable predictions about multiple issues that Tincher deliberately declined to decide,” the letter read.

The lawyers and companies claim the new instructions ignore the “reasons why the Court emphatically overruled Azzarello v. Black Brothers Co. and with it almost 40 years of Pennsylvania product liability precedent that had been based on the now-repudiated strict separation of 'negligence' and 'strict liability' concepts espoused in Azzarello.”

It continued, “The most glaring specific deficiency in the current SSJI draft is its failure to include any instruction – indeed, any mention whatsoever – of the requirement that, to support strict liability, a product defect must be ‘unreasonably dangerous.'”

In the context of a strict liability claim, whether a product is defective depends upon whether that product is “unreasonably dangerous,” according to the opponents of the instructions.

The letter also argued that following the “demise of Azzarello, the court adopted an ‘incrementalist’ approach, recognizing that 'judicial modesty counsels that we be content to permit the common law to develop incrementally.'”

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