Compliance with Industry or Government Standards Inadmissible in Pennsylvania Design Cases

The Pennsylvania Supreme Court’s recent decision in Sullivan v. Werner Co., 206 A.3d 846 (Pa. Super 2023) dealt a blow to defense interests by reaffirming that compliance with governmental standards is not admissible in strict liability cases.

The holding in Sullivan confirmed that evidence of industry and governmental standards remains inadmissible following the Pennsylvania Supreme Court’s holding in Tincher v. Omega Flex, 104 A.3d 328 (2014). Tincher confirmed the adoption of Section 402A of the Restatement (Second), which imposes strict liability on sellers of an unreasonably dangerous product. Notably, Tincher overruled Azzarello v. Black Brothers Co., Inc., 391 A.2d 1020 (1978), which previously held, in part, that the “unreasonably dangerous” standard poses a legal question. Under Tincher, the “unreasonably dangerous” inquiry is a question of fact requiring a jury to determine if a product is defective.

Following Tincher, uncertainty lingered as to whether the overruling of Azzarello also overruled the “Lewis Rule,” under which evidence of industry and governmental standards is inadmissible in strict product liability cases. Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 528 A.2d 590 (1987), However, the Lewis Rule was developed before Tincher, while Azzarello was still controlling precedent, thus creating confusion and requiring the Pennsylvania Supreme Court to resolve an issue that has plagued litigants in strict liability litigation for a decade.  

The Sullivan court closely examined two tests created by Tincher to determine whether a product is unreasonably dangerous: (1) whether the product danger exceeds the expectations of an ordinary consumer (the “consumer expectation test”) and (2) whether the risk of danger outweighs the utility of a product (the “risk-utility test”). It is important to note that Tincher rejected any application of traditional negligence concepts in strict liability litigation, meaning that a product seller can still be strictly liable even if it exercised due care or acted reasonably in a manner that would usually preclude negligence liability under Pennsylvania law. 

The Sullivan court confirmed that the Lewis Rule still applies post-Tincher, even though Lewis rested on the negligence-based concepts of Azzarello. The Supreme Court reasoned that Tincher is not compatible with a rule permitting trial evidence of industry-standard compliance, bootstrapping the Lewis Rule into a more modern post-Tincher standard. Compliance is “irrelevant if a product is designed with all possible care….because the manufacturer is still liable if the product is unsafe.”

The Sullivan decision is yet another example of Pennsylvania common law reinforcing the wall between strict liability and negligence theories. Defendants may be liable for selling a dangerous product, even if the defendants designed the product reasonably and with the utmost due care and compliance with governmental standards. What Sullivan did not address, however, is the role that certain federal preemption rules—such as those found in the Federal Hazardous Substances Act or Food and Drug Administration regulations—may have on defective product cases. It may be another ten years before the Supreme Court has an opportunity to address these types of issues, and, until then, uncertainty created by Tincher will continue to affect strict product liability litigation in the Commonwealth.

If you have any questions about this legal update or any other legal developments, please contact the authors or Gordon Rees Scully Mansukhani’s Environment/Toxic Tort practice group for more information.

No Liability for Others’ Asbestos Products

The Bloomberg BNA Toxics Law Reporter reported this morning concerning an important new decision from the Supreme Court of California in O’Neil v. Crane Co., Cal., No. S177401, 1/12/12
In summary, California’s high court reaffirmed the principle that a product manufacturer may not be held strictly liable or negligent for harm caused by another maker’s product, except where the defendant has some direct responsibility for the harm.  In so holding, California refused to open the floodgates in the asbestos litigation to permit suits against manufacturers that never manufacturer or marketed asbestos-containing products.

Joining the majority of other jurisdictions that have considered the issue, California’s highest court held that California law did not impose liability on manufacturers of shipboard valves and pumps used in conjunction with asbestos-containing parts made by others.  In this case, the high court reversed the California Court of Appeal, Second Appellate District, which ruled in favor of the family of Patrick O’Neil, a naval officer allegedly exposed to asbestos from 1965 to 1967. O’Neil died of mesothelioma, a disease caused by asbestos, at 62.                                                                                  
 “[A] product manufacturer generally may not be held strictly liable for harm caused by another manufacturer’s product. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm,” Justice Carol A. Corrigan wrote for the court.

The court rejected the family’s argument that Crane Co. and Warren Pumps LLC, which made valves and pumps used on the ship, should be held strictly liable because they foresaw that their products would be used with replacement asbestos parts. The rationale for the Court’s holding is that  “[T]he foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a nondefective product, or one whose arguably defective product does not actually cause harm.”   The Court left open the possibility for imposing liability for a non-manufacturer of asbestos in instances where it could be shown that “the defendant’s own product contributed substantially to the harm” or “the defendant participated substantially in creating a harmful combined use of the products.”  However, that was clearly not the case here.

As to the plaintiff’s negligence claims, the Court held that the defendants pump and valve companies owed no duty of care in the circumstances, based on “strong policy considerations.”
The companies’ connection to O’Neil’s injury was remote because they did not manufacture the asbestos-containing products; imposing a duty would be unlikely to prevent future harm; the Navy made its own purchasing choices and specifications; and consumers could potentially be harmed by too many product warnings, the court reasoned.

Increasingly, the plaintiff bar is seeking to impose strict product liabililty on manufacturers whose products did not cause the alleged harm.  This trend in asbestos cases is not dissimiliar from those pharmaceutical product  liability cases in which the plaintiffs seek to hold a brand name drug manufacturer liable, whose product was never taken by the injured party, for injuries allegedly caused by a generic manufacturer’s product.  These lawsuits are offensive to longstanding product liability case law and policy and should be rejected by the courts.