In Tincher v. Omega Flex, Inc., 104 A. 2d 328 (Pa. 2014), the Pennsylvania Supreme Court cast aside more than 35 years of precedent when it reformulated the standards determining the circumstances under which a product is considered defective within the context of the Restatement (Second) of Torts, Section 402 (A). From the court’s decision in Azzarello v. Black Bros. Co., 391 A. 2d 1020 (Pa. 1978) until Tincher, a product defect existed if the product lacked any feature necessary for it to safely perform its intended function or had any condition that rendered it unsafe for its intended use. Tincher rejected these criteria, holding instead that a plaintiff could prove the existence of a product defect by showing that (1) the danger posed by the product is unknowable and unacceptable to the ordinary consumer or (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

While Tincher radically altered Pennsylvania’s products liability landscape, it left a number of questions unanswered, including the interplay of negligence and strict liability concepts; limits, if any, on the role that expert witnesses’ testimony might play in the determination of these issues; and which party needed to carry the burden of persuasion in “risk/utility” balancing cases.

In the three and one-half years since Tincher, other courts have begun to fill in these gaps, and it now appears that help in this endeavor may be on the way from an unlikely source − Tincher itself. In addition to setting the new product defect standards, the Supreme Court remanded the case to the trial court for a determination of whether Omega Flex was entitled to judgment notwithstanding the verdict or a new trial. Upon remand, Omega Flex dropped its request for a judgment notwithstanding the verdict, but maintained its request for a new trial, arguing that it was entitled to have its liability determined under the new standards enunciated by the Supreme Court.

The trial court rejected Omega Flex’s request, ruling that there was sufficient evidence to support a verdict regardless of which definition was applied. Omega Flex appealed the trial court’s decision, and on February 16, 2018, the Pennsylvania Superior Court (Pennsylvania’s intermediate appellate court) reversed the trial court, holding that a jury charge that does not conform to existing law constitutes fundamental and reversible error. In its ruling, the Superior Court stressed that the determination of whether there was a defect was in most instances a question of fact for the jury rather than a question of law for the court.

While the Tinchers have the option of petitioning for an appeal, we believe the chances of success are low given that the present decision rests on the well-settled principle of fundamental error. Thus it appears likely that Tincher will return to the trial court and hopefully contribute to the clarification of some of the confusion it has created. We will continue to monitor developments as the case moves forward, but please feel free to contact us if you have any questions in the interim.