- The Difficulty of Consistent Application of Supreme Court Precedent
- February 26, 2015
- Law Firm: Obermayer Rebmann Maxwell Hippel LLP - Philadelphia Office
It's been three months since the Pennsylvania Supreme Court's decision in Tincher v. Omega Flex, 104 A.3d 328, 2014 Pa. LEXIS 3031 (Pa. 2014), and although the number of articles covering the ruling are legion, the legal community has yet to feel the decision's full impact. Application of appellate precedent such as Tincher is the focus of this article.
Certainly the Tincher decision, at an astounding 137 pages in its original published form, was meant to stand out - perhaps, as some have suggested, as former Chief Justice Ronald D. Castille's "legacy" opinion as he exited the court. No doubt its in-depth discussion of the history of products liability jurisprudence in Pennsylvania is an important read for anyone practicing in the products liability arena. However, so much of the opinion is arguably dicta that it is unclear what legacy, if any, Tincher will have.
Many other commentators have weighed in on Tincher and its scope, and I have no desire to duplicate their efforts with an extended discussion. Instead, I intend to focus on the practical next steps from an appellate perspective. At its core, Tincher's holding only covers a few discrete areas, summarized broadly below:
First and foremost, Tincher overruled Azzarello v. Black Brothers, 480 Pa. 547, 391 A.2d 1020 (1978), which governed products liability cases in the past, including disapproving of misleading or inaccurate jury instructions based on Azzarello (including removing the "unreasonably dangerous"/defectiveness decision from the jury, the use of such phrases as "lacking every element necessary to make [the product] safe" or "without any condition that makes it unsafe," or labeling a manufacturer as a "guarantor" without any context for that language).
Second, Tincher held that plaintiffs are permitted to argue defectiveness based on either the "risk-utility" or "consumer expectations" tests - previously competing theories of what makes a product defective.
Finally, Tincher resisted the call (and the prediction of the U.S. Court of Appeals for the Third Circuit) to adopt the Restatement (Third) of Torts to replace Azzarello.
Tincher did not expressly overrule any cases other than Azzarello; and
Tincher did not set forth an alternative framework in the place of Azzarello.
Current Chief Justice Thomas G. Saylor recognized the tension resulting from Tincher in his concurring opinion in the context of the consumer-expectations test:
"I am particularly uncomfortable with the integration into Pennsylvania products liability jurisprudence of an alternative, free-standing, skeletal consumer-expectations test, particularly in the absence of essential advocacy to support a decision of this magnitude. Indeed, given the more limited manner in which the present appeal has been framed, I imagine this development will be met with substantial surprise in many quarters, to say the least."
Although Tincher overruled Azzarello, it did so without jettisoning other problematic case law or setting forth clear guidance as to precisely what would replace it. As a result, there will undoubtedly be significant growing pains in the products liability case law going forward.
First Considerations in the Courts
It is admittedly early to expect to see evidence of such growing pains - as of publication, only four "local" cases have mentioned or discussed Tincher, two in the Pennsylvania state courts.
Although Parr v. Ford Motor, No. 2793 EDA 2012, 2014 Pa. Super. 281, 2014 Pa. Super. LEXIS 4570 (Dec. 22, 2014), is notable for the Superior Court's discussion of the crashworthiness doctrine (which is itself a departure from traditional Second Restatement principles), in fact the decision only mentions Tincher in passing to confirm that Pennsylvania has not adopted the Third Restatement.
Judge Thomas Hardiman's dissent in Delaware & Hudson Railway v. Knoedler Manufacturers, No. 13-3678, 2015 U.S. App. LEXIS 385 (3d Cir., Jan. 9, 2015), also mentions Tincher as part of a discussion of the Third Restatement, noting that Pennsylvania declined to adopt it.
Finally, the U.S. District Court for the Eastern District of Pennsylvania in Williams v. U-Haul International, Civil Action No. 14-6727, 2015 U.S. Dist. LEXIS 4486 (E.D. Pa., Jan. 14, 2015), cited Tincher's adoption of the additional consumer-expectations test as a reason to deny a motion to dismiss.
The only substantive discussion of Tincher so far is Cancelleri v. Ford Motor, No. 2011-CIV-6060 (Jan. 9, 2015), from the Lackawanna County Court of Common Pleas. The matter, a crashworthiness case, resulted in a jury verdict for the plaintiff. As part of its order denying the defendant's post-trial motions, the court noted that Tincher maintained the Second Restatement and gave its approval to the consumer-expectations test. In doing so, however, the court also defended its use of jury instructions that relied on Azzarello - the type explicitly rejected in Tincher. The court held that the propriety of Azzarello instructions will be considered during Tincher's remand for further proceedings, and that any such instructions did not warrant a new trial. In other words, no matter how sincere and forthright its intentions, the Cancelleri court seemed to sidestep the ruling in Tincher rather than address it head on.
Predicting the Future
The future application of Tincher's dicta and holding may be difficult. Although Tincher stated that "to the extent the pronouncements in Azzarello are in tension with the principles articulated in this opinion, the decision in Azzarello is overruled," even with only one decision discussing Tincher substantively so far, it seems likely that the practical application of Tincher may prove difficult. Azzarello was overruled, but the many cases interpreting Azzarello or that were inspired by it still remain unchallenged, and the lower courts will likely struggle with what, exactly, that should mean.
Of course, proper application of precedent is not a new problem for courts. Courts of last resort usually, and properly, limit their decisions to discrete issues, and enunciate rulings that should be universally and broadly applicable. Applying broad holdings to the narrow confines of individual cases is where difficulties arise.
Now that Gov. Tom Wolf appears to have bipartisan consensus to return the court to seven justices, we may be able to see how a full Supreme Court handles the broad versus narrow tension. In Rost v. Ford Motor, 56 EAP 2014, an asbestos products liability matter, the Supreme Court has accepted review of the following related issue: "Whether - contrary to Howard, Betz and Gregg - a plaintiff in an asbestos action may satisfy the burden of establishing substantial-factor causation by an expert's 'cumulative-exposure' theory that the expert concedes is simply an 'any-exposure' theory by a different name."
To summarize for those not steeped in toxic tort litigation, the state Supreme Court has, on the three occasions cited above - Howard v. A.W. Chesterton, 618 Pa. 154, 78 A.3d 605 (2013); Betz v. Pneumo Abex, 615 Pa. 504, 44 A.3d 27 (2012); and Gregg v. V-J Auto Parts, 596 Pa. 274, 943 A.2d 216 (2007) - disfavored the use of "each and every exposure" opinions—those offered by expert witnesses that any exposure to asbestos, regardless of dose, are a "substantial factor" in causing asbestos-related disease, stating that "the any-exposure opinion is simply unsupportable both as a matter of law and science," as in Howard.
Despite the Supreme Court precedent over six years, the lower Pennsylvania courts have issued contradictory and disparate rulings—some courts allowed similar or identical opinions to go to the jury (such as Rost and Hicks v. Dana, 984 A.2d 943 (Pa. Super. Ct. 2009)), and other courts barred opinions that, while semantically different, expressed the same principles (such as the recent en banc decision in Nelson v. Airco Welders Supply, --- A.3d ---, 2014 Pa. Super. 286 (Pa. Super. Ct. Dec. 23, 2014)). Despite three cases on point regarding this issue, confusion by the lower courts continues.
Simply put, if a line of three Supreme Court cases can still leave a trail of confusion in the case law, such that the Supreme Court requires a fourth case to analyze the issues involved yet again, the stage is set for numerous post-Tincher battles regarding its scope and application.
Our Supreme Court has announced a significant sea change in how products liability cases will proceed in the future. The open question, however, is how the lower courts will take this controlling precedent and apply it. If recent experience is our guide, it will be years before we can know the real scope and impact of Tincher, and years before consistent application of its principles.