Tincher Continues To Confuse Pennsylvania Products AttorneysIt has been a year since the Pennsylvania Superior Court decided that PA would continue to follow the Restatement (Second) of Torts in Tincher v. Omega Flex, and the fog of confusion surrounding the state of products liability law has not ebbed. The recent case of Sliker v. Ntnl Feeding Systems, No. 282 CD 2010 (C.P. Clarion Co. Oct. 19, 2015 Arner, P.J.), illuminates this problem. In Sliker, the plaintiff suffered a significant injury that resulted in a left leg amputation when he attempted to fix a silo unloader that had become stuck. Plaintiff was servicing the auger portion of the unloader while it was still moving. Evidence of Tincher confusion became obvious during the pre-trial stage of this matter, when a glut of motions in limine were filed. Plaintiff filed two motions in limine at issue here. First, he argued that defendants should not be allowed to introduce evidence of negligence, since under the Restatement (Second) of Torts; the user’s conduct is irrelevant and prejudicial. The plaintiff cited Tincher’s reasoning that such evidence is outside the confines of the risk-utility standard. Meanwhile defense cited Tincher as a means to demonstrate that the Court no longer so strictly distinguishes the two concepts. Judge Arner ultimately agreed with defendant and held that evidence of negligence can be relevant because “the user’s ability to avoid danger in using a product will factor into the manufacturer’s conduct”. In addition both sides also cited Tincher in plaintiff’s motion to exclude defendant’s evidence of compliance with industry standards. Plaintiff used Tincher to argue that a manufacturer’s reasonableness is irrelevant to its product’s defectiveness, while NFS argued that compliance with industry standards is now relevant to the consumer-expectation and risk-utility test. In this instance, Arner also sided with defense. He noted that since there is no affirmative authority from Tincher or other precedential cases, “barring such evidence as a matter of law, the principles of Tincher counsel in favor of its admissibility”. As is evidenced by the above arguments, there has been virtually no consensus from the Pennsylvania bar on the practical application of Tincher. Over the last year there have been numerous instances of courts throughout the state struggling with the legal implications. A close reading of all the recent products liability opinions is a useful tool in predicting how the courts will handle your products liability issue. Thanks to Remy Cahn for her contribution to this post. Please email Brian Gibbons with any questions.