In 2014, the Pennsylvania Supreme Court issued its much-anticipated opinion in Tincher v. Omega Flex, Inc., 628 Pa. 296, 104 A.3d 328 (2014). That case was a product liability action based on a design defect. The defense bar had hoped the Supreme Court would use the Tincher case to adopt the Restatement (Third) of Torts Product Liability §§ 1-8 so that principles of due care and “state of the art,” evidence of which had been rigidly excluded from the section 402A analysis, would be admissible. The Supreme Court did not take the bait, however, and reaffirmed Pennsylvania’s adherence to the Restatement (Second) of Torts § 402A, which is the law of Pennsylvania regarding product liability today. 

The strict liability of section 402A provides that one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability. The rule applies even if the seller has exercised all possible care in the preparation and sale of his product. What Tincher did was to give the issue of whether a product is unreasonably dangerous to the jury for consideration. (Previously, the trial court made that determination while the jury determined if the product caused injury.)  The court further enunciated two alternative standards for whether a product is unreasonably dangerous: the consumer expectation standard and the risk-utility analysis. 

One issue that Tincher did not address was the scope of evidence admissible to prove or disprove the consumer expectation and risk-utility analysis of whether a product is unreasonably dangerous. The Court sought to address whether a manufacturer’s compliance with government or industry standards is relevant to the risk-utility analysis. In Sullivan v. Werner Co., 306 A.3d 846 (Pa. 2023), the plaintiff sued for injuries he sustained when the platform of a six-foot tall mobile scaffold collapsed beneath him causing him to fall through to the ground. The plaintiff alleged that the scaffolding was defectively designed. The manufacturer sought to introduce evidence that its product complied with ANSI and OSHA standards relating to scaffolding. The trial court excluded such evidence finding that because section 402A continues, post-Tincher, to be a strict liability cause of action without regard to fault or due care, such evidence was irrelevant and inadmissible. Three justices of the Supreme Court in the opinion announcing the judgment of the Court (OAJC) agreed, finding that in a design defect case the proper focus is on the characteristics of the product and not the conduct of the manufacturer. Id. at 859. Thus, the OAJC reaffirmed that evidence of due care and conduct of the manufacturer have no place in the law of strict product liability under section 402A. 

The OAJC, however, may not be binding on future litigants on the issue because the opinion is a plurality decision. Six justices of the Supreme Court participated in the consideration of the case while one seat was vacant. Only three justices joined the OAJC. Two justices dissented and wrote that the evidence should be admissible as evidence relevant to the risk-utility analysis. They also believed that because the plaintiff in a design defect case may present evidence that a product was non-compliant with industry standards, fairness dictated that defendants be allowed to show their compliance with such standards. Id at 871. 

The OAJC may not be precedential because one justice, Justice Donohue, concurred in the result but left the door open to an argument for the admissibility of evidence of compliance with industry or government standards if the manufacturer proffers a defense that the standards set forth a design that is not unreasonably dangerous, and is relevant to one of the several factors that a jury must consider when weighing the risk-utility of the product. Id. at 864. Justice Donohue found that the manufacturer in Sullivan had not set forth an adequate foundation for the admissibility of compliance with the OSHA and ANSI standards (i.e., what the standards are, their purpose or how they were developed). Id. at 865. Justice Donohue otherwise agreed with the OAJC that (1) Pennsylvania continues to follow section 402A for strict liability claims; (2) strict liability is divorced from the consideration of fault on the part of the manufacturer; and (3) evidence that a defendant confirmed its conduct to the conduct of others in its industry in designing the product is irrelevant to whether the product is unreasonably dangerous due to a design defect. Id. at 864. Because a majority of the Court did not agree on the holding of the case, and there now exists on the Supreme Court seven justices, an issue concerning the admissibility of compliance with government or industry standards may come before the Court again. Manufacturers of products should consider such evidence in the context of the Justice Donohue’s concurring opinion.