Emerging 'Common Experience' Limitation Under 'Tincher'

In Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court jettisoned Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978), leaving in its wake a “composite” theory of products liability. A plaintiff pursuing a products liability claim in Pennsylvania must now advance a theory premised on either various “risk-utility” factors, such as feasibility of an alternative design, or an ordinary consumer’s expectations of a product’s safety. Consistent with its tone of restraint throughout Tincher, the Supreme Court avoided endorsing a specific set of circumstances under which either theory should (or could) be applied in practice. In the roughly two years since Tincher was decided, however, courts have begun shaping this issue in the context of claims premised on the “consumer expectation” theory. The possibility of a jury’s arbitrary deliberations about a complex product’s safety has led some courts to impose a “common experience” ­limitation to application of the “consumer expectation” theory at trial: Unless it is proven before trial that a product is within a consumer’s common experience, a plaintiff must instead prove her claim using the risk-utility theory. This emerging trend will have consequences for how parties prepare and try a products liability claim in Pennsylvania.

The emerging common experience limitation to application of the consumer expectation theory has roots in the Tincher opinion itself. In that sprawling opinion, the Pennsylvania Supreme Court observed that “a product whose danger is vague or outside the ordinary consumer’s contemplation runs the risk of being subjected to arbitrary application of the strict liability doctrine.” Accordingly, the court urged trial courts to “act in their ordinary gate-keeper role,” including, where appropriate, limiting “the theories of litigation to be pursued at trial.” In support of this reasoning, the Tincher court cited favorably a California Supreme Court case, Soule v. General Motors, 882 P.2d 298 (Cal. 1994), which examined when the consumer expectations theory should be applied.