For those who practice in the field of strict product liability, the name “Tincher” has become more synonymous with a seemingly endless string of decisions and appeals than anything else. The only saga with more sequels in the past few years is the “Star Wars” franchise.
The Tincher tale added yet another chapter last week in the form of the Pennsylvania Superior Court’s granting of a new trial in the matter. While this ruling did not provide any additional substantive legal precedent, it did solidify the significance of strict adherence to jury instructions, as well as the vital importance of delineating between the court’s “gatekeeper” role and the jury’s “fact-finding” role. The seminal 2014 decision of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) was meant to provide lucidity to the convoluted product liability landscape in Pennsylvania. However, for the last several years, practitioners on both sides of the caption have engaged in efforts to clarify the ruling’s impact.
In Tincher, Plaintiffs’ home suffered significant fire damage when a lightning strike caused a small puncture in steel tubing – manufactured by Defendant – which was providing natural gas to their fireplace. The trial court provided the jury with instructions based on both the Restatement (Second) of Torts and Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), which, at the time, represented the leading, precedential case on products liability law in the Commonwealth. The jury, whose deliberation notably included repeated requests of the Court for the definition of “defective,” returned a verdict in favor of Plaintiffs, which, after delay damages, amounted to over $1 million.
Procedurally, Tincher then took a somewhat unique path. After the Pennsylvania Superior Court affirmed the trial court’s judgment, the Pennsylvania Supreme Court reversed. In doing so, the Court overruled Azzarello, declined to adopt the Restatement (Third) of Torts, and created new tests (the “risk/utility test” and the “consumer expectation test”) under which a product’s potential defect(s) are to be analyzed. Additionally, the Court also explicitly rejected the Azzarello jury instruction as “impracticable,” and “restored the question of a product’s defectiveness, including any balancing of risks and utilities, to the jury” in the form of an amended jury charge. After the trial court denied Defendant’s request for post-trial relief on remand, Defendant appealed to the Superior Court, which granted a new trial just a few days ago.
In doing so, the Superior Court undertook the Harman ex rel. Harman v. Borah, 756 A.2d 1116 (Pa. 2000) two-stage standard of review regarding a request for a new trial. First, the Superior Court found that the trial court’s jury charge was patently incorrect, as it was based on the now-overruled Azzarello case. Second, the Court held that this erroneous charge “amounted to fundamental error,” as the potentially defective nature of the steel tubing was the “predominant factual issue” in the matter. Furthermore, the jury deliberations clearly hinged on the application of the term “defect,” as its definition was asked for on numerous occasions. Finally, the Court concluded that “fundamental error analysis is particularly applicable here because the trial court gave a charge under law that the Supreme Court has explicitly overruled in this very case.”
While this chapter in the Tincher saga does not offer any new substantive legal standards or doctrines, it does reiterate the importance of jury instructions, as well as the distinction between the respective roles of the court and the jury in fact-finding, in the post-Tincherlandscape. In granting Defendant a new trial, the Superior Court first found that the trial court’s jury charge, based on Azzarello, incorrectly included a definition of a defective product as one which “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use.” This charge was explicitly rejected by the Supreme Court, and replaced with the “consumer expectation” and “risk/utility” tests. This new Tincher ruling suggests that any deviation from these new tests provides grounds for a finding of reversible error.
Second, and perhaps most relevant for products liability practitioners, the Superior Court forcefully rejected the trial court’s finding, that, despite an admitted and accepted misstatement of the law in its original jury charge, the “jury would render the same verdict under whichever charge it was given.” This logic altered the court’s “ordinary gate-keeper role” with that of the fact-finding (specifically, a product’s defectiveness) which is intended to be undertaken by the jury.