Wade Clark Mulcahy LLP

<p style="text-align: justify;">In the seminal products liability case, <em>Tincher v. Omega Flex, Inc.</em>, 104 A.3d 328 (Pa. 2014), which we reported on <a href="https://www.wcmlaw.com/2015/11/tincher-continues-to-confuse-pennsylvania-products-attorneys/">here</a>, the Pennsylvania Supreme Court stated that the plaintiff is the “master of the claim.” But there may now be limitations on such "mastery." In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/09/Davis-v.-Volkswagen-Grp.-Of-Am..pdf">Davis v. Volkswagen Grp. Of Am.</a>,</em> 2019 WL 3252054, the Pennsylvania Superior Court held that the trial court could instruct the jury to use either the consumer expectation test or the risk-utility test. The court did not have to use the test advocated by the plaintiff.</p>
<p style="text-align: justify;">In <em>Davis</em>, Jane E. Davis brought a claim on behalf of her husband after he had died in an accident while driving the couple’s Volkswagen. The accident involved a head on collision where another car crossed the center line and hit the Davis’ Volkswagen. The car eventually burst into flames and Mr. Davis died later due to injuries from the fire. Mrs. Davis filed suit against, among others, Volkswagen. Mrs. Davis’s claims included a products liability claim alleging that the Volkswagen was in a defective condition. She attempted to prove this through the consumer expectation test. As such, she requested that the court instruct the jury to use the consumer expectation test. The court declined to do so. Subsequently, Davis lost and appealed the decision to the Pennsylvania Superior Court. She argued that because a plaintiff is the “master of the claim,” the court should allow the plaintiff to pursue her chosen theory of liability in jury instructions. The court disagreed.</p>
<p style="text-align: justify;">In its opinion, the Pennsylvania Superior Court acknowledged the language in <em>Tincher</em>; however, the court upheld the trial court’s decision instructing the jury on both the consumer expectation test—advocated by Davis—and the risk-utility test—advocated by Volkswagen. The court said that because there was evidence pointing to the test advocated by Volkswagen, it was not limited to instruct the jury only on plaintiff’s theory of liability.  Further, the court said that by instructing the jury on any applicable test, it enabled Davis to pursue her claim, and it allowed the jury to apply all relevant tests to the facts.</p>
<p style="text-align: justify;"><em>Davis</em> suggests that going forward, defendants may not be be forced endure jury instructions only using plaintiffs’ theories of the case. <em>Davis</em> demonstrates that the court will honor plaintiffs’ theories, and at the same time, allow defendants to submit its instructions if supported by evidence.  Thanks to John Lang for his contribution to this post.</p>
<p style="text-align: justify;">Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>