After the Tincher decision was handed down by the Pennsylvania Supreme Court in 2014, the civil instructions subcommittee of the Pennsylvania Supreme Court committee for proposed standard jury instructions drafted suggested standard civil jury instructions for products liability cases which were then published by the Pennsylvania Bar Institute (PBI).

The post-Tincher jury instructions drafted by the subcommittee were quickly criticized by members of the defense bar who felt that the language in the instructions was not entirely consistent with the law laid down in Tincher. In a touch of irony, it may be said that members of the defense bar view these suggested jury instructions on products liability cases as being defective.

With members of both the plaintiffs bar and the defense bar being so vociferous in their opposing positions on these suggested standard civil jury instructions for products liability claims, and given that the language of some portions of these instructions have been called into question by the recent decision of the Superior Court in Tincher, it may be advisable for the civil instructions subcommittee to go back to the drawing board in an effort to come up with a consensus on such instructions for the benefit of both the courts and the litigants.

A revised set of products liability jury instructions would not only quiet the debate but, more importantly, would further the interest of judicial economy by potentially avoiding appeals and, in those cases that are appealed, possibly avoiding the need for appellate courts to overturn verdicts on the basis of improper jury instructions utilized by the trial court.

'Tincher' Altered the Law (Somewhat)

Back in 2014, when the Pennsylvania Supreme Court released its much-anticipated products liability decision in the case of Tincher v. Omega Flex, the central question before the court was whether the strict liability analysis of Section 402A of the Reinstatement (Second) of Torts should be replaced with the analysis contained in the Restatement (Third) of Torts.

In its 128-page majority opinion, the Pennsylvania Supreme Court elected to stay with Section 402A of the Restatement (Second) of Torts but also chose to overrule the prior notable products liability decision of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978) and that court's negligence/strict liability analysis which had been followed by Pennsylvania litigators for 36 years.

The prior Azzarello decision and its progeny were plaintiff-friendly in that those decisions fostered the removal of all negligence concepts from products liability cases in favor of strict liability concepts. The Azzarello decision also held that the trial court, and not the jury, was in charge of evaluating the risk/utility of a defendant's product. Under the law set forth in Azzarello, the trial courts were additionally required to instruct juries that the manufacturer or supplier of a product was a guarantor of the safety of its product.

The Supreme Court in Tincher expressly overruled Azzarello and disapproved of that court's support for a jury instruction that a “manufacturer is a guarantor of its product.” The Tincher court formulated an altered standard of review for Pennsylvania products liability cases that focused on both a “consumer expectation” and a “risk/utility” definition of a defect.

Under the consumer expectation test, a product may be found to be in a defective condition if the danger posed by the product is unknowable and unacceptable to the average or ordinary consumer.

The separate “risk/utility” standard, required the utilization of a balancing test to weigh the risks and utilities of the products, as stated in some cases, a cost/benefit analysis.

Under the risk/utility test, a product may be found to be defective when the probability and seriousness of harm caused by the product outweighs the burden or cost of taking precautions against the risk. The risk/utility analysis takes into account a number of many different factors, commonly known as Wade factors.

A Debate Arises

The stated goal of the civil instructions subcommittee appointed by the Pennsylvania Supreme Court is to draft clear, concise instructions that are understandable to citizen jurors, while ensuring that the proposed instructions reflect the current law and case law.

The current debate between the plaintiffs bar and the defense bar centers on whether the suggested standard civil jury instructions pertaining to products liability cases accurately reflect the law of Tincher. Important portions of these suggested products liability instructions have been challenged by members of the defense bar as being inconsistent with the Supreme Court's analysis and ultimate decision in Tincher.

In an unprecedented move, members of the Pennsylvania Defense Institute even drafted and published its own recommended products liability jury instructions in 2016. Since that time, trial courts have been faced with strong arguments from each side as to the proper content for the jury charge in products cases.

Areas of Contention

Several areas of contention exists between the plaintiffs bar and the defense bar on the proper wording of products liability jury instructions.

While the suggested standard jury charges published by the PBI do not contain language pertaining to whether a product is “unreasonably dangerous,” the jury charge published by the defense bar adds that language. The defense bar also proposes the removal of language from the subcommittee's instructions indicating that a product is dangerous if it lacks any element necessary to make it safe for its intended use as such language is only supported by the Azzarello decision which, as noted, was overruled.

Perhaps the sharpest area of dispute is the contention that the PBI's suggested standard jury instructions maintains other language that is also consistent with the overruled Azzarello decision, namely that the product manufacturer or supplier is a guarantor of the safety of its product. In the jury instructions propounded by the members of the defense bar, the Azzarello “guarantor” language is not included.

Some of these areas of contention can now be addressed in light of the Pennsylvania's Superior Court's most recent February 2018, decision issued in the ongoing saga of the Tincher case.

Latest Pronouncement

In its recent Tincher decision, the Pennsylvania Supreme Court confirmed that the inclusion of language in jury instructions consistent with the law set forth in Azzarello should be avoided as that decision was overruled by the Pennsylvania Supreme Court in its 2014 decision in Tincher.

The Pennsylvania Superior Court in Tincher more specifically determined that a new trial was necessary in that case, in part, because the jury instructions that were provided by the trial gave the jury an outdated definition of “defect” rooted in the overruled Azzarello case. The Superior Court noted that the trial court, relying upon the law of Azzarello, had instructed the trial court that a product is defective if it “lacks any element needed to make it safe for its intended use.”

The Superior Court ruled in Tincher that “if an incorrect definition of 'defect' under Azzarello calls for a new trial, an incorrect definition of 'defect' under Tincher should call for the same result.” Given that the trial court gave a charge under the law that the Pennsylvania Supreme Court explicitly overruled, the Superior Court in Tincher found this to be a fundamental error on the part of the trial court and, as such, the case was remanded for a new trial.

The decision by the Superior Court and its reiteration of the Pennsylvania Supreme Court's notion that the Azzarello language has been disapproved supports the notion that, at a minimum, the Azzarello-type language contained in the PBI published suggested standard jury instructions is improper and should be revised to mirror the law of Tincher.

Action Needed to Quiet the Debate

The hope remains that members of the defense bar and the plaintiffs bar can work together with the civil instructions subcommittee to come to an agreement on the proposed language such that, one day in the not too distant future, there will be a set of products liability suggested standard civil jury instructions that litigants can rely upon in anticipation of trial and that trial court judges can simply read to the jury just like any other accepted instructions published by the PBI.

With a debate as loud as the one currently going on between the plaintiffs bar and the defense bar, the suggested standard civil jury instructions should be revisited, particularly since certain language contained in these instructions has been called into serious question by the reasoning in the most recent decision in the Tincher case issued by the Pennsylvania Superior Court.

Unfortunately, it may be a while before any revisions may take place. It is likely that there will be a continuing debate between the plaintiffs bar and the defense bar over whether such changes are even necessary. If a decision is eventually reached that revisions to the suggested jury instructions should be made to quiet the debate and conform the instructions more closely with the law of Tincher and its progeny, it will then likely take another extended period of time before the subcommittee can secure a consensus before a revised set of instructions are issued and published.

And so, in the meantime, given the sharp differences between plaintiffs attorneys and defense attorneys on the proper language to be utilized to charge a jury in a products case, along with the fact that a valid argument exists that that at least portions of the current PBI instructions are not entirely consistent with post-Tincher law, trial court judges should be leery of simply reading to the jury the suggested standard civil jury instructions on this topic as they are currently worded.

In an effort to avoid appellate issues, or worse, remands of products liability cases for expensive, docket-clogging new trials, trial court judges might instead order the opposing parties to work out their differences prior to trial and to stipulate to agreed-upon language for the charge of the jury.

Where, as is likely, the parties are not able to come to an agreement on the proposed language for the charge to the jury, trial court judges should alter the current PBI jury instructions with amendments to render them consistent the applicable law as may continue to be developed by the appellate courts in post-Tincher cases.

The current contested PBI instructions are, after all, only suggested jury instructions that are not binding upon trial courts of Pennsylvania.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters. His Tort Talk Blog can be viewed at www.TortTalk.com.