As all products liability practitioners are aware by now, at the end of 2014, a watershed moment in Pennsylvania products liability law occurred when the Pennsylvania Supreme Court decided Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). Tincher expressly overruled Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978), the linchpin of the prior law, and by implication called into question most of the last 30 years of Pennsylvania products liability precedent. Much ink has been spilled over Tincher and strict liability generally, but much less focus has been given to Tincher‘s possible impact on products liability litigation involving prescription drugs and medical devices.
Tincher has not been much discussed in the context of prescription medical products because, long before Azzarello, the Pennsylvania Supreme Court had refused to extend strict liability to defendants that make or supply these products. Azzarello was decided in 1977. By then, the court had so ruled three times. In Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971), the court quoted extensively from Restatement (Second) of Torts Section 402A, Comment K (1965), and concluded, based on both the Restatement and prior precedent, that strict liability was inapplicable: “Since the strict liability rule of Section 402A is not applicable, the standard of care required is that set forth in Section 388 of the Restatement dealing with the liability of a supplier of a chattel known to be dangerous for its intended use. Under this section, the supplier has a duty to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous.”
