The long awaited decision of the Pennsylvania Supreme Court in Tincher v. OmegaFlex, Inc., 104 A.3d 328 (Pa. 2014) finally clarified the law of Pennsylvania with respect to product liability. Pennsylvania had previously been a jurisdiction which adhered to the Restatement of Torts Second but in the interim, the American Law Institute had come forward with the Third Restatement of Torts. Controversy had ensued in Pennsylvania, particularly because many of the federal courts in Pennsylvania had predicted that the Pennsylvania Supreme Court would adopt the Third Restatement. Tincher served to clarify that indeed the Second Restatement would still be the law in Pennsylvania. However, in so doing, it reversed the 1978 opinion of Azzarello v. Black Bros. Co., 390 A.2d 1020 (Pa. 1978).
The reason why this is important is because the facts and the holding of Tincher were limited to a case involving a design defect. Under Azzarello, the adequacy of the warning was a question of law for the court and only after the court ruled upon that threshold question would a warning’s adequacy be submitted to a jury. The Azzarello court dealt with this issue with respect to design defect and it was extended in Mackowick v. Westinghouse Electric Corp., 575 A.2d 100 (Pa. 1990) to failure to warn cases.
In overruling Azzarello, Tincher held that the threshold determination of defective design was an issue for the factfinder; the trial court judge, if it is a bench trial; or the jury if it is a jury trial and changed the previous Pennsylvania law which held that it was a question of law for the judge to determine before sending it to the jury. However, because Tincher dealt only with a design defect case, the question still remains open as to whether or not that same Tincher analysis would apply in a failure to warn situation.
That question was answered, at least by one trial court judge, in the case of Hatcher v. SCM Group North America, Inc., (U.S.D.C., E.D. Pa., C.A. No. 15-630, March 1, 2016). Judge Schiller held in this failure to warn case that because Tincher did not address a failure to warn defect, but only dealt with the design defect situation, Mackowick still applied, and the threshold determination of the adequacy of the warning remained a question of law for the court.
This is one of the first reported post-Tincher opinions dealing with one of the unanswered questions in Tincher.
Of course, this is simply one trial court’s interpretation of post-Tincher law and it is anticipated that this is yet another issue which will have to be resolved by the appellate courts.
