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Case Bulletin – Superior Court offers another Opinion Regarding the New Products Liability under Tincher

On Monday, August 20, 2018, the Superior Court authored its most recent opinion providing further insight into the application of the new products liability standard from Tincher v. Omega Flex, 104 A.3d 328, 399 (Pa. 2014). The Superior Court considered an appeal from the grant of a defendant’s summary judgment on the theory of defective design. Dunlap v. Fed. Signal Corp., ___ A.3d ___, 2018 Pa. Super. 231 (Aug. 20, 2018).

In Dunlap, a group of approximately 250 firefighters sued the manufacturer of a siren, which caused hearing loss. The plaintiffs offered an acoustics expert who provided an alternative design that diverted the sound, thereby reducing the noise level. However, this expert failed to opine on whether the proposed alternative design either was effective or would adequately protect the public. Thus, the defendant was awarded summary judgment.

On appeal the plaintiffs contended primarily that this expert opinion was sufficient to survive summary judgment because the proposed alternative met minimum industry standards. The Superior Court affirmed summary judgment. It noted that even post-Tincher, a product’s compliance with government or industry standards has generally been irrelevant and inadmissible. However, it found that this issue was not directly before it on this appeal. 2018 Pa. Super. 231 at n. 8. Instead, the court held that plaintiffs’ proof that their proposed design met the industry standard was not enough to establish a prima facie case that it was more effective for all users than the existing siren.

In his dissenting opinion, Judge Lazarus explained that the admissibility of government and industry standards post-Tincher remains unclear, but “a plaintiff in a strict product liability action . . . may open the door to the introduction by a defendant of evidence of compliance with industry or governmental standards if a plaintiff introduces witness testimony regarding such standards during direct or cross-examination.” Id. (Lazarus, J. dissenting).

Another interesting footnote from Dunlap states that in Tincher the Pennsylvania Supreme Court expressly noted that in California, when a plaintiff proceeds on a strict products liability theory based on the risk-utility standard, the burdens of production and persuasion shift to the defendant to prove that its product is not defective in design. However, Tincher declined to opine on whether such a burden-shifting rule applied in Pennsylvania. See Dunlap, 2018 Pa. Super 231 at n. 3. Thus, it appears that, for now, the burden remains on Plaintiff to prove his or her case.