The Pennsylvania Supreme Court recently allowed an appeal in two consolidated asbestos personal injury lawsuits on the limited issue of whether “a defendant in a strict-liability claim based on a failure-to-warn theory has the right to have a jury determine whether its product was ‘unreasonably dangerous.’” Amato v. Bell & Gossett, 448 EAL 2015 (Feb. 1, 2016); Vinciguerra v. Bayer Cropscience, Inc., 447 EAL 2015 (Pa. Feb. 1, 2016).

This case is particularly significant because it will be the first occasion that the Pennsylvania Supreme Court builds on its landmark decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).

Prior to Tincher, there was a firm separation between strict liability and negligence claims, and negligence concepts such as the inherent risks of a product versus its utility were not presented to a jury. Rather, the trial court would examine those considerations and determine whether a product was “unreasonably dangerous” as a matter of law. The jury was simply asked to decide whether the product was “defective,” i.e. “whether the product lacks any element necessary to make it safe for its intended use.” Tincher held that “whether a product is defective depends upon whether that product is ‘unreasonably dangerous’” and that determination is a question of fact for the jury.

The Amato/Vinciguerra case was tried before the Tincher decision came down. However, Crane had anticipated a change in the law and submitted a proposed failure-to-warn jury instruction incorporating considerations of foreseeability and reasonableness. The trial court declined to issue the proposed jury instruction, and the jury returned multimillion-dollar verdicts in favor of the plaintiffs.

Amato/Vinciguerra presents an opportunity for the court to address several issues raised by Tincher. First,Tincher, which involved a design defect claim, did not address how its decision applies to other strict products liability claims, i.e. manufacturing defect or failure-to-warn claims. The Amato/Vinciguerra case is a failure-to-warn case and the court should clarify whether one of its holdings – that a jury should determine whether a product is “unreasonably dangerous” – applies to failure-to-warn cases.

Second, Tincher held that design defect claims may proceed under either the risk-utility test or the consumer expectations test, so Amato/Vinciguerra presents a chance for the court to address whether these two tests will apply to failure-to-warn cases.

Third, the court might consider whether under Tincher, juries are permitted to consider “state-of-the-art” evidence in determining the reasonableness of a manufacturer’s failure to warn. Such “state-of-the-art evidence,” or evidence of the relevant industry standards and the science known during the time period in question, is significant in asbestos cases where manufacturers are often found liable for failing to warn about the dangers of asbestos during a time period when the dangers of asbestos were not known. This type of evidence would certainly be probative of the reasonableness of a manufacturer’s failure to warn and relevant to the jury’s determination of whether the lack of warning made the product “unreasonably dangerous.”