In November 2014, the Pennsylvania Supreme Court issued the much anticipated opinion of Tincher v. Omega Flex. While the state of product liability law was significantly altered in the Commonwealth, the Tincher opinion left open the question whether it would be applied retroactively.

Following the Middle District of Pennsylvania’s recent decision of Nathan v. Techtronic Industries, it appears both state and federal courts in the Commonwealth will apply Tincher to cases filed before Tincher was handed down by the Pennsylvania Supreme Court.

The court in Tincher explicitly overruled the often criticized Azzarello v. Black Brothers decision and held that a plaintiff pursuing a cause of action based in strict liability must prove that the product is in a “defective condition” by showing that either (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweighs the burden or costs of taking precautions.

According to the Supreme Court in Tincher, the plaintiff, in proving his or her case, can proceed under one or both of the following theories of law: the “consumer expectation” and/or the “risk utility” definitions of defect. The consumer expectation standard is that “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.” The risk/utility standard is “a test balancing risks and utilities or, stated in economic terms, a cost-benefit analysis.”

Perhaps most importantly, Tincher held that whether a product is in a “defective condition” is to be a question of fact that should be submitted to the jury. Therefore, the question is removed from the jury’s consideration only when it is clear that reasonable minds could not differ on the issue. Therefore, the trial court is relegated to its traditional role of determining issues of law previously prohibited under Azzarello.

In Nathan, the plaintiff claimed that he was injured while using a table saw. The saw contained a blade guard assembly, which the plaintiff removed, as it prevented him from making narrow cuts. The plaintiff brought strict liability and negligence claims based primarily upon design defect allegations.

The Middle District Court began its analysis assessing whether Tincher should apply retroactively. In so doing, the court noted several elements it would consider, including whether a retroactive effect would further or hinder the purpose of the new law, whether the parties would be unfairly prejudiced as they relied on old law, and whether a retroactive effect would detrimentally affect the administration of justice. The Middle District Court concluded that all three factors weighed in favor of applying Tincher retroactively.

Specifically, the court held that the parties would not be unfairly prejudiced because, even under Tincher, the focus remained on the condition of the product and not the conduct of the manufacturer. In addition, neither party would be unfairly prejudiced in having the jury, rather than the court, balance the risk and utilities associated with a design defect inquiry. Finally, the court reasoned that applying Tincher retroactively would not detrimentally affect the administration of justice as the matter was in the pre-trial stage and its application would not result in the costs and/or delays associated with conducting a second trial.

What It Means to You

While the ultimate effects of Tincher are uncertain, what is clear is that the case will have a significant impact on the product liability litigation landscape in the Commonwealth. And while the Middle District’s analysis in Nathan is not necessarily controlling upon Pennsylvania state cases, it may be utilized by trial judges and appellate courts as guidance, particularly as its reasoning is broad enough to arguably encompass any existing action.