Stephen McConnell, left, and James M Beck, right, of Reed Smith. Courtesy photos

Pennsylvania's Exclusion of Compliance Evidence

Any products liability defendant will attest to the importance of compliance with regulatory standards. Lack of such compliance would be a vulnerability, perhaps even resulting in negligence per se. Proof of such compliance, by contrast, might support a complete defense of preemption. See, e.g., Riegel v. Medtronic, 552 U.S. 312 (2008). Even absent preemption, evidence of compliance can provide comfort to a jury that the product is reasonably safe. But in Sullivan v. Werner, 306 A.3d 846 (Pa. 2023),

The underlying theory was that such evidence goes to due care and is relevant only to negligence, not strict liability.

The Sullivan opinion turned on Pennsylvania's separation of negligence principles from strict liability. The plaintiff in Sullivan had filed a motion in limine to exclude evidence of regulatory compliance, relying on Lewis v. Coffing Hoist Division, 528 A.2d 590 (Pa. 1987), which excluded such evidence in strict liability cases. But the defendant argued that the Supreme Court's later ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), undermined Lewis by rejecting an absolute separation between strict liability and negligence concepts.