PHILADELPHIA – After hearing oral arguments, the Supreme Court of Pennsylvania is due to decide an action which will have great import for future product liability trials statewide, as it determines whether or not trial courts are permitted to prevent defendants from using evidence pertaining to industry standards.
The state’s high court will decide the fate of Sullivan Et.Al v. Werner Company Et.Al, which not only featured a $2.5 million jury verdict at the trial court level, but also established precedent with respect to evidentiary limits in product liability actions at an appellate level, as decided by the Superior Court of Pennsylvania in April 2021.
In his initial case, plaintiff Michael Sullivan alleged that Werner Company’s Baker-model scaffolds were designed defectively, arguing workers could be rotated off the scaffold’s deck pins, which would later lead the platform to collapse.
Sullivan and his wife Melissa initially filed suit against both Werner and Lowe’s, after Michael used the Baker scaffold on the job while working at Albert Schweitzer Elementary School in Levittown in June 2014.
At that time, the deck pins on the scaffold Sullivan used came loose, which then caused the platform to fall out from under him. In the incident, Sullivan broke his tailbone and suffered a litany of other injuries. Sullivan claimed he has continuing back pain, which requires ongoing care and physical therapy, in addition to treatment for multiple hernias.
Even though the scaffold met safety guidelines from both the American National Standards Institute and the Occupational Safety and Health Administration, Sullivan’s counsel filed a motion in limine to prevent the company defendants from bringing evidence at trial pertaining to those guidelines – saying that the state Supreme Court’s Tincher v. Omega Flex decision did not prevent barring such evidence in Pennsylvania product liability actions.
A Philadelphia court judge and jury concurred, with the latter awarding Sullivan $2.5 million for his injuries. The defendants then appealed to the Superior Court.
In a 44-page ruling from the Superior Court’s panel of Victor P. Stabile, Megan McCarthy King and Dan Pellegrini issued on April 15, 2021 not only upheld the $2.5 million verdict, but also upheld the determination that defendants were barred from using evidence on a given device’s industry standards.
Werner Company and Lowe’s Companies, Inc. subsequently appealed this ruling to the state Supreme Court.
The case has attracted a considerable degree of outside interest and support of both sides, with the American Association for Justice and Pennsylvania Association for Justice being among those filing amici briefs supporting the plaintiffs – and the U.S. Chamber of Commerce, Pennsylvania Coalition for Civil Justice Reform, Pennsylvania Manufacturers’ Association and the Product Liability Advisory Council, Inc. being among those filing amici briefs supporting the defendants.
Oral Arguments In Sullivan Et.Al v. Werner Et.Al
Arguing for the appealing Werner defendants in the case was James M. Beck, Senior Life Sciences Policy Analyst of Reed Smith, in Philadelphia.
“We have three main points. First, there should be no bright-line rule here, either for or against admissibility of compliance evidence. Tincher overruled the absolute separation between negligent conduct and strict liability product condition, and instead adopted an incremental, pro-jury approach. And thus, the per se exclusionary rule imposed by the Lewis [v. Coffing Hoist Division, Duff-Norton Company, Inc.] case and reinstated by the Superior Court here cannot stand,” Beck said.
“Second, Tincher restored to juries the determination of whether product defects create unreasonably dangerous products. That’s the normative principle now, and here, the plaintiffs chose to prove defect by answering the risk-utility prong of Tincher’s composite test involving alternative designs. Lewis itself recognized the relevance of compliance evidence to these issues, so did this jury. But the question about OSHA not only went unanswered, but the product was altered to prevent this jury from learning of the product’s OSHA compliance.”
Beck said that what he and his co-counsel were seeking in this matter was “not just a majority rule nationwide, but that every state [adhering to Section 402A of the Restatement (Second) of Torts in the country] where juries decide these questions does recognize that standards compliance evidence, properly introduced, is ordinarily relevant to whether product designs are unreasonably dangerous, and therefore, defective.”
“Standards compliance evidence is admitted almost everywhere, almost every day, without any of the speculative, adverse effects mentioned in the opposing briefs,” Beck said.
Beck clarified that the “relevance of the particular type of compliance evidence” would determine its admissibility on a case-by-case basis.
Representing the Sullivan plaintiffs in oral arguments was Howard Bashman, a Fort Washington-based attorney.
Bashman explained that the subject accident in this case occurred when the scaffolding at issue was moved around and in the process of being used, as opposed to when the scaffolding was first erected and remained stationary. This, Bashman outlined, is a key point when considering the outcome of this case.
“The defect [here] is as a result of using the product, as opposed to the product in its original condition once it’s constructed. Now, I believe that the industry and governmental standards that my esteemed adversary is discussing focus on the condition of the product when it’s originally constructed, and not necessarily when it’s used. And in fact, the plaintiffs put in evidence of these other scaffoldings that don’t manifest this defect when they’re moved around. The jury in this case was laser-focused on the precise product that was being challenged. And as you’ve heard this morning, what the defense would like to do is to bring in examples of similar scaffoldings [conforming] to its own industry and governmental standards that it says show that it at least meets some minimum safety level,” Bashman stated.
“But that puts the plaintiff(s) in a case like this at a severe disadvantage, because the jurors are going to think that the folks who came up with these industry and governmental standards are experts as compared to themselves, and that the industry and governmental standards considered the evidence, usage and the condition of the product that’s at issue in the case – which, as Justice [Christine] Donohue, I believe, correctly observed, there’s no evidence whatsoever to establish that and there’s no way to cross-examine the creators of these standards to determine what level of thoughtfulness went into it.”
Bashman added that the Court should uphold the tenets of the prior Lewis decision – since Tincher did not require its overruling – and that Lewis explained allowing the admissibility of industry standards evidence would both “improperly divert the attention of the jury from the product to the reasonableness of the manufacturer’s conduct in choosing its design”, and “create the type of sideshow and trial within a trial that would be severely disadvantageous to the plaintiff, because it’s impossible to cross-examine this industry and governmental standards evidence.”
“We believe this Court got it exactly right in the Roverano [v. John Crane, Inc.] decision, where this Court said that in Pennsylvania, strict liability law remains a separate cause of action from negligence,” Bashman said.
Supreme Court of Pennsylvania case 18 EAP 2022
Superior Court of Pennsylvania case 3086 EDA 2019
Philadelphia County Court of Common Pleas case 161003086
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com