As noted in Larry Coben’s thoughtful article in the Pennsylvania Law Weekly (“A Comparative Review of Products Liability Jury Instructions,” Jan. 30, 2018), many issues remain to be worked out as a result of the Pennsylvania Supreme Court’s 2014 Tincher v. Omega Flex, opinion, which overruled the venerable Azzarello v. Black Brothers, 480 Pa. 547, 391, A.2d 1020 (1978). The Supreme Court itself noted that its “opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the restatements. … The difficulties that justify our restraint should be readily apparent. The common law regarding these related considerations should develop with the proper factual contexts.”

In the absence of court precedent providing the relevant law, Coben, as a learned commentator, wrote to provide his view regarding proper jury instructions on six different products liability issues. After his article appeared in the Law Weekly, however, the Superior Court issued an opinion, advancing the common law in the way foreseen by the Supreme Court. That opinion is a subsequent opinion in the Tincher case, reversing the trial court’s decision that the pre-Tincher jury instructions it had given were adequate, and no new trial was required, even though the instructions were based on Azzarello. Tincher v. Omega Flex, __ A.3d __, 2018 Pa. Super. 33 (Feb. 16) (Tincher II). The Superior Court opinion is a published opinion on the adequacy of post-Tincher jury instructions, and provides the most authoritative guidance yet available on the topic addressed by Coben.

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