Monday, February 19, 2018

Tincher Decision Revisited by Pennsylvania Superior Court

The courts of Pennsylvania continue attempt to move forward in the post-Tincher world of products liability cases, including in the actual Tincher case.

On remand from the Pennsylvania Supreme Court, the trial judge in the actual Tincher case denied any relief to the defense. 

However, the trial court’s denial of the Defendant’s motion for post-trial relief has been reversed by the Pennsylvania Superior Court in its February 16, 2018 decision in Tincher v. Omega Flex, Inc., No. 1285 EDA 2016, 2018 Pa. Super. 33 (Pa. Super. Feb. 16, 2018 Lazarus, J., Platt, J., Strassburger, J.)(Op. by Lazarus, J.).   The Pennsylvania Superior Court particularly found fault with the trial court’s jury instructions with respect to standards for finding a "defect" and a new trial was ordered in light of the extensive changes that the Tincher Supreme Court decision made to Pennsylvania product liability law.

Notably, the Superior Court noted that the trial court’s jury instructions which relied, in part, on the law of the prior case of Azzarello v. Black Brothers, Inc., 391 A.2d 1020 (Pa. 1978), were “incorrect.”  Op. at p. 18.

The Superior Court in this Tincher opinion noted that “[t]he charge thus contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and a declaration that a manufacturer “is really a guarantor of [a product’s] safety” but not “an insurer of [that] safety.”  Op. at p. 18.

The Superior Court, in no uncertain terms, emphasized that “[t]he Supreme Court has now overruled Azzarello and determined that this statement of product liability law was incorrect. The trial court’s jury charge, therefore, was erroneous.”  Op at p. 18.

The Tincher Superior Court went on to state, “Here, the trial court gave a charge on a determinative issue that failed to conform to the applicable law, as stated in Tincher.  We conclude, therefore, that the charge amounted to fundamental error.”  Op. at p. 20.

The court also noted, “[T]he trial court gave a charge under law that the Supreme Court has explicitly overruled in this very case. Such a charge would appear to be a paradigm example of fundamental error.”  Op. at p. 23.  The appellate court emphasized that the provision of an incorrect definition of a "defect" in conflict with the standards on the same set forth in Tincher required the granting of a new trial.

In the end, the Superior Court found that “[t]he trial court had no authority to deny a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.”  Op. at p. 27.  It further noted that “[t]he 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.”  Op at p. 27.

The appellate court ultimately found that given that the jury instructions were incorrect under the new Tincher analysis, a new trial was required to be ordered.

The Superior Court otherwise confirmed that under the new Tincher analysis enunciated by the Pennsylvania Supreme Court, “only the fact-finder – in this case, the jury – may determine whether a product is defective.”  Op. at p. 28.

Anyone wishing to review the Pennsylvania Superior Court’s decision in Tincher may click this LINK.

Commentary:  In this new decision, the Superior Court makes clear that the Azzarello analysis and, therefore, any jury charge based upon that case, has been expressly “disapproved” by the Pennsylvania Supreme Court.  Accordingly, it appears that the Pennsylvania Standard Suggested Jury Instruction issued after the Supreme Court’s decision in Tincher purporting to restore the Azzarello formulation may be inconsistent with the new standards set down in Tincher.
Tort Talkers may recall that a committee of attorneys affiliated with the Pennsylvania Defense Institute formulated  alternative post-Tincher standard jury instructions that are represented to be consistent with the new analysis adopted by the Pennsylvania Supreme Court in Tincher.  A Link to these proposed jury instructions can be found HERE. 

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this decision to my attention.

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