Special Law Alert: Tincher II – The Pennsylvania Superior Court Orders a New Trial and Reaffirms that the Supreme Court in Tincher I Made Sweeping Changes to Pennsylvania Products Liability Law

In its landmark 2014 decision in Tincher v. Omega Flex, Inc., 104 A.3d 328, 335–36 (Pa. 2014)(Tincher I), the Pennsylvania Supreme Court reshaped Pennsylvania product liability law. Among the most sweeping of Tincher I’s proclamations was that prior case law, most prominently Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), wrongly required trial judges to determine whether a product is “unreasonably dangerous,” wrongly defined “defective product” as a product “lacking any element necessary to make it safe for its intended use,” and wrongly told juries that manufacturers are “guarantors” of their products’ safety.

Since Tincher I, many in the plaintiffs’ bar and some lower courts have suggested that the Supreme Court’s pronouncements were not that sweeping after all. These lawyers and courts have taken the position that Tincher I made mainly procedural adjustments to prior law but left the central pro-liability Azzarello regime largely intact. Such narrow interpretations of Tincher I were also accepted by those who drafted Pennsylvania’s Suggested Standard Civil Jury Instructions, which simply revived large portions of Azzarello in the wake of Tincher I. While these “standard” charges are not authoritative statements of the law that have been approved by the Supreme Court, they tend to be persuasive to trial judges, which has generated significant confusion in lower courts about the breadth of Tincher I.

These narrow interpretations of Tincher I have now been squarely rejected in a follow-up opinion by the Pennsylvania Superior Court dated February 16, 2018. See Tincher v. Omega Flex, Inc., 2018 PA Super 33 (Pa.Super., February 16, 2018)(Tincher II)(attached).

Tincher II was occasioned by the Supreme Court’s remand in Tincher I, which directed the trial court to determine whether its initial jury charge complied with the standards set forth in Tincher I. Viewing Tincher I narrowly, the trial court refused to award a new trial on the basis that its initial charge complied with the Supreme Court’s explanation of the law. The defendant appealed the trial court’s refusal to award a new trial.

The Superior Court agreed with the defendant and awarded a new trial. In its unanimous, 30-page opinion, the Superior Court confirmed what many on the defense side have viewed as apparent, namely, that Tincher I completely rejected the Azzarello “any element” and “guarantor” standards. Because the trial court’s jury charge incorporated those standards, it violated Tincher I and amounted to “fundamental error” that requires a new trial. (P. 23). In a sharp rebuke of narrow interpretations of Tincher I, the Superior Court stated: “The trial court’s declaration that the new legal reformulation resulting from the Supreme Court’s thorough and extensive decision … can cause no change to the verdict undervalues the importance of the Supreme Court’s decision.” (P. 27).

Hopefully, Tincher II settles the ongoing dispute about the scope of Tincher I. It should also compel a thorough overhaul of Pennsylvania’s “standard” product liability jury charges because those charges are based on a view of Tincher I that the Superior Court has now flatly rejected.


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