Pennsylvania Supreme Court affirms ban on industry and government standards evidence in strict products liability cases

In strict products liability cases, product manufacturers and sellers often seek to introduce evidence that the subject product complied with industry or government safety standards in defending its design. Most states allow them to do so.

The Pennsylvania Supreme Court, however, recently rejected an opportunity to join that majority. In Sullivan v. Werner Co.,[1] the Court affirmed a decades-old doctrine preventing defendants from introducing industry and government standards evidence in strict products liability cases. The Court’s ruling contravened predictions that its previous decision in Tincher v. Omega Flex, Inc. would make such evidence admissible.

Sullivan will have significant implications for defendants litigating strict products liability claims in Pennsylvania.

Background

For decades, Pennsylvania followed an “idiosyncratic” approach to strict products liability claims.[2] The elements of such claims mirrored most states’, requiring a plaintiff to show that (1) “his/her injuries were caused by the product of a particular manufacturer or supplier,” and (2) “the product was defective.”[3] Thus, if a manufacturer’s defective product caused injury, the manufacturer faced liability regardless of intent. The idiosyncrasy arose in proving defect.  Under the Pennsylvania Supreme Court’s decision in Azzarello v. Black Bros. Co.,[4] juries could not hear “negligence concepts” when deciding strict products liability cases.[5] This was so even though Pennsylvania had adopted Section 402A of the Second Restatement of Torts, which itself used negligence terminology by imposing liability upon those who sold an “unreasonably dangerous” product.[6] The Azzarello Court thought that the “unreasonably dangerous” moniker would “mislead[]” juries into thinking the manufacturer’s intent mattered.[7] Under Azzarello, trial courts first had to decide whether a product was unreasonably dangerous before submitting the case to a jury.[8]  The Supreme Court later extended Azzarello in Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc.,[9] banning evidence that a product complied with industry or government standards.[10] The Court reasoned that such evidence constituted a “negligence concept” that would “divert[] the jury’s attention” from the product’s safety to the manufacturer’s conduct.[11]

After Azzarello’s complex framework endured copious criticism,[12] the Supreme Court set new precedent with its 2014 ruling in Tincher. Tincher replaced Azzarello’s rubric with two tests for finding defect. First, under the “consumer expectations test,” a product is defective if it contains a danger that is “unknowable and unacceptable to the average or ordinary consumer.”[13] Second, under the “risk-utility test,” a product is defective if “a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precaution.”[14]

Along the way, the Tincher Court criticized Azzarello’s ban on negligence principles, noting that Azzarello perpetuated the very jury confusion it sought to dissipate.[15] Still, the Tincher Court explicitly left unanswered its opinion’s downstream effects – like whether Lewis’s ban on industry and government standards survived Azzarello’s overruling.[16]

Sullivan v. Werner Co. (Superior Court)

In April 2021, the Superior Court definitively upheld Lewis’s ruling on that issue.[17] In Sullivan, a carpenter became injured after falling through an allegedly defective scaffold.[18] Werner Co., the scaffold’s manufacturer, proffered evidence that the scaffold complied with industry standards from the American National Standards Institute (ANSI) and government standards from the Occupational Safety and Health Administration (OSHA).[19] Werner Co. argued that Tincher’s risk-utility test made the evidence admissible by creating “an opportunity to analyze post hoc whether a manufacturer’s conduct in manufacturing or designing a product was reasonable.”[20] Despite Tincher, the trial court excluded the evidence under Lewis.[21]

The Superior Court affirmed. It reasoned that industry and government standards evidence remained irrelevant after Tincher because a manufacturer could still design a product with “all possible care” and be liable.[22] While Tincher did “cast some doubt” about Lewis’s ban on industry and government standards evidence, Pennsylvania remained governed by the Second Restatement’s strict liability regime.[23] According to the Superior Court, industry and government standards only related to the reasonableness of the manufacturer’s conduct, which is irrelevant to the Second Restatement’s framework.[24]

Sullivan v. Werner Co. (Supreme Court)

Werner Co. appealed to the Pennsylvania Supreme Court, arguing that industry and government standards evidence became admissible under Tincher’s risk-utility test. Werner Co. argued that the risk-utility test invited inquiry into the reasonableness of a manufacturer’s conduct – and complying with safety standards is more likely to make conduct reasonable.[25] Werner Co. also argued that Tincher destroyed Azzarello’s strict divide between products liability and negligence concepts, meaning Pennsylvania’s liberal rules of evidence permitted the standards.[26]

The Supreme Court disagreed in a three-justice plurality opinion (an “Opinion Announcing the Judgment of the Court”) authored by Justice Sallie Updyke Mundy in December 2023. The Court held that industry and government standards evidence remains inadmissible because, “[a]lthough Tincher overruled Azzarello, it did not overrule Lewis or criticize its reasoning.”[27] The three justices found that Pennsylvania remains governed by the Second Restatement, meaning that “liability may be incurred irrespective of fault.”[28] The Court disagreed that the risk-utility test “incorporate[d] negligence concepts,” holding that Tincher “was careful to distinguish” strict liability from negligence.[29] Ultimately, the plurality echoed Lewis’s reasoning: Compliance evidence “diverts attention from the product’s attributes to both the manufacturer's conduct and whether a standards-issuing organization would consider the product to be free from defects.”[30]

Chief Justice Debra Todd penned a dissent joined by Justice Kevin Brobson. She disagreed with the plurality’s holding for at least five reasons: It (1) perpetuated Azzarello’s much-criticized divide between products liability and negligence; (2) ignored Tincher’s teachings that products liability and negligence concepts necessarily overlap; (3) distinguished Pennsylvania from almost every other state’s approach; (4) accepted “the patent unfairness” of permitting plaintiffs to introduce such evidence, but not allowing defendants to do so; and (5) prohibited juries from hearing relevant information.[31]

Justice Christine Donohue issued a lone concurrence. Despite noting her agreement with “many” principles the plurality offered, Justice Donohue found dispositive the manufacturer’s failure to create an evidentiary record showing the standards’ relevance.[32]

Key takeaways

Sullivan represents one of the Pennsylvania Supreme Court’s most significant products liability opinions since Tincher. It limits defendants’ ability to introduce often-helpful industry and government standards evidence, reshapes how courts will apply the risk-utility test, and generates new questions about Pennsylvania’s products liability law.

Sullivan hamstrings defendants’ ability to introduce industry and government standards evidence – but it does not extinguish that ability. Defendants may still introduce such evidence under two circumstances: (1) where plaintiffs bring products liability claims sounding in negligence, as negligence requires plaintiffs to prove defendants’ fault;[33] and (2) where plaintiffs affirmatively introduce such evidence.[34] The latter category represents a particularly curious outcome of Sullivan – seemingly allowing for the admission of industry and government standards in a plaintiff’s case, but expressly precluding them as irrelevant to support the defense.[35] Nonetheless, defendants should remain vigilant during strict products liability trials in case plaintiffs open the door to industry and government standards evidence.

Sullivan also reshapes how Pennsylvania courts will apply Tincher’s risk-utility test. Before Sullivan, several judges had thought Tincher made industry and government standards evidence admissible.[36] They reasoned that the risk-utility test invited inquiry into the manufacturer’s weighing of risks and utilities in designing a product as it did, and industry and government standards evidence would be relevant to such an inquiry. But the Sullivan Court disagreed by holding that the risk-utility test focuses “on the characteristics of the product.”[37] It also disagreed that Tincher invited inquiry into the manufacturer’s conduct, as that would “incorporate negligence concepts” into strict liability.[38] Practitioners should be mindful that manufacturers’ conduct is irrelevant to the risk-utility test.

Finally, Sullivan creates doubts regarding just how much Tincher changed Pennsylvania’s products liability law. While the Tincher Court explicitly left unanswered whether it changed other elements of Pennsylvania products liability law, its forceful overruling of Azzarello suggested changes were coming. Sullivan suggests otherwise. For example, the Sullivan Court exhumed the same logic from Azzarello that Tincher had criticized: “divert[ing] the jury’s attention.”[39] What’s more, the Sullivan Court affirmed Lewis because Azzarello did not specifically “overrule Lewis or criticize its reasoning.”[40] But, as other courts have found, “Lewis based its reasoning entirely upon Azzarello[].”[41] The Court’s reasoning calls into question whether other Azzarello-based doctrines, like the High Court’s general ban on “negligence concepts,”[42] survived Tincher. Sullivan being a plurality opinion only deepens the uncertainty.[43]

For questions about how to navigate Pennsylvania’s complex strict products liability doctrine following Sullivan, contact the authors or your DLA Piper relationship attorney.