• Pennsylvania Superior Court Issues Opinion in Tincher v. Omega Flex, Inc. Clarifying How Juries Should be Charged in Product Liability Cases
  • March 2, 2018
  • In an opinion filed February 16, 2018, the Superior Court of Pennsylvania vacated judgement in favor of the Tincher plaintiffs and remanded the case for a new trial. The central issue in the decision was the trial court’s failure to properly instruct the jury on the definition of “defect” in a product liability — design defect — case.

    How did we get back to Tincher again?

    Some readers may be wondering why we are talking about Tincher again since the Pennsylvania Supreme Court issued its landmark decision in the matter back in 2014. The following is a relatively quick synopsis of the procedural history:

    • The Supreme Court remanded the case to the trial court to decide whether further action was needed on post-trial motions.
    • The defendant, Omega Flex, Inc. asked the trial court for a new trial and on March 22, 2016 the trial court denied Omega Flex’s request.
    • Omega Flex had sought a new trial because the trial court had instructed the jury with Azzarello instructions regarding the definition of “defect.” The trial court essentially reasoned that the jury would have reached the same result regardless of the instructions.
    • Omega Flex appealed the trial court’s ruling, resulting in this new opinion from the Superior Court.

    The “defect” definition at issue

    At the trial court level, the judge initially charged the jury, including about what constituted a defect and the jury then asked the court twice (on separate days) to define “defective.” The trial court’s response was as follows:

    The manufacturer of a product is a guarantor of its safety in the strict liability sense, all right, the product must be provided with every element necessary to make it safe for its intended use. And without any condition that makes it unsafe for its intended use.

    If you find that the product at the time it left the defendants’ control lacked any element necessary to make it safe for its intended use, or contained any condition that made it unsafe for its intend use, then the product was defective and the defendant is liable for harm caused by the defect.

    The above language comes, in part from Azzarello, which required a product have “every element necessary to make it safe for use.” The Supreme Court’s decision in Tincher explicitly overruled Azzarello. That lead the Superior Court to determine that “that there is no question that the trial court’s jury charge was incorrect.” The Superior Court explained that it is erroneous to include “a definition equating a defective product with one that leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and declares a manufacturer is the guarantor of the product’s safety. The Superior Court explained that the erroneous jury instruction required a new trial as it dealt with the principal issue disputed by the parties — whether there was a defect.

    Moving forward

    Product liability defendants and their attorneys need to be prepared to challenge the current construct of the Pennsylvania Suggested Standard Civil Jury Instructions. Pa SSJI (Civ) Sec. 16.10 which was considered and published after the Supreme Court’s decision in Tincher reads, in part, as follows:

    A product is defective and the defendant is liable for all harm caused by the product if you find that:

    1. at the time the product left [name of defendant]‘s control, it lacked any element necessary to make it safe for [its intended] use [or use in an unintended but reasonably foreseeable way], or contained any condition that made it unsafe for [its intended] use [or use in an unintended but reasonably foreseeable way]; and
    2. the product reached the user or consumer without substantial change in the condition in which it is sold.
    The Superior Court’s opinion should provide trial court judges with clarity that jury instructions should not include language suggesting a product is defective if it lacked any element necessary to make it safe for its intended use. Product liability defendants and their counsel can utilize the Superior Court’s opinion when crafting and submitting their proposed jury instructions.