PA: Dispute Over Products Jury Instructions

In late 2014, the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, overruling several unusual aspects of state law and declining to adopt R3.  The case created a lot of uncertainty, which has been compounded by recent turnover on the court.  This summer, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions unveiled the first changes to standard products jury instructions in forty years.  The defense bar and manufacturers are not happy.  In a ten-page letter (Download DC-#626926-v1-Pa__jury_instruction_protest_letter_2016)  sent to the subcommittee’s chair, partners from multiple law firms and twenty companies, including Johnson & Johnson; Pfizer Inc.; GlaxoSmithKline; Ford; Shell Oil, and Eli Lilly, raised objections to the proposed standard jury instructions.  The Legal Intelligencer reports:

Chief among those issues, the defense bar said, is the update’s failure to include any mention of the requirement under Section 402A of the Restatement (Second) of Torts that a product defect must be “unreasonably dangerous” to support strict liability. The instructions are inconsistent with Tincher’s adoption of the “prevailing standard of proof” reflected in the jury instructions of most states that follow Section 402A, and should be rewritten to include an instruction on the issue, the letter said.

The subcommittee chair responded that the subcommittee had taken all perspectives into account when crafting the revisions, but would nevertheless review the proposed instructions again at its next meeting.  The full article (behind a free sign-up wall) is here.