Just before Christmas, the Pennsylvania Supreme Court delivered a lump of coal to products liability defendants: Sullivan v. Werner Co., 2023 WL 8859656 (Pa. Dec. 22, 2023), affirming a lower court ruling that barred evidence of a product manufacturer’s compliance with government and industry standards in a strict liability design defect case. The lower courts held that such evidence goes to due care and is relevant only to negligence, not strict liability. The affirmance appears to support the exclusion of such evidence in design defect cases based on a risk-utility theory, but leaves uncertainty for the future because only three justices joined the principal opinion; a fourth justice concurred with the result but concluded the record was inadequate to resolve the legal issue, while two others dissented.
Plaintiff sued the maker of a mobile scaffold which collapsed. Defendant served an expert report that relied in part on government (OSHA) and industry (ANSI) standards. Plaintiff filed a motion in limine to exclude evidence of compliance with those standards, relying mainly on Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987), which excluded such evidence in strict liability cases. But Defendant argued the Supreme Court’s later ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), undermined Lewis by overruling Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), a decision that had taken an extremely narrow view of the relevant facts in strict liability claims under section 402A of the Second Restatement of Torts. Tincher held that section 402A remained Pennsylvania law but “overruled Azzarello’s narrow construction . . . that prevented the jury from considering negligence-related rhetoric and concepts . . . .” Nevertheless, the trial court in Sullivan granted the motion in limine and an appellate court affirmed. Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021).
The manufacturer argued that Lewis was no longer viable because (1) Tincher rejected an absolute separation between strict liability and negligence concepts and (2) the Pennsylvania Rules of Evidence favor a liberal approach to admissibility. The manufacturer also pointed out that almost every other state allows such compliance evidence including several whose case law the Pennsylvania Supreme Court relied on in reassessing strict liability in Tincher.
Still, the three justices who signed the opinion announcing the judgment in Sullivan concluded that “evidence of compliance with industry standards is inadmissible under the risk-utility test in strict products liability cases,” thus “reaffirm[ing] the post-Tincher validity of the rule announced in Lewis.” They noted that Tincher did not overrule Lewis or criticize its reasoning and accepted the argument that evidence of compliance with government or industry standards is “not evidence of the underlying attributes of the product,” which dictate whether it is defective. They insisted that “to maintain the distinction between strict liability and negligence, we cannot permit negligence concepts such as fault or due care to creep into strict liability” and concluded that allowing such evidence effectively would adopt principles of the Third Restatement, which the Court rejected in Tincher. And they dismissed without analysis the point that virtually every other state allows such evidence in strict liability cases.
Concurring with the result, Justice Donohue wrote that “the complicated legal issue presented in this appeal is unfortunately not resolvable because of the undeveloped evidentiary record and undirected advocacy in the trial court.” She concluded that Defendant had failed “to establish the relevance of the applicable industry standards to any of the factors previously identified as relevant to the jury’s determination that a product is unreasonably dangerous,” id.; therefore, the trial judge did not err by excluding the evidence.
A dissenting opinion by Chief Justice Todd and Justice Brobson pointed to the Court’s earlier statement in Tincher that in design defect cases “the character of the product and the conduct of the manufacturer are largely inseparable.” They argued compliance evidence can be relevant to the factors that Tincher held to be relevant to whether a product is defective. They emphasized that only one other state (Montana) bars such evidence. And, they noted the Pennsylvania cases that allow plaintiffs to present evidence of failure to comply with such standards, a one-sided rule they contended was “patently unfair” and inconsistent with the Court’s premise that compliance is irrelevant to whether a product is defective.
Despite the fractured views of the six justices, the Court’s affirmance of the Superior Court ruling presents defendants in Pennsylvania with a significant challenge in presenting evidence of government or industry standards, at least in a design defect case tried strictly on a risk-utility theory. Both the Superior Court opinion and the principal opinion in the Supreme Court focused on the notions that due care is irrelevant and that strict liability focuses on whether the product is defective based on consideration of the so-called “Wade factors.” See Tincher, 104 A.3d at 398-99 (quoting John W. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825, 837-38 (1973)). In light of Sullivan, defendants are most likely to succeed by presenting evidence tied to those factors and avoiding explicit reliance on government or industry standards, even if they inform the analysis of the relevant factors. If the standards are thought to be critical to the argument, a defendant should develop a record showing their relevance to the application of the “Wade factors,” while emphasizing that the standards are only one part of the basis for any expert testimony, to ensure alternate grounds to admit the testimony if discussion of the standards is barred.
While the Superior Court opinion in Sullivan approved exclusion of compliance evidence as “reasonable” under Pennsylvania’s strict liability law, that conclusion did not command an actual majority in the Supreme Court and runs contrary to the trend in product liability law that merges negligence and strict liability concepts in design defect cases, as reflected in the contrary rulings in most other states and the Court’s own comments in Tincher. The Pennsylvania Supreme Court may revisit this issue on the robust record Justice Donahue found wanting in Sullivan.
Notably, this case does not address compliance evidence in contexts other than a risk-utility design defect case, nor does it call into question the use of such evidence in cases in which negligence claims are also presented, consistent with decisions (including the principal opinion in Sullivan) stating that such proof is relevant to due care.
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