Pennsylvania Superior Court Addresses Post-Tincher Issues

In its recent post-Tincher decision in the case of High v. Pennsy Supply, Inc., No. 411 MDA 2016 (Pa. Super. Jan. 13, 2017 Ford Elliot, P.J.E., Shogan, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court addressed the Plaintiff’s claims that the trial court erred in refusing to allow a jury to decide as fact-finder whether wet concrete is a defective condition unreasonably dangerous to the consumer pursuant to the standard set forth in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014).   The High court reversed the trial court’s decision and remanded for further proceedings.  

As noted by Attorney James M. Beck, a member of the Philadelphia office of Reed Smith law firm and a writer of the excellent drug and device law blog, the court in this matter confirmed that Tincher “significantly altered the common law frame work for strict products liability claims in Pennsylvania.”  

Attorney Beck also noted that this court quoted Tincher’s description of the Azzarello standard as “confusing and impracticable, and in compatible with the basic principles of strict liability.”  

It was also noted that this decision confirmed that a jury should be the decider of the question of whether an alleged defect of a product is “unreasonably dangerous.”  In this regard, the Pennsylvania Superior Court in High stated that “whether a product is in a defective condition unreasonably dangerous to the consumer is a question of fact that should generally be reserved for the fact-finder.”  

Attorney Beck also noted that the High court’s decision is notable in its statement that the product risks in question is “unknowable” to the objective “average or ordinary consumer” is an essential element of the consumer expectation approach.   This, according to Beck, arguably supports not only the relevance of the state of art at issue, but also that it is a Plaintiff’s burden to prove these elements under the consumer expectation test.  

Attorney Beck also noted that this opinion supports the admissibility of industry standards and products liability cases in post-Tincher matters.   The High court stated in its Opinion that a product’s “compli[ance] with industrial ASTM standards” is an appropriate subject of expert testimony in a products case.  

I send thanks to Attorney James M. Beck for bringing this case to my attention along with his analysis of the same.   Please be sure to check out his excellent DRUG AND DEVICE LAW BLOG.


The Majority Opinion of the Superior Court in High can be viewed online HERE.

Judge Shogan's Concurring and Dissenting Opinion can be viewed HERE.


To review the Tort Talk post on the trial court's decision in High and to access the trial court's opinion by a Link, click HERE.