Pennsylvania Products Liability Law and Litigation

The term “product liability” generally refers to the liability of a manufacturer, processor, or non-manufacturing seller for injury to the person of property of a buyer or third party caused by a product which has been sold. Generally speaking, there are three different types of product liability claims; manufacturing defects, design defects, and failure to warn claims. In Pennsylvania, a plaintiff can bring a cause of action against the manufacturer, seller, or distributor of a product under strict liability, negligence, and breach of warranty claims. The attorneys at Houston Harbaugh have significant experience defending manufacturers, sellers, and distributors of a variety of products from the time of the initial claim through trial in state and federal courts.

The landscape of products liability law in Pennsylvania is uncertain. We had a long time split of authority with regard to whether the Restatement Second of Torts of the Restatement Third of Torts should be applied substantively in Pennsylvania products liability cases. This rift existed for quite some time, and the split was between between the state and federal courts, and in some respects between the several federal courts and judges. Over the last several years, the United States Federal Courts for the Eastern, Middle, and Western District have issued opinions which favor alternatively both the Restatement Second and the Restatement Third in products liability cases. The Pennsylvania Supreme Court, however, has held, so far, that the Restatement Second is to be applied in all strict products liability cases in Pennsylvania. They have rejected the Restatement Third and in the now well-known “Tincher” case, the court has essentially rewritten some aspects of strict liability law, and declared the Restatement Second to still be the law.

In this climate of uncertainty, our attorneys have been trial counsel for product manufacturers, suppliers, and distributors, and have frequently acted as local counsel to not only guide clients through the procedural complexities of Pennsylvania practice, but to also advise and guide clients through the unpredictable substantive areas of the law which have either changed, are changing, or are up for interpretation.

The principals of the firm have experience in handling significant pharmaceutical, products liability and tort claims, including matters involving allegations of professional negligence, strict products liability, breach of warranty, failure to warn, drug and device, compounding pharmacy liability and personal injury. From our office in Pittsburgh, Pennsylvania, our lawyers serve clients primarily in Pennsylvania, but also in other jurisdictions on a special admission basis.

Pennsylvania Supreme Court Decides in Tincher Case: “No Restatement (Third) of Torts: Products Liability §§ 1 et seq.”

In Tincher v. Omega Flex, Inc. (no. 17 MAP 2013) – The Supreme Court also overruled the landmark case Azzarello v. Black Brothers Company, 391 A. 2d 1020 (Pa. 1978). Here are the key statements of opinion below. Our firm will provide analysis in an upcoming blog post as this marks a big shift in Pennsylvania Products Liability law. The legal fallout is very uncertain. Held:

1) This Court’s decision in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978) is hereby overruled.

2) Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.

3) Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.

4) To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq., albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm.