Ben Seal | The Legal Intelligencer | February 12, 2016
When Tincher v. Omega Flex landed on products liability attorneys’ desks 15 months ago, its 137 pages left them looking for more. The state Supreme Court’s fervently awaited decision raised a series of questions, the most pressing of which was when the other foot might drop.
By leveling the playing field, as the opinion’s author, former Chief Justice Ronald D. Castille, said, and clearing a path for the incremental development of decisional law to fill out the practice area, the court left attorneys uncertain about a variety of practical issues. Those issues—ranging from how a judge should instruct and charge a jury to the admissibility of certain evidence and defenses—have yet to be resolved, attorneys said, and the law won’t stabilize until they are addressed.
Building the necessary body of case law to settle the turbulence attorneys are experiencing will likely take several years, they said. The Supreme Court recently agreed to hear its first post-Tincher case, on whether a jury should decide if a product is “unreasonably dangerous”—just one of the numerous questions attorneys said they want courts to answer.
The fact-specific nature of products liability cases makes the task facing Pennsylvania’s courts particularly daunting, according to Jeremy Mishkin of Montgomery McCracken Walker & Rhoads. It might have taken just one decision to unsettle the practice area, but it will likely take many more to restore order, attorneys said.
“When you’re eating a dinosaur, you can only eat it one bite at a time,” Mishkin said.
Speak with 10 products liability lawyers in Pennsylvania and you’re likely to hear 10 different priorities for the issue the courts most need to resolve.
Among its four specific holdings, Tincher ruled that a plaintiff can pursue one of two theories to prove a product’s defectiveness: the consumer-expectations test (“the danger is unknowable and unacceptable to the average or ordinary consumer”) or the risk-utility test (“a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions”).
Turning theory into practice is a critical next step, said Alan Feldman of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig. He recently filed two cases against a furniture retailer over dressers that allegedly fall over too easily and have injured small children. Without further guidance from the courts, he said, he doesn’t know if those cases should proceed under the consumer-expectations or risk-utility test, or both, let alone what type of expert testimony he should present.
Thomas Finarelli of Lavin O’Neil Cedrone & DiSipio said attorneys don’t yet know whether a jury will be charged with reaching a finding on one of the tests or both. As a result, he doesn’t know how to present his defense.
“We would pick the theory that we think best fits our defense and push for that one,” he said. “But until the trial court makes a decision, you don’t know.”
The issue is one of many on which plaintiffs and defense attorneys are deeply divided. Finarelli said the tests propose separate theories, and a jury can’t be asked to decide one issue by answering two questions.
Plaintiffs attorney Larry Bendesky of Saltz Mongeluzzi Barrett & Bendesky said he has a different view.
“I believe I should be allowed to present evidence on both theories, and if I win one or the other, I win the case,” Bendesky said. “I don’t know whether the Supreme Court is going to agree with me on that.”
The appellate courts will likely be asked to weigh in on burden of proof, according to plaintiffs attorney Larry Coben of Anapol Weiss. Defendants could start pushing the notion that plaintiffs should have to prove a product could have been made with a safer alternative design in order to show causation, he said.
Causation is a “granular” issue, according to Mishkin, a defense attorney, but one that could play a key role in future development of the law. Other states place a higher burden on plaintiffs to prove causation than Pennsylvania does, he said.
In the uncertain post-Tincher landscape, jury instructions are a prime example of just how much is up in the air, Feldman said.
“Defendants and plaintiffs are submitting completely different instructions based upon completely different readings of Tincher,” he said.
Plaintiffs attorney John Gismondi of Gismondi & Associates said Tincher’s length and style contributed directly to the widespread confusion among products liability lawyers on how to move forward.
“If lawyers can’t understand it, how do we expect laypeople to understand it?” Gismondi said. “And if lawyers can’t understand it, how does a judge fashion a fair and accurate instruction to the jury?”
There are ample evidentiary issues judges now need to consider, many of which are “open for reargument,” Coben said.
Should a product’s adherence to industry standards and government regulations factor into a jury’s decision on its defectiveness? Should it matter whether the product is “state-of-the-art”?
Defense attorney James M. Beck of Reed Smith said if plaintiffs have their way on the admissibility of such evidence—convincing judges that it’s not relevant—they’re likely to be “pretty successful in the near term.”
Should it matter whether a plaintiff could be found comparatively at fault for the actions that brought about his or her injury?
Many plaintiffs attorneys hold firmly to the notion that an individual’s negligence in using a product should have no bearing on the defendant’s liability. Until further rulings, though, the availability of comparative fault as a defense is still up in the air.
And what role might experts be allowed to play in all of this?
Defense attorney Jonathan Dryer of Wilson Elser said Tincher has left him wondering whether judges will accept expert testimony on the definition of phrases like “acceptable risk,” “knowable risk” and “reasonable consumer.”
Finding answers to the many open questions facing products liability practitioners won’t be an easy process. As Finarelli noted, the trend away from trial means there are fewer opportunities for judges to make decisions that resolve some of the tension.
Even when a case does present significant legal issues that could climb the appellate ladder and help calm the confusion, the conditions are not always ideal.
In a recent trial before Philadelphia Court of Common Pleas Judge Marlene Lachman, in Kovacevich v. Crown Equipment, the jury instruction touched on a number of the pressing concerns attorneys highlighted.
Lachman employed the risk-utility test and told the jury to consider whether the product at issue—a forklift with an allegedly defective electric jack—complied with government regulations or industry standards. She also told the jury to consider “whether Mr. Kovacevich himself was negligent and whether his own negligence was a factual cause in bringing about his injuries.”
The jury returned…