Potentially the most important Pennsylvania product liability case in a generation was argued before the Pennsylvania Supreme Court on October 15, 2013.  That’s Tincher v. Omegaflex, No. 17 MAP 2013. As we mentioned before, the Pennsylvania high court took Tincher expressly to decide whether current Pennsylvania product liability law, based on Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), and that court’s extremely strict form of strict liability under Restatement (Second) of Torts §402A (1965), should be maintained, or, alternatively, be replaced by the Third Restatement of Torts.  As we’ve also discussed, the Third Restatement’s largely (except manufacturing) negligence basis for product liability would eliminate a number of plaintiff-friendly evidentiary exclusions that have arisen under Azzarello’s progeny.  Tincher is a big deal – even by the standards of Biden-speak.

Bexis filed an amicus brief in Tincher for PLAC, but since the argument was in Pittsburgh, he didn’t attend the oral argument.  The argument, however, was eventually televised, and he has been able to obtain a CD of the proceedings.  We’d post it, but the CD came with a warning from the Pennsylvania Supreme Court that it was not for public use, so we’re not about to get crosswise with the justices.  You’ll just have to settle for our summary. We’re not starting at the beginning.  Rather, we’ll begin at 40:51 on the argument videotape, where counsel argued:

I would not be adverse to Azzarello being overruled; that I do believe that it’s caused headaches. [comment from Justice Saylor omitted]

It’s caused headaches for the Court.  It’s caused headaches for trial courts and I think the time has come for a modification or overruling of Azzarello and moving the courts of our state back to strict liability as it’s followed by other jurisdictions, without these kinds of problems; these kinds of headaches.

This quote wouldn’t be surprising if it had been uttered by counsel for defendant as appellant, seeking to change Pennsylvania law.  But that’s the point − it wasn’t.  The statement we just quoted was made by counsel for plaintiffs as appellee.  When even the plaintiffs’ side (albeit represented by a firm that is often on the right side of the “v.”) is running full tilt away from the Azzarello decision, it’s reasonable to think that “the time has come” for a new day in Pennsylvania product liability law.  It can’t come a moment too soon.

Nowhere in the entire argument did we see any support for keeping the existing Azzarello standard as the foundation of Pennsylvania product liability law − not from the parties and not from the bench.  The major bone of contention was what product liability regime should replace Azzarello.  Should the Pennsylvania Supreme Court (as the Third Circuit has predicted) adopt the Restatement Third of Torts (technically §§1-2)?  Alternatively, should the court adopt a more regular approach to Restatement (Second) of Torts §402A (1965), that wouldn’t rigidly separate negligence and strict liability, would permit juries to decide if a product were “unreasonably dangerous,” and would have more appropriate jury instructions?

The biggest source of questions directed to both sides concerned the Third Restatement’s requirement of a reasonable alternative design in design defect cases.  That was odd, because the plaintiffs in Tincher were simultaneously arguing that the alternative design requirement didn’t matter in their case because they had in fact proposed such a design alternative (cast iron pipe, as opposed to the lighter and more flexible – but more easily penetrated – design the defendant used).  Therein lies the rub.  The defendant argued repeatedly, and the plaintiff never really refuted the point, that the alternative design requirement was no great change to Pennsylvania law because any serious plaintiff already advances an alternative design.  One phrase used was the law “catching up to” legal practice.  Moreover, quite a few Pennsylvania cases have already required alternative designs even under current Azzarello law.

Some of the justices (Baer and McCafferty in particular) seemed worried about what they called “outlier” cases – asbestos and pharmaceuticals were mentioned – where the product essentially was what it is and no real alternative design exists.  There’s a really simple answer to that concern, which unfortunately wasn’t emphasized at oral argument.  In such situations, plaintiffs don’t even bring design defect claims, even now.  Instead, they bring warning claims.  Where product design is fixed, usually by chemistry, as with both prescription drugs and asbestos (although exceptions exist), then if that product carries with it an inherent risk that cannot be designed away, the remaining “defect” is failure to warn of the risk, not the risk’s bare existence.  That’s been the law for years with prescription drugs in Pennsylvania.  Strict liability design claims have been held precluded by Restatement §402A, comment k. Hahn v. Richter, 673 A.2d 888 (Pa. 1996).  That’s de facto the case with asbestos as well, as the overwhelmingly preferred cause of action for Pennsylvania asbestos plaintiffs has always been failure to warn.

Thus, as Justice Saylor pointed out, the alternative design element of the Third Restatement isn’t really all that great of a change.  Crashworthiness cases were mentioned as an example.  Crashworthiness as consistently applied in Pennsylvania for decades has alternative design as an absolute element, but plaintiffs haven’t been prevented from bringing (or winning) those types of claims.

As plaintiffs-appellees eventually got around to arguing, the crux of this particular appeal isn’t really alternative design, even though that aspect of the Third Restatement received the lion’s share of everyone’s attention.  Either:  (1) because it added to plaintiffs’ credibility with the jury, or (2) to avoid the defendant’s argument that plaintiffs were advancing a “fireworthiness” (Tincher involved a lightning-ignited house fire) theory that required alternative design, the plaintiffs’ case at trial did in fact feature an alternative design.

The issues that would require reversal of the Tincher verdict, should Azzarello be overruled, were discussed primarily in the plaintiffs’ portion of the argument, and towards the end.  In response to a question from Justice Baer, plaintiffs mentioned industry standards and state of the art evidence. Plaintiffs argued that Pennsylvania should keep the “imputed knowledge” aspect of strict liability.  Fortunately, plaintiffs didn’t seem to get much traction on that issue, which to us is one of the worst aspects of Azzarello as it permeates all strict liability theories, not just design.  Nobody on the Court followed up, and the argument quickly shifted back to alternative design.  Plaintiffs tried again with the last question of the argument – the only one asked by newly-minted Justice Stevens.  That question was quite neutral, whether overruling Azzarello would affect the jury charge and verdict slip.  The answer to that was, quite appropriately, yes.  Overturning Azzarello would entail ditching, or at least adding to, the “any element necessary” instruction specified by that case.  Explicit risk/utility instructions would be required, since this issue would be restored to the jury for its consideration.  In addition, any overruling of Azzarello would require another question to be decided by the jury, and thus added to any verdict form. That would be whether the product is “not reasonably safe” (the Third Restatement formulation) or “unreasonably dangerous” (the §402A formulation).  These issues, rather than alternative design, are what the Tincher case itself really should turn on, since they would be the source of the reversible error should, as seems likely, Azzarello is rejected by the Court.

After this oral argument, it would be surprise us a great deal were Azzarello to survive in its present form. None of the justices, in their questioning, defended it; nor (as mentioned) did either side arguing the case.  The strict separation of negligence and strict liability, the removal of the unreasonably dangerous issue and risk/utility balancing from jury consideration, the evidentiary exclusions (which concern certain evidence deemed to pertain to “negligence concepts”), and the bare bones jury instructions – all seem poised to fall.  The major suspense, as we see it, is whether the Court adopts the ALI’s Third Restatement or else contents itself with some more “mainstream” (the word used in the argument) interpretation of Restatement §402A.  As to that, we guess Justice Stevens will be the swing vote, and he wasn’t tipping his hand in the oral argument.