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There’s No Turning Back Now: Product Liability Jury Instructions in the Wake of Tincher v. Omega Flex

June 1, 2018

Defense Digest, Vol. 24, No. 2, June 2018

By Michael A. Salvati, Esq.* and Keith D. Heinold, Esq.*

Key Points:

  • Very little has been settled in product liability law since the Pennsylvania Supreme Court’s landmark ruling in Tincher v. Omega Flex.
  • In the fight to fill the vacuum left by Tincher, the plaintiffs’ bar has sought to cling to pre-Tincher jury instructions.
  • In Tincher II, the Superior Court made clear that the Supreme Court meant what it said in Tincher I, that it is “fundamental error” to give Azzarello-era instructions.


Pennsylvania product liability law has been in a state of uncertainty and upheaval since November 2014, when the landmark decision Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), overruled the formerly seminal case of Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). Azzarello was noteworthy for endorsing an onerous jury instruction, holding that a product was defective if it “lacked any element necessary to make it safe for its intended use, or contained any element that made it unsafe for its intended use.”

For these and other reasons, Azzarello was long criticized by the defense bar. Tincher overruled Azzarello and created two new tests for product defect—the consumer expectations test and the risk-utility test. The Pennsylvania Supreme Court recognized that overruling a foundational case and instituting new standards of proof raises many questions about appropriate jury instructions and evidentiary issues. However, it expressly left those questions open for development by targeted advocacy on a case-by-case basis.

Since then, very little has been settled. The plaintiffs’ bar and the defense bar have been battling over virtually every issue, striving to fill in the gaps created by Tincher, while the lower courts have disagreed on just how much Tincher changed. One prominent post-Tincher struggle has arisen over the Suggested Standard Jury Instructions (SSJI). The Pennsylvania Bar Institute published a set of Suggested Standard Jury Instructions that were largely inconsistent with Tincher—as a notable example, the Suggested Standard Jury Instructions retained the “any element” definition of product defect that the Supreme Court had expressly criticized and overruled. Essentially, Suggested Standard Jury Instructions treat Tincher as though it changed nothing.

The defense bar objected that it did not have adequate representation on the committee that prepared the Suggested Standard Jury Instructions and attempted to work with the Pennsylvania Bar Institute to correct these deviations from Tincher. When those efforts were unsuccessful, the Pennsylvania Defense Institute responded by issuing their own set of standard instructions, which we believe are closer to the letter and spirit of Tincher. We were proud to be part of a small group of defense counsel that prepared the Pennsylvania Defense Institute’s version, and we were deeply involved in drafting these alternative instructions.

The battle over these jury instructions is a high-stakes one. Many judges will accept the Pennsylvania Bar Institute’s suggested standard instructions, even though they have not been endorsed or approved by the Supreme Court. The issuance of slanted instructions by the PBI was a blow to the defense bar. Nevertheless, we are heartened by two recent successes in the arena of the proper post-Tincher jury instructions.

In a matter close to home, our office recently tried a wrongful death case involving product liability claims in the Philadelphia Court of Common Pleas. As expected, the plaintiffs’ attorney pressed hard for the PBI’s suggested instructions, emphasizing that they were “standard” instructions approved by a “Supreme Court subcommittee.” Our office responded that the subcommittee’s instructions were never reviewed or approved by the Supreme Court and, in any event, the PDI instructions were more consistent with Tincher. The court agreed, finding that PDI’s instructions were a more accurate statement of the law. We are hopeful that drawing attention to the controversy over the PBI’s suggested instructions, and publicizing the PDI’s fairer alternatives, will lead to more positive results like this one.

In a somewhat weightier development, the Superior Court recently issued a precedential opinion on the remand of the Tincher case. In addition to redefining product liability law, the Supreme Court’s 2014 decision (“Tincher I”) sent the case back to the trial court to determine the proper relief for the defendant in light of the sweeping rulings in Tincher I. On remand, the trial court determined that the defendant was entitled to no relief, finding that the original pre-Tincher I jury instructions were appropriate. (Several other lower court decisions have likewise found no error in clinging to Azzarello-era principles).

In a welcome opinion in Tincher II (Tincher v. Omega Flex, 2018 Pa.Super. LEXIS 117 (Pa.Super. Feb. 16, 2018), the Superior Court confirmed what should have been apparent: Tincher I disapproved of the Azzarello-era instructions, which are now an incorrect statement of the law. To instruct the jury, as in Azzarello, that a product is defective if it lacks “any element necessary to make it safe for its intended use” is fundamental error and warrants a new trial. Also important, the Superior Court characterized the Supreme Court’s opinion in Tincher I as a “new legal reformulation” supported by a “thorough and extensive decision.” To treat Tincher I as though it changed nothing, as the trial court did and the plaintiffs’ bar continues to do, “undervalues the importance” of this landmark decision.

Thus, the Superior Court has rejected attempts by plaintiffs to hold onto elements of law fathered by Azzarello. We now have much stronger support for the position that pre-Tincher I, Azzarello-era instructions are inappropriate—in fact, “fundamental error.” The Tincher II decision thus provides additional ammunition with which to push back against the PBI’s suggested instructions. The “any element” instruction has been held to be an incorrect statement of the law, and the remaining instructions should be viewed with skepticism as well.

The battle over the meaning of Tincher rages on. Although we now have a clearer picture of what post-Tincher I jury instructions should not look like, we still have precious little guidance from the courts on what language is appropriate. We believe the PDI’s suggested instructions offer a fair and reasonable take on the matter, and we recommend them for your next product liability case.

*Keith is a shareholder in our Philadelphia, Pennsylvania office who can be reached at 215.575.2640 or Mike is an associate in our Philadelphia office who can be reached at 215.575.4552 or



Defense Digest, Vol. 24, No. 2, June 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact


Affiliated Attorney

Keith D. Heinold
Chair, Product Liability Practice Group
(215) 575-2640
Michael A. Salvati
(215) 575-4552


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