We were first on the web with the news that the Pennsylvania Supreme Court had overruled Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), in Tincher v. Omni Flex, Inc., ___ A.3d ___, 2014 WL 6474923 (Pa. Nov. 19, 2014).  We were also first on the web with a detailed analysis of what the Court did, and did not do, in Tincher – within 24-hours of the 137-page decision becoming available.

That’s all well and good.  We hope we saved at least some of our readers the hassle of having to drop everything and read/noodle over the lengthy opinion.  Now, you can do so in an orderly fashion.  But being out there “fustest with the mostest ” also made us something of a lightning rod when the other side of the “v.” decided that they were going to try to spin Tincher as some sort of “win.”

Tincher a win for the plaintiffs?  That’s frankly absurd.  They remind us of Bagdad Bob – claiming that Saddam Hussein “won” the first Gulf War because he didn’t lose it as badly as he did the second Gulf War.  Just avoiding a total wipeout isn’t a “win.” General Lee did not “win” at Gettysburg because he was able to get away after the battle (although President Lincoln did cashier General Meade for letting that happen).  Sure, Bexis would have liked the Third Restatement better.  As an amicus, it’s his job to go for the home run, and sometimes he gets it, but smacking the ball off the wall still counts as an extra base hit.

There are two main reasons why plaintiffs took it on the chin in Tincher.

First:  For thirty-five plus years, every defendant in a Pennsylvania design defect trial heard the jury instructed:

“The supplier of a product is the guarantor of its safety.  The product must, therefore, be provided with every element necessary to make it safe for its intended use, and without any condition that makes it unsafe for its intended use.”

Azzarello, 391 A.2d at 559 n.12.  This “plaintiff wins” instruction is gone.  It was, as Tincher stated, “quoted subsequently out of context by the majority in Azzarello as the standard of proof in a strict liability action.”  Tincher, 2014 WL 6474923, at *29; accordid. at *42 (language was “quoted out of context” and “significantly altered the import of the Berkebile passage”).  “Predictably, the ‘approval’ of such jury instructions operated to discourage the exercise of judicial discretion . . ., and likely stunted the development of the common law.”  Id.  If anything, the Court’s criticism of the “guarantor” language was even “greater”:

The greater difficulty is that the Azzarello standard is impracticable.  As an illustration of its new standard’s application, the Azzarello Court offered that a supplier is not an insurer of a product, although it is a guarantor; these terms of art, with no further explanation of their practical import.

Tincher, 2014 WL 6474923, at *42 (emphasis added).  So that’s gone, and we couldn’t be happier.

We have a challenge for anybody claiming that losing this jury charge was a “win.”  Plaintiffs’ lawyers know good and well how to press every advantage for their clients.  That’s their job. That’s why they loved the Azzarello instruction.  How many times has the plaintiff side used it in closing argument?  Frankly, we’ve never seen them not argue “every element”/”guarantor” to the jury.  They’d be fools not to.  If any of the self-proclaimed “winners” on the other side of the “v.” didn’t think this was important, then what follows should be easy – post a transcript of a closing argument in a design defect case (or warning defect case for that matter) to which Azzarello applied in which you did not mention this language to the jury.

We’ll bet there aren’t any.

Second:  After “Azzarello, decisional focus in strict liability cases shifted to reflect an increasing concern with segregating strict liability and negligence concepts.”  Tincher, 2014 WL 6474923, at *31.  Most notably this “segregation” prompted exclusion of industry standards as “negligence” evidence in Lewis v. Coffing Hoist Division, 528 A.2d 590 (Pa. 1987) – an exclusion later extended to compliance with mandatory government standards by the Superior Court (an appellate court in Pennsylvania) – and of a plaintiff’s comparative fault in Kimco Development Corp. v. Michael D’s Carpet Outlets, 637 A.2d 603 (Pa. 1993).  Concerning these (and other) decisions, Tincher observed:

Subsequent decisional law has applied Azzarellobroadly, to the point of directing that negligence concepts have no place in Pennsylvania strict liability doctrine; and, as we explain, those decisions essentially led to puzzling trial directives that the bench and bar understandably have had difficulty following in practice, including in the present matter.

2014 WL 6474923, at *39.  Accord Id. at *43 (“[s]ubsequent application of Azzarello elevated the notion that negligence concepts create confusion in strict liability cases to a doctrinal imperative, whose merits were not examined”).

Henceforth, Tincher held, the “typical” design defect case will include negligence concepts:

By comparison, the Tinchers’ claim was essentially premised upon the allegation that the risk of harm related to [the product] was both foreseeable and avoidable, as illustrated by the [characteristics of their alternative design].  These allegations, at least, bear the indicia of negligence.  Indeed, in some respects this is the “typical” case, which explains both the insight that in design cases, the character of the product and the conduct of the manufacturer are largely inseparable, and the Third Restatement’s approach of requiring an alternative design as part of the standard of proof.

Id. at *67 (emphasis added).  The Tincher court’s refusal to adopt the Third Restatement thus was not driven by rejection of its principles in the “typical” case, but rather by concerns that atypical products not be immunized from liability:

[T]he point that we have stressed repeatedly in this Opinion, is that courts do not try the “typical” products case exclusively and a principle of the common law must permit just application to myriad factual circumstances that are beyond our power to conceive.

Id.  In an atypical case the Third Restatement’s “rule [may] outrun the reason.”  Id.  But, by definition, most cases are “typical.”  Thus, the Court advised:  “the decision to overrule Azzarello . . . may have an impact . . . upon subsidiary issues constructed from Azzarello, such as the availability of negligence-derived defenses.”  Tincher, 2014 WL 6474923, at *71.  Tincherdid not decide these issues, but its rejection of Azzarello, and its discussion of the “indicia of negligence” in the “typical” case, leave little doubt that most product liability cases, those prior negligence-based exclusions are an example of a “rule outrunning the reason.”  That’s a second big loss for the plaintiffs’ side.

But you don’t just have to take our word for it, because the plaintiffs’ side is already on record, before Tincher was decided, that the overruling of Azzarello would be a disaster for them, whether or not the Third Restatement was also adopted.  After the oral argument in Tincher, the leading plaintiff-side amicus, the Pennsylvania Association for Justice (“PAJ”), filed an extraordinary application, demanding reargument, because it believed counsel for the plaintiff in the case was not defendingAzzarello sufficiently.  PAJ’s application was very interesting reading at the time.  It’s just as interesting now, but for different reasons.

Why would PAJ be worried about Azzarello?  In PAJ’s own words, in Tincher:

[T]he underlying claim resulting in a plaintiff’s verdict involved subrogation by plaintiffs’ insurer.

The impact of a court decision reversing Azzarelloor abandoning the Restatement (Second) Section 402A is so significant that it should not be determined based upon a subrogation case essentially “owned” by on insurance company and argued by one who is not committed to consumer protection policies.

AAJ Application ¶¶2, 19.  Spin might fool a reporters who lack much of a legal background, but it can’t fool us.  We have the proof in black and white.

Thus, the initial claim, made to a 360 reporter by the plaintiffs’ counsel in Tincher that the decision was supposedly a “resounding victory for the plaintiffs’ bar,” should be taken with a large grain of salt, because – as PAJ had already pointed out – he’s not really a plaintiffs’ lawyer at all, but an insurance subrogation lawyer. For someone playing both sides of the street, Tincher may well count as a “victory.”

And there’s a lot more.  That PAJ application makes clear that, not just the adoption of the Third Restatement, but the overruling of Azzarello itself, would be a “dramatic shift” and “inconsistent” with the interests of future plaintiffs.  Once again, we’ll let PAJ’s words speak for themselves:

The brief filed by [the Tinchers] was consistent with the discussions held with counsel for Amicus Curiae [PAJ]; it never advocates overruling Azzarello or changing the function of the judge and jury.  The brief merely mentions in passing, in a footnote to the section arguing for prospective application of any change to the law of strict liability, that the court has the option of overruling Azzarello but rejecting the Restatement Third analysis.

It is the understanding of counsel for the Amicus Curiae that, contrary to the assurances provided to the undersigned, at oral argument counsel for the Tinchers agreed that Azzarello should be overruled.

This has been confirmed by direct conversation with counsel for the Tinchers. After the argument that occurred on October 15, 2013, [Tinchers’ counsel] explained that he believed the so-called “Wade factors” considered by the court under current law should instead be considered by the jury and that the Azzarello formulation as to the role of the jury was incorrect.

The position urged at argument by counsel for the Tinchers represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by Amicus Curiae PAJ.

[Tincher’s counsel] apparently believed that it was necessary to argue for the overturning of Azzarelloprospectively while retaining the framework of the Restatement (Second ) of Torts Section 402A in order to protect his clients’ interest in preserving the jury verdict in the instant case.  A broader interest exists, however, on behalf of injured consumers in product liability cases, which deserves vigorous representation before this Court.

PAJ Application ¶¶11-15 (emphasis added).  Notice how PAJ’s objections are almost all about Azzarello?  So do we.

Based on these allegations, PAJ requested what it admitted was unprecedented relief – that Tincher be reargued with PAJ taking over the arguing the plaintiffs’ position.  Id. ¶17.  What was that position?  PAJ’s primary position was clearly that Azzarello be retained, while the Third Restatement was secondary.  To PAJ, the Tinchers’ concession about “overturning” Azzarello “while retaining the framework of the Restatement (Second ) of Torts Section 402A,” id. ¶15, was so inadequate that it motivated PAJ to seek the unprecedented relief (for an amicus) of reargument.  Winners don’t do that.

The PAJ application represents what real plaintiffs’ lawyers in Pennsylvania thought at the time of the prospect that Azzarellowould be overruled.  Whatever they’re now saying to the contrary is spin − putting lipstick on something that, from their perspective, is very much porcine in its result.  OverrulingAzzarello is “a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by Amicus Curiae PAJ.”  PAJ Application ¶14.

In other words, they lost when Azzarello was overruled.  The next time the other side tries to ignore Azzarello’s demise and spinTincher as a win, an appropriate response would be along the lines of, “Aside from that, Mrs. Lincoln, how did you like the play?”

Finally, one of the best plaintiff-side bloggers around, Max Kennerly at the Litigation and Trial Blog, took some shots at our analysis of Tincher.  One of them criticized our conclusion, which we repeated in shortened fashion above, that Tincher sounds the death knell of exclusions of “negligence” evidence in strict liability.  He calls it “wishful thinking,” without quoting anything from Tincher to support a contrary analysis.  All Max can say is that Tincher didn’t decide anything, which was true (neither didAzzarello decide the contrary position).  As discussed above, though, there’s plenty in Tincher to support the demise of evidentiary exclusions based on a negligence/strict liability dichotomy, and little to support their continuing viability.  If there were, Max would surely have quoted it, since he’s a very competent lawyer.

We also find this in Max’s Tincher post:  “Parenthetically, the Drug and Device Law folks also wrongly claim Tincher contains an ‘express rejection of absolute liability’ on page 85.  I read that page up and down, it says nothing of the sort.”

There are none so blind as those who refuse to see.  Here’s what Tincher said:

A broad reading of this policy statement [in Miller v. Preitz, a case discussed in the previous paragraph] suggests that liability would attachabsolutely, once the consumer or user suffers harm; indeed, early proponents supported such an application.  [citation omitted]  But, experience has taught otherwise and, in modern application, strict liability doctrine is a substantially narrower theory.  [citation omitted].

Tincher, 2014 WL 6474923, at *44 (emphasis added).  Plainly, that’s a rejection of absolute liability under “modern” strict liability.  The language Max quotes as supposedly contrary deals with “disputes that are absent from the decisional law” – meaning that there are no actual precedents for absolute strict liability. Id. at *66.  There’s a cite that Max omits following his quote. Here’s what Tincher cited:

See Henderson, 83 Cornell L. Rev. at 901 (“Some courts, in dicta, hold out the possibility that the risk-utility imbalance might be so egregious that the product should not be marketed at all.  Actual holdings to this effect, however, are non-existent.”)

Tincher, 2014 WL 6474923, at *66 (footnote omitted) (emphasis added).  Admittedly “non-existent” precedent is pretty faint support.  Moreover, Max’s language was actually in a paragraph discussing manufacturing defects, not design defects, as both the omitted footnote and language earlier in the same paragraph make clear.

So, for the reasons already stated, we’ll agree to disagree with Max as well when he contorts Tincher into a “win” for his side. He’s grasping at some mighty fine straws that, as we believe we’ve just shown, don’t support his position at all.  However, we do agree with Max about one thing – “Much remains to be done, however, as the contours of this new structure are chiseled out on the facts of future cases.”