Defense bar, product manufacturers oppose suggested jury instructions in product liability litigation

By Nicholas Malfitano | Sep 29, 2016

PHILADELPHIA – Are suggested jury instructions in products liability cases now too amenable towards plaintiffs? A sizable group of manufacturers and members of the Pennsylvania defense bar are likely to say, “Yes.”

That perspective is in response to a recent revision of the products liability jury charges by the Pennsylvania Supreme Court Committee for Suggested Standard Jury Instructions (SSJI) civil instructions subcommittee – the first revision of those jury charges in over 40 years.

The changes came on the heels of the November 2014 Supreme Court of Pennsylvania decision reached in Tincher v. Omega Flex, a product liability lawsuit. 

In the case, plaintiffs brought 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.

The jury found for the plaintiffs on a strict liability count, but in favor of Omega Flex on a negligence count. This led Omega Flex to appeal, and the Supreme Court of Pennsylvania eventually heard the case.

According to the Supreme Court, the issue at hand was whether it should replace strict liability guidelines from Section 402A from the Second Restatement of Torts with the guidelines from the Third Restatement.

The Third Restatement includes qualities like foreseeability and reasonableness in such faulty design cases, and also expounds on whether a different design could have minimized or eliminated the concept of risk.

This stood in direct contrast to the guidelines in Section 402A from the Second Restatement of Torts, which demarcated a line between negligence and strict liability. Those concepts were introduced under the Azzarello v. Black Bros. Co. decision from 1978.

But in Tincher, the Supreme Court eliminated this dichotomy, in favor of liability guidelines being connected to negligence concepts, and introduced two new tests by which plaintiffs could prove a product was defective: The Consumer Expectations Test and The Risk-Utility Test.

In the Consumer Expectations Test, a product is defective if through standard use, it is “dangerous beyond the reasonable consumer’s contemplations.”

Conversely, in the Risk-Utility Test, a product is defective “when the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions," a quality evaluated by seven factors dubbed “The Wade Factors”:

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;

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 and 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; and

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

The Supreme Court’s majority opinion in Tincher speaks to an “incremental approach” utilizing “judicial modesty” with respect to future development in the areas of product liability and strict liability litigation.

In response, 39 members of the defense bar and 20 prominent product manufacturers signed on to a 10-page letter addressed to the subcommittee – claiming its revised jury instructions do not take their perspective into account, and misinterpreted the will and intent of the Supreme Court in the aftermath of Tincher.

James Beck of Reed Smith in Philadelphia said the new instructions largely fail to follow Tincher at all.

"The new instructions retain the Azzarello ‘any element’ test which Tincher rejected and completely omit the ‘unreasonably dangerous’ element of Section 402A that Tincher explicitly required now be resolved by the jury," Beck said.

"The jury cannot decide if a product defect renders a product ‘unreasonably dangerous’ without ever having heard the term."

Beck explained, in his view, the rationale behind the subcommittee omitting “unreasonably dangerous” was virtually the same reasoning used in Azzarello, which Tincher overruled – and that the subcommittee’s notes also maintain the idea of “negligence concepts not being proper in strict liability," another point at odds with Tincher.

“In addition, the SSJI purport to resolve issues of evidence, such as state-of-the-art and contributory fault, that Tincher reserved, and do so on the basis of the negligence/strict liability dichotomy that Tincher rejected," he said.

"The new SSJI do not reflect what Tincher did, but rather are attempt to continue Azzarello despite that case having been expressly overruled,” Beck stated.

Beck labeled the SSJI as “based on little more than the personal preferences of a majority of the committee’s members.”

The civil instructions subcommittee’s chair, Lee C. Swartz of Tucker Arensberg in Lemoyne, could not be reached for comment.

Beck says the subcommittee had not operated publicly with SSJI modifications.

“Changes of this magnitude should require public notice and comment, but that is never the way that this committee has operated. Thankfully these instructions have no force of law,” Beck said.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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