In November 2014, the Pennsylvania Supreme Court issued its landmark opinion in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). Among other things, the court held that a plaintiff can satisfy the “defective condition” element of her products liability action by proving that the product in question was “dangerous beyond the reasonable consumer’s contemplations.” Thus, the court affirmed that the reasonable use test is alive and well in the state of Pennsylvania. However, despite its thorough analysis of Pennsylvania cases that addressed the intended use doctrine, the court declined to clarify the implications that Tincher would have on that doctrine. In fact, the court explicitly acknowledged that questions would linger regarding the proper application of the intended use doctrine.
‘Nelson’ and the Intended Use Doctrine
One month later, the Pennsylvania Superior Court published its decision in Nelson v. Airco Welders Supply, 2014 PA Super 286. In Nelson, the plaintiff brought a strict liability action against Crane Co., among other defendants. The plaintiff averred that her husband—a former welder at a steel plant—contracted mesothelioma after he modified Crane’s asbestos-laden sheet gasket to augment his welding shield. In response, Crane elicited testimony to suggest that it produced the gasket with the intention that consumers would use it as a sealant for pipes and other fluid systems. On the basis of that testimony, Crane argued that the plaintiff was not entitled to damages because her husband used the gasket in an unintended manner. The trial court rejected Crane’s argument. On appeal, the Superior Court vacated the trial court’s judgment, remanded the case, and instructed the trial court to permit Crane to introduce evidence regarding the intended use of the asbestos gasket.
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