The Pennsylvania Supreme Court recently granted allocatur in the matter of Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021), in which the Superior Court affirmed the trial court’s exclusion of evidence of government and industry standards at trial in a strict product liability action. In so doing, it noted that while the Supreme Court’s 2014 decision in Tincher v. Omega Flex, Inc., 104 A3d 328 (Pa. 2014), overruled Pennsylvania’s longstanding separation of negligence and strict liability standards in product liability cases, that decision did not “explicitly nor implicitly overrule[] the exclusion of industry standards in a products liability case.”

As the Sullivan court discussed, the Tincher Court held that “strict liability … overlaps in effect with the theories of negligence and breach of warranty.” Of import, it was that long-standing separation of negligence and strict liability that provided the basis for excluding government and strict liability evidence in product liability cases, as first set forth in Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987). Notwithstanding the Supreme Court’s landmark decision in Tincher, however, the so-called Lewis-exclusion, which (1) based its reasoning on cases since overruled by Tincher, and (2) prohibits the introduction of government and industry standard, has continued its Ronin-esque existence in the post-Tincher world. Whether such evidence is admissible has confounded the product liability bar, in part because it is unclear what evidence can be used to satisfy Tincher’s composite “risk/utility” and “consumer expectations” test.

The Pennsylvania Superior Court has visited this issue several times, generally concluding that government and strict liability evidence is inadmissible in product liability cases, with some bold opinions suggesting a Plaintiff may open the door to such evidence, for better or worse. See Dunlap v. Federal Signal Corporation, 194 A.3d 1067 (Pa. Super 2018). Regardless of how the Supreme Court ultimately decides this issue in Sullivan, product liability litigants navigating Pennsylvania law soon will benefit from the additional clarity that that decision will provide. The strategic options for defense of aviation and product liability cases in Pennsylvania will change, and defendants’ toolboxes will be expanded, should the Court permit the introduction of evidence that a product complied with industry and government standards to negate product liability claims.