"TINCHER 2!" By Bill Ricci, Esquire

On February 16, 2018, a unanimous 3-judge panel of the Pennsylvania Superior Court in Tincher v. Omega Flex, Inc., ___ A.3d ___, No. 1285 EDA 2016 (Pa. Super. Feb. 16, 2018) (“Tincher II”), held, following the Pennsylvania Supreme Court’s prior landmark ruling in the same case, Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) (“Tincher I”), that in a strict product liability case it is “fundamental error” to use an “Azzarello” jury charge employing the now-overruled “any element” defect test and informing the jury that the defendant manufacturer was the “guarantor” of product safety.

The procedural history that led to the most recent Tincher decision is nothing short of fascinating. In a nutshell, Omega Flex appealed from the judgment entered in favor of the Tinchers following a jury trial, and the denial of its post-trial motions. In this most recent appeal, Omega Flex claimed it was entitled to a new trial because the Supreme Court determined that the trial court’s jury instruction contained a fundamental misstatement of the governing law. Plaintiffs essentially countered that the voluminous evidence adduced at trial would have led a jury to the same conclusion of defect, regardless of the Court’s charge on the law. The Superior Court did not agree with the plaintiffs, and instead vacated the judgment, reversed the order of the trial court denying post-trial relief, and remanded the case for a new trial. “[T]he trial court had no authority to deny a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.” Slip op. at 27.

According to the Superior Court panel, “there is no question” that the Azzarello charge given during the trial was “incorrect:” 

The charge [that was given] contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and a declaration that a manufacturer “is really a guarantor of [a product’s] safety . . . “

Id. at 18.  “There is no question that the error was fundamental to the case.  It dealt with the principal issue disputed by the parties − whether there was a defect.” Id. at 25.

An Azzarello “any element / guarantor” charge “fail[s] to conform to the applicable law, as stated in Tincher,” Id. at 20. “The trial court gave a charge under law that the Supreme Court has explicitly overruled in this very case.  Such a charge would appear to be a paradigm example of fundamental error.” Id. at 23. 

The Superior Court’s Tincher II opinion culminated in the following critical statement:                 

In effect, the trial court seemed to conclude that because it believes there is sufficient evidence in the record to support a verdict for plaintiffs under the new Tincher standards, a new trial is not required. But, as the Supreme Court specifically instructed in Tincher itself, that is not a proper basis for decision. The Tinchers asked the Supreme Court to forgo resolving the issues presented to it because, they said, there was so much evidence supporting liability that any change in the law would not change the outcome. The Supreme Court rejected that suggestion, explaining that a verdict has meaning only in light of the charge under which it was delivered: ‘a trial court’s charge defines the legal universe in which a jury operates for purposes of the verdict.  . . . The bare litmus of sufficiency review cannot correct the fundamental error in the instructions to lay jurors concerning just what it is they are deciding.’ The trial court’s charge based on law overruled in this case was fundamental error. Omega Flex therefore is entitled to a new trial.

Id. at 29-30.

Like the Superior Court in Tincher II, both the Pennsylvania Defense Institute and the Philadelphia Association of Defense Counsel have steadfastly maintained that, after Tincher I, giving a strict liability jury charge using the principle “any element / guarantor” elements of the overruled Azzarello charge is reversible error.

In June 2016 - for reasons known only to the drafters - the Pennsylvania Bar Institute published a series of new, post-Tincher I Suggested Standard Jury Instructions that retained most of the Azzarello language.”  For that and other important reasons, in September 2017 the Pennsylvania Defense Institute (with the help of a panel of some of the most experienced and knowledgeable product liability practitioners in the state, including members of the Philadelphia Association of Defense Counsel) published alternative Suggested Jury Instructions for use in Product Liability cases that faithfully follow Tincher I. Of importance, the PDI Tincher I-based alternative Suggested Jury Instructions were endorsed by the Philadelphia Association of Defense Counsel. These instructions were recently given to a jury by a Philadelphia trial judge.

Clearly, the Pennsylvania Bar Institute’s Suggested Standard Jury Instructions are now expressly disapproved in Tincher II, on the critical definition of “defect.” Tincher II is controlling precedent that the PDI / PADC view is correct, and that using the PBI definition of defect is “fundamental” – and thus reversible – error.  Equally clearly, the drafters of the PBI-published Suggested Standard Jury Instructions “undervalue[d] the importance of the Supreme Court’s decision” in Tincher I. Tincher II, slip op. at 27.

Finally, and in sum, Tincher II stands for the following propositions:

  • if properly preserved, Tincher I is retroactively applied to cases previously filed and tried;
  • in a post-Tincher product liability, it is fundamental and reversible error for a trial court to give an Azzarello “any element / guarantor” jury charge; and
  • Tincher I requires that the product be “unreasonably dangerous” and the jury must be instructed accordingly.