Wade Clark Mulcahy LLP

<p style="text-align: justify;">The Pennsylvania Superior Court recently issued an opinion that deals plaintiffs a major victory in product litigation. See <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/04/Sullivan-v.-Werner-Company.pdf">Sullivan v. Werner Company</a>,</em> et al., 2012 Pa. Super. 66 (Pa. Super. Ct. April 15, 2021). Sullivan was injured when he fell from scaffolding manufactured by Werner. Sullivan was familiar with the product and testified to assembling “hundreds” of scaffolds through the course of his career. On the day in question, he removed the scaffolding from the box and erected the scaffolding with the assistance of a co-worker. Sullivan and the co-worker then rolled the scaffolding outside, down a ramp and over outdoor asphalt to the wall where they would be working. Sullivan went up the scaffolding once, then rolled the scaffolding to the next area to continue his work on the wall. After moving scaffolding for the third time since original erection, Sullivan “fell through the scaffold [as if] the plank gave way.” Sullivan testified the “platform collapsed beneath him like a trapdoor.” He got up and continued to work through the rest of the day, using the very same scaffold to complete the job. He later sued Werner and Lowe’s, the retailer where Sullivan’s employer purchased the scaffold.</p>
<p style="text-align: justify;">At trial, Sullivan sought to enter the following evidence. Sullivan’s expert supported his opinion on alternative feasible designs based on scaffolding manufactured by others already in the marketplace. Sullivan also sought to introduce a video of his expert manipulating the product in an effort to reproduce a collapse of the platform. Interestingly, the manipulations used by the expert were wholly unsupported by any fact of record in the case.</p>
<p style="text-align: justify;">In response, the defense sought to introduce the following evidence. First, evidence that the scaffold at issue complied with the safety standards of the American Standards Institute (ANSI) and the Occupational Safety and Health Administration. Second, in an effort to counter the opinions of plaintiffs’ expert on alternative designs, the defense sought to introduce evidence that the scaffold design at issue was the most prevalent in the industry. Finally, the defense sought to introduce evidence of misuse of the product by Sullivan in that Sullivan failed to ensure the pins were properly place after repeatedly moving the scaffolding throughout the day. Sullivan moved to exclude all of the aforementioned evidence and the trial court agreed. The jury returned a verdict for the plaintiff in the sum of 2.5 million, and the defendants appealed.</p>
<p style="text-align: justify;">For purposes of this article, we will only address the opinion related to evidence of industry standards. To that end, a discussion of the development of Pennsylvania law on the issue is instructive.</p>
<p style="text-align: justify;">Prior to November of 2014, Pennsylvania courts barred the introduction of any evidence tending to introduce negligence concepts into a strict liability analysis. <em>Azzarello v. Black Bros., Co.,</em> 391 A.2d 1020 (Pa. 1978). Azzarello resulted in jury instructions advising that a product was defective unless it contained every element necessary to make the product safe for intended use. The jury instruction was repeatedly upheld even though it directly contradicted the general premise that strict liability was not absolute liability. Subsequent opinions progressively moved the needle rendering product manufacturers and suppliers not just guarantors, but insurers of products. Then came the groundbreaking opinion from the Pennsylvania Supreme Court in <em>Tincher v. Omega Flex,</em> 104 A.3d 328 (Pa. 2014), which completely overhauled strict liability claims in products cases.</p>
<p style="text-align: justify;">The issue in <em>Tincher</em> was whether Pennsylvania would remain a Restatement (Second) jurisdiction or, alternatively, adopt the Restatement (Third) of Torts. The Restatement (Second) imposes liability for products in a defective condition unreasonably dangerous to the intended user, hence the battle of the introduction of negligence concepts in a strict liability analysis. The Restatement (Third), on the other hand, follows a risk-utility analysis and generally requires proof of a feasible alternative design. The Tincher Court reaffirmed that Pennsylvania remains a Restatement (Second) jurisdiction and, in an effort to clear up confusion over how to determine whether a product is in a defective condition unreasonably dangerous to the user, the court adopted two tests. To establish a defect, a plaintiff may show either: (1) the danger is unknowable and unacceptable to the average or ordinary consumer (consumer expectations standard); or (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions (risk-utility standard). <em>Tincher,</em> 104 A.3d at 385-391.</p>
<p style="text-align: justify;">The <em>Tincher</em> Court also expressly overruled <em>Azzarello</em>, effectively eliminating the absolute ban on any and all evidence which might introduce negligence concepts into a strict liability analysis. Although the Court left decisions from <em>Azzarello’s</em> progeny for another day, the Court made very clear that strict liability was not absolute liability and that negligence concepts could very well have bearing on design claims moving forward. <em>Id.</em> at 409-410. Therefore, post <em>Tincher</em>, the admissibility of evidence of industry standards is not solely based on whether the evidence tends to introduce negligence concepts into a strict liability claim.</p>
<p style="text-align: justify;">In <em>Sullivan,</em> the Superior Court went to great lengths to conclude otherwise in a thinly veiled attempt to justify a finding for the plaintiffs by providing a convoluted recitation of pre-<em>Tincher</em> precedent following <em>Azzarello</em> and its progeny before circling back to the present day landscape. Although the Superior Court cited to the very portions of <em>Tincher</em> providing that evidence of industry standards is relevant to a risk-utility analysis, the Court nevertheless affirmed the exclusion here even though <em>Sullivan’s</em> introduction of alternative designs opened the door to a risk-utility analysis.</p>
<p style="text-align: justify;">While criticizing the defense for relying on federal court cases permitting evidence of industry standards, the Superior Court relies on a federal court decision precluding evidence of industry standards. <em>Sullivan,</em> 2012 Pa. Super. 66 at p. 26 (citing <em>Merculo v. Louisville Ladder, Inc.</em>, 2019 WL 1657325 (M.D. Pa. 2019). However, <em>Merculo</em> held that such evidence is inadmissible unless the plaintiff opens the door. As applied to Sullivan, the question then should have been whether Sullivan opened the door to the introduction of the evidence. Although Sullivan arguably opened the door by offering evidence of what others in the industry were doing, the Court fails to consider this issue or the fundamental unfairness in precluding the defense from rebutting the same type of evidence offered by a plaintiff. Instead, the Superior Court made a “final and important observation . . . compl[iance] with industry or government standards goes to whether [the manufacturer/supplier] exercised all possible care in preparation of the product in making the design choice, not on whether there was a design defect in the product itself.<em>” Id.</em> at p. 29.</p>
Incredibly, after first discussing situations in which the evidence may be admissible, the Superior Court doubled down and proclaimed as follows:
<p style="text-align: justify;">While we agree [] that our Supreme Court may allow industry and governmental standards in a manner suggested by the RESTATEMENT (THIRD) in the future, until it does, <em>Tincher,</em> neither explicitly nor implicitly overrules the exclusion. . . Accordingly, the trial court’s decision to exclude such evidence was not unreasonable.</p>
<p style="text-align: justify;"><em>Id</em>. at p. 30.</p>
<p style="text-align: justify;">In short, <em>Sullivan</em> stands for the proposition that compliance with industry standards is inadmissible.</p>
Thanks to Jennifer Seme for her post. Please contact Jennifer with any questions.