Since Berrier v. Simplicity Mfg., 563 F.3d 83 (3d Cir. 2009), the Third Circuit has been applying the Third Restatement articulation of a products liability design defect cause of action. (The Third Circuit predicted that when the Pennsylvania Supreme Court next addressed the issue, it would adopt the Third Restatement in lieu of the Second Restatement.) As the Third Restatement is perceived to be more defendant-friendly than the Second Restatement articulation adopted in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1979), a strange situation arose: plaintiffs preferred the 402A world of Pennsylvania state courts and defendants fought to remove cases to the more defendant-friendly federal courts.
In Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court at last addressed the issue. Although the Court declined to adopt the Third Restatement, as predicted by the Third Circuit, the Court did disavow Azzarello as unworkable and sought to establish a more pragmatic and equitable framework for the disposition of product liability claims.
On March 20, 2015, the Middle District of Pennsylvania issued the first federal products liability opinion in the wake of Tincher. In Capece v. Hess Maschinenfabrik GmbH & Co. KG, 3:12-cv-1542 (M.D. Pa. 2015) (a copy of the opinion is attached below for convenience), the Middle District faced a motion for summary judgment that was filed pre-Tincher. After the parties brought the Tincher opinion to the notice of the Court, the Court requested a second round of briefing specifically addressing the change in law.
The Capece Court summarizes the Tincher case as such:
Under the approach set forth in Tincher, a plaintiff may prove that a product is in a defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer (consumer expectation test), or (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweighs the burden or costs of taking precautions (risk-utility test. [Tincher, 104 A.3d at 335.] Under either test, whether a product is in a defective condition is a question of fact to be decided by the jury. Id.
Capece at 6. This is a good, succinct explanation of the broad strokes of Tincher, and the positions taken by the parties and the Court hint at how the Third Circuit – and Pennsylvania state courts, for that matter – are likely to apply Tincher.
Notably, in the post-Tincher briefing, the plaintiff argued “that as a result of Tincher, Defendant bears the burden of persuasion under the risk-utility standard of proof.” Id. at 6, n. 1. The Court roundly rejected this argument: “While the court in Tincher considered ‘whether Pennsylvania should…require shifting the burden of proof to the defendant when the plaintiff proceeds upon a risk-utility theory’, it concluded that the ‘ultimate answer to the question best awaits balancing in an appropriate case.’ 104 A.3d at 408-09. Presently, under Tincher, ‘a plaintiff pursuing…a theory of strict liability in tort must prove that the product is in a defective condition.’ Id. at 335.” Capece at 6-7, n. 1.
The result is somewhat predictable: the Capece Court found that whether or not a reasonable alternative design existed under the risk-utility text was a question of fact and denied summary judgment. It is reasonable to presume that winning a motion for summary judgment as a defendant will be tremendously difficult as a defendant under the Tincher scheme. To the extent that experts disagree about the “feasibility and efficacy” of alternate design proposals, that creates an issue of fact that must be submitted to the jury. Capece at 12. Given the fact-intensive nature of the risk-utility test, summary judgment becomes nearly impossible to fathom after Tincher in the Third Circuit.
A copy of this case is available here: Capece v. Hess Maschinenfabrik GmbH & Co. KG
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Alan S. Miller - Practice Chair
Alan has more than thirty-eight years of experience in complex litigation and counseling, concentrating in the areas of environmental law, insurance coverage and bad faith, and commercial litigation. He chairs the firm’s Environmental and Energy Law practice and the Insurance Coverage and Bad Faith Litigation Practice.
Alan’s environmental law practice has involved counseling, litigation and alternative dispute resolution of matters involving municipal, residual, and hazardous waste permitting and compliance, contribution and cost recovery actions under CERCLA and related state statutes, claims for natural resource damages, contamination from leaking underground storage tanks, air and water pollution regulatory permitting and enforcement actions, oil and gas drilling compliance and transactions, and real estate transactions involving contaminated and recycled industrial sites.