[J-1-2023]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
MICHAEL AND MELISSA SULLIVAN, H/W : No. 18 EAP 2022
:
: Appeal from the Judgment of
v. : Superior Court entered on April 15,
: 2021 at No. 3086 EDA 2019
: (reargument denied June 23, 2021),
WERNER COMPANY AND LOWE'S : affirming the Judgment entered on
COMPANIES, INC., AND MIDDLETOWN : November 19, 2019 in the Court of
TOWNSHIP LOWE'S STORE #1572 : Common Pleas, Philadelphia
: County, Civil Division at No.
: 161003086.
APPEAL OF: WERNER COMPANY AND :
LOWE'S COMPANIES, INC. : ARGUED: March 8, 2023
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
JUSTICE MUNDY DECIDED: December 22, 2023
We granted allowance of appeal to consider whether evidence of a product’s
compliance with industry and governmental safety standards is admissible in products
liability cases following this Court’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328
(Pa. 2014). Because we conclude compliance evidence remains inadmissible, we affirm
the order of the Superior Court.
I. LEGAL BACKGROUND
As legal background, Pennsylvania has adopted Section 402A of the Second
Restatement of Torts as the law of strict products liability. Webb v. Zern, 220 A.2d 853,
854 (Pa. 1966). Section 402A provides:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such
a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the condition
in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product
from or entered into any contractual relation with the
seller.
RESTATEMENT (SECOND) OF TORTS § 402A.
In Tincher, this Court overruled Azzarello v. Black Brothers Co., Inc., 391 A.2d
1020 (Pa. 1978). Azzarello and its progeny had held that Section 402A contained
negligence concepts, such as “defective condition” and “unreasonably dangerous,” that
had no place in strict products liability jury instructions because they confused the jury.
Instead, Azzarello concluded the trial court had to decide, as a matter of law, whether
“recovery would be justified; and only after this judicial determination [was] made [was]
the cause [of action] submitted to the jury to determine whether the facts of the case
support[ed] the averments of the complaint.” Azzarello, 391 A.2d at 1026. In Tincher,
this Court reaffirmed that Pennsylvania was a “Second Restatement jurisdiction,” 104
A.3d at 399, and overruled Azzarello’s narrow construction of Section 402A that
prevented the jury from considering negligence-related rhetoric and concepts, id. at 376.
The Tincher Court explained that a seller of a product has a duty to provide a
product that is free from “a defective condition unreasonably dangerous to the consumer
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or [the consumer’s] property.” Id. at 383 (citing RESTATEMENT (SECOND) OF TORTS
§ 402A(1)) (brackets in original). To prove a breach of this duty, “a plaintiff must prove
that a seller (manufacturer or distributor) placed on the market a product in a ‘defective
condition.’” Id. at 384. The Tincher Court then analyzed the evidence necessary to prove
a defective condition in a design defect case, holding “the cause of action in strict products
liability requires proof, in the alternative, either of the ordinary consumer’s expectations
or of the risk-utility of a product.” Id. at 401. Under the consumer expectations test, “the
product is in a defective condition if the danger is unknowable and unacceptable to the
average or ordinary consumer.” Id. at 387. Under the risk-utility test, “a product is in a
defective condition if a ‘reasonable person’ would conclude that the probability and
seriousness of harm caused by the product outweigh the burden or costs of taking
precautions.” Id. at 389. The Court stated that a plaintiff may proceed under either theory,
or both theories in the alternative. Id. at 408.
Significant to this opinion, this Court had concluded, when Azzarello was the law,
that evidence of industry and governmental standards was not admissible in strict
products liability cases because such evidence went to the reasonableness of the
manufacturer’s design choice, which improperly injected negligence concepts such as
due care into strict liability cases and misled the jury from the product’s design. Lewis v.
Coffing Hoist Div., Duff-Norton Co., Inc., 528 A.2d 590, 594 (Pa. 1987); see also Gaudio
v. Ford Motor Co., 976 A.2d 524, 544 (Pa. Super. 2009) (listing cases extending Lewis to
evidence of compliance with government standards). The Tincher Court discussed
Lewis’s conception of strict liability and its conclusion that compliance evidence was not
relevant to the condition of the product and therefore inadmissible in strict liability actions.
Tincher, 104 A.3d at 368. However, Tincher did not overrule Lewis or decide whether
evidence of compliance with industry and government standards was admissible in a
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design defect case. Id. at 410 (stating “[t]his [o]pinion does not purport to either approve
or disapprove prior decisional law . . . relating to foundational or subsidiary considerations
and consequences of our explicit holdings.”). Instead, the Tincher Court recognized:
[T]he decision to overrule Azzarello and articulate a standard
of proof premised upon alternative tests in relation to claims
of a product defective in design may have an impact upon
other foundational issues regarding manufacturing or warning
claims, and upon subsidiary issues constructed from
Azzarello, such as the availability of negligence-derived
defenses . . . . These considerations and effects are outside
the scope of the facts of this dispute[.]
Id. at 409 (citation omitted). 1 Additionally, the Court noted that the “common law
regarding these considerations should develop within the proper factual contexts against
the background of targeted advocacy.” Id. at 410.
Following Tincher, our Court has not addressed the admissibility of evidence of
industry or government standards. However, the Superior Court, in Webb v. Volvo Cars
of North America, 148 A.3d 473 (Pa. Super. 2016), concluded “the overruling of Azzarello
does not provide this panel with a sufficient basis for disregarding the evidentiary rule
expressed in Lewis and Gaudio.” 148 A.3d at 483. Specifically, the Webb Court was not
persuaded that Tincher undermined Lewis’s rationale that a design defect could be
widespread in an industry. Id. Additionally, the Superior Court noted that Webb was not
a post-Tincher case because it was tried under Azzarello and pending on appeal when
Tincher was decided, allowing the parties to brief and argue the effects of Tincher. Id.
Because of the procedural posture of the case, the Superior Court opined that “the
continued vitality of the prohibition on government and industry standards evidence is a
1 As alluded to, “[t]here are three different types of defective conditions that can give rise
to a strict liability claim: design defect, manufacturing defect, and failure-to-warn defect.”
Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995).
[J-1-2023] - 4
question best addressed in a post-Tincher case.” Id. This Court denied allocatur in Webb.
Webb v. Volvo Cars of N. Am., LLC, 168 A.2d 1294 (Pa. 2017).
II. FACTS AND PROCEDURAL HISTORY
Against this legal background, the relevant factual and procedural history of this
case is as follows. Appellee Michael Sullivan was seriously injured at a jobsite when the
platform of a six-foot tall mobile scaffold collapsed, causing him to fall through the scaffold
to the ground. The platform of the scaffold was secured to the frame by two spring-loaded
deck pins that the user rotated to cover the platform after it was seated in the scaffold.
Sullivan brought a strict liability action against Appellants Werner Company (Werner) and
Lowe’s Companies, Inc. (Lowe’s), alleging that the mobile scaffold system was defectively
designed because it was possible for a user to inadvertently rotate the deck pins off the
platform during normal use. 2
Before trial, Sullivan filed a motion in limine to preclude Appellants from admitting
into evidence any industry or government standards. Mot. in Lim., 4/11/19 (R.R. at 105a).
The motion noted that Appellants’ expert, Erick Knox, Ph.D, P.E., submitted a report
suggesting the scaffold met federal Occupational Safety and Health Administration
(OSHA) regulations and American National Standards Institute (ANSI) standards.
Sullivan attached as an exhibit Knox’s expert report, which stated that the product’s
“spring loaded inverted ‘L’ shaped pin is the design of choice by most manufacturers,”
and “[t]his design is compliant with ANSI and OSHA safety standards and is a reasonably
safe design for the function of holding a properly seated platform in position.” Id. at Ex.
A, ESi Investigative Report, 11/13/18 (R.R. at 145a); see also id. (R.R. at 148a) (opining
the product met ANSI A10.8-2011 Scaffold Safety Requirements and OSHA 1926
2 Sullivan also brought a negligence claim, which he withdrew at trial.
N.T., 4/29/19, at
120 (R.R. at 411a). His wife also asserted a consortium claim that did not succeed at
trial. N.T., 5/10/19, at 7 (R.R. at 2154a).
[J-1-2023] - 5
Subpart L). Sullivan argued that such evidence was inadmissible under Pennsylvania
law, citing to Lewis, Normann v. Johns-Manville Corp., 593 A.2d 890, 893 (Pa. Super.
1991), and Carrecter v. Colson Equipment Co., 499 A.2d 326, 330 (Pa. Super. 1985).
Mot. in Lim., 4/11/19 (R.R. at 107a). Further, Sullivan maintained that Tincher did not
affect this admissibility of evidence standard, as the Superior Court affirmed in Webb. Id.
In response, Appellants argued that they would provide fact witnesses and expert
testimony to establish the scaffold met OSHA and ANSI standards, which they contended
was admissible post-Tincher because such evidence was “relevant and probative of the
issue of product defect; whether the manufacturer acted reasonably; and/or whether the
product is unreasonably dangerous.” Resp. in Opp’n to Sullivan’s Mot. in Lim., 4/22/19
(R.R. at 162a). After hearing oral argument on the motion during trial, the trial court
granted the motion and precluded any evidence of industry and government standards
by deferring to the Webb decision. N.T., 4/30/19, at 4-10 (R.R. at 547-53a) (noting “I
wouldn’t be comfortable either way with this one, I’m going to grant the motion to preclude
talk about industry standards. The [S]uperior [C]ourt has the final word on it”).
Because Sullivan attempted to prove the scaffold was defective through the risk-
utility theory, the trial court instructed the jury as follows:
Under the risk utility test[,] a product is defective if a
reasonable person would conclude that the possibility and
seriousness of harm outweighed the burden or cost to the
manufacturer of making the product safe.
To decide whether the product is defective under this
test, you should consider the following factors: The
usefulness and desirability of the product, its utility to the user
and to the public as a whole, the safety aspects of the product,
the likelihood that it will cause injury, and the probable
seriousness of the injury, the availability of a substitute
product which would meet the same need and not be as
unsafe, the manufacturer’s ability to eliminate the unsafe
character of the product without impairing its usefulness or
making it too expensive to maintain its utility, the user’s ability
[J-1-2023] - 6
to avoid danger by the exercise of care in the use of the
product, the user’s anticipated awareness of the dangers
inherent in the product and their availability, because of the
general public knowledge of the obvious condition of the
product or the existence of suitable warnings or instructions.
You may not consider any negligence, that is lack of
due care, by Plaintiff, Michael Sullivan, when performing this
test for defectiveness. Rather, you must consider what
product a reasonable manufacturer would design, given all
the factors listed above.
N.T., 5/9/19, at 113-14 (R.R. at 1181a-82a).
During its deliberations, the jury asked the trial court “[d]oes OSHA inspect every
product that is put on the market, especially those with patent?” N.T., 5/9/19, at 142 (R.R.
at 2117a). The trial court responded that it could not answer that question and instructed
the jury not to consider OSHA in any way during its deliberations. Id. Additionally, the
jury asked to physically inspect an exemplar scaffold that was introduced as evidence
during trial. Id. at 143 (R.R. at 2118a). The trial court permitted the jurors to examine it
with court staff present, outside the presence of the attorneys and the trial judge, and
defense counsel covered the ANSI and OSHA certification stickers with exhibit stickers
so the jury would not see them during its inspection. Id. at 148-49 (R.R. at 2123-24a).
The next day, the jury also asked to see three other scaffolds that were not involved in
the accident, which the trial court permitted after counsel obscured the certification
stickers. N.T., 5/10/19, at 4-5 (R.R. at 2153-54a). Ultimately, the jury found New Werner
and Lowe’s liable on the design defect claim and awarded Sullivan $2.5 million in
damages. Id. at 7 (R.R. at 2154a).
Following trial, Appellants filed a motion for post-trial relief, arguing in part that they
were entitled to a new trial because “[t]he court improperly precluded defendant from
presenting evidence that its product complied with relevant industry standards and OSHA
regulations, a significant issue raised by the jury at the outset of their deliberations.” Mot.
[J-1-2023] - 7
for Post-Trial Relief, 5/20/19, at 14 (R.R. at 232a) (emphasis in original). In his response
to the post-trial motion, Sullivan relied on Webb, which he asserted “affirmed that, post-
Tincher, evidence of compliance with government and industry standards is still
inadmissible.” Resp. in Opp’n to Mot. for Post-Trial Relief, 5/30/19, at 29 (R.R. at 269a).
The trial court denied Appellants’ motion for post-trial relief. Order, 9/12/19 (R.R.
at 291a). In its opinion, the trial court explained it was persuaded by the Superior Court’s
analysis in Webb concluding there was no justification post-Tincher to abandon the
prohibition on evidence of government or industry standards. Trial Ct. Op., 8/3/20, at 16.
Appellants appealed to the Superior Court.
In a unanimous published opinion, the Superior Court affirmed the trial court.
Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021). The Superior Court provided
three reasons that it found the trial court did not abuse its discretion in excluding evidence
of the manufacturer’s compliance with industry and government standards. First,
following Tincher, the court recognized Section 402A of the Second Restatement remains
the standard which Pennsylvania courts use to determine whether a product is
“unreasonably dangerous,” and Section 402A provides that a product that is designed
and manufactured with “all possible care” can still be defective. Sullivan, 253 A.3d at 746.
Second, the Superior Court acknowledged that Tincher’s overruling of Azzarello cast
some doubt on Lewis and Gaudio. Id. However, the court noted Tincher stated that its
impact on subsidiary issues, such as this one, should develop as common law within the
proper factual contexts, and no Pennsylvania court has held that Tincher implicitly
overruled Lewis or Gaudio. Id. Third, the Superior Court observed that a manufacturer’s
compliance with industry or government standards goes to whether it exercised due care
but not to whether it defectively designed the product. Id. at 747. The court continued
that under Section 402A, “it is irrelevant if a product is designed with all possible care,
[J-1-2023] - 8
including whether it has complied with all industry and governmental standards, because
the manufacturer is still liable if the product is unsafe.” Id. Finding that Tincher did not
explicitly or implicitly overrule pre-existing precedent excluding compliance evidence and
that Section 402A provides a reason to exclude such evidence, the Superior Court
concluded the trial court did not abuse its discretion in excluding the evidence in this case.
Id. at 747-48.
III. ISSUE AND STANDARD OF REVIEW
This Court granted Appellants’ petition for allowance of appeal to consider the
following issue:
Was it an error of law, under the product liability principles this
Court established in Tincher v. Omega Flex, Inc., 104 A.3d
328 (Pa. 2014), to prevent the jury from considering the
product’s compliance with pertinent industry and
governmental safety standards, where this exclusion of
evidence:
(1) was contrary to Tincher’s expressed intent to provide
juries with greater, rather than less, ability to decide if
an unreasonably dangerous defect exists in a product;
(2) was contrary to Tincher’s recognition that strict liability
and negligence substantially overlap in product liability
cases, particularly as to the “risk/utility” defect theory
plaintiffs pursued in this case; and
(3) would once again leave Pennsylvania product liability
law in a distinct minority position, concerning
admissibility of compliance evidence.
Sullivan v. Werner Co., 279 A.3d 1183 (Pa. 2022) (per curiam).
This Court generally reviews a trial court’s evidentiary rulings, including the
decision to grant or deny a motion in limine, for an abuse of discretion. “An abuse of
discretion may not be found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest unreasonableness, or partiality,
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prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.”
Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005) (quoting Grady v. Frito-Lay,
Inc., 839 A.2d 1038, 1046 (Pa. 2003)). Further, a decision that overrides or misapplies
the law constitutes an abuse of discretion. Commonwealth v. Randolph, 873 A.2d 1277,
1281 (Pa. 2005) (quoting Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa. 2000)).
However, we exercise plenary review when a trial court’s evidentiary ruling turns on a
question of law. Schroeder v. Jaquiss, 861 A.2d 885, 889 n.8 (Pa. 2004). Here, the issue
turns on a question of law, i.e., the admissibility of evidence of compliance with
governmental or industry safety standards in strict liability design defect cases.
IV. PARTIES’ ARGUMENTS
Appellants argue that compliance evidence should be admissible, when relevant,
following Tincher and the adoption of Pennsylvania Rules of Evidence 401 and 402. They
emphasize Tincher reshaped products liability law by overruling Azzarello, removing the
absolute separation of negligence and strict liability, returning to the jury Section 402A’s
“unreasonably dangerous” element, rejecting the notion that product suppliers are
“guarantors” of the product’s safety, and endorsing a composite test incorporating
consumer expectations and risk-utility. Appellants’ Brief at 18.
Because Tincher returned the unreasonably dangerous inquiry to the jury,
Appellants contend we should reinstate “the pro-admissibility evidentiary principles that
existed pre-Azzarello.” Id. at 19. Before Azzarello, Appellants explain, compliance
evidence was admissible as relevant to proving product defect. Id. at 19-20 (discussing
Forry v. Gulf Oil Corp., 237 A.2d 593 (Pa. 1968)). Appellants also note that this Court
held evidence of a manufacturer’s customary practice was admissible as tending to show
that the product was not defective or unreasonably dangerous when it left the
manufacturer’s control. Id. at 20 (citing Bialek v. Pittsburgh Brewing Co., 242 A.2d 231,
[J-1-2023] - 10
235 (Pa. 1968). The evidence was admissible even though it also tended to show due
care because “[i]t is elementary that evidence admissible for one purpose is not rendered
inadmissible because it would be inadmissible for another purpose and the jury might
improperly consider it for that other purpose.” Id. at 20 (quoting Bialek, 242 A.2d at 235).
Further, Appellants clarify that courts held either party could introduce compliance
evidence on the question of whether a product was unreasonably dangerous under
Section 402A. Appellants’ Brief at 21 (citing Berkebile v. Brantly Helicopter Corp., 281
A.2d 707, 710 (Pa. Super. 1971) (permitting evidence of the seller’s compliance with
Federal Aviation Agency regulations to show the product was not unreasonably
dangerous)). Appellants urge us to return to this pre-Azzarello common law holding that
compliance evidence is admissible.
To bolster their pre-Azzarello common law argument, Appellants assert that
Pennsylvania Rules of Evidence 401 and 402, adopted in 1998, endorse a liberal
approach to relevancy, defining relevant material as evidence that “has any tendency to
make a fact more or less probable than it would be without the evidence.” Id. at 22
(quoting Pa.R.E. 401(a)). The combination of Tincher and the Rules of Evidence, in
Appellants’ view, favors the admission of compliance evidence, which they claim goes to
the “material fact” in strict liability of the existence of a “defective condition unreasonably
dangerous.” Id. (quoting Tincher, 104 A.3d at 400).
Appellants argue that Tincher’s overruling of Azzarello must extend to Lewis. Id.
at 24. They contend that Lewis’s per se exclusion of compliance evidence was based on
Azzarello’s conception of strict liability in which the seller was the guarantor of product
safety, and the jury did not decide whether the product was unreasonably dangerous. Id.
at 25. Because Tincher overruled Azzarello on these points, Appellants assert “Tincher
demolished Lewis’ Azzarello-based reasoning, leaving nothing standing.” Id. at 26.
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Moreover, Appellants criticize Lewis for sidestepping a relevancy analysis and instead
applying Azzarello. Id. at 30. They also note that “Lewis recognized that, in other
jurisdictions applying the same defect standards that Tincher now follows, standards
compliance evidence is ‘relevant to the question of whether a product design is
‘unreasonably dangerous[.]’’” Id. at 31 (quoting Lewis, 528 A.2d at 593-94). Accordingly,
as the Lewis per se exclusionary rule is inconsistent with Tincher and the Rules of
Evidence, Appellants urge us to discard Lewis in favor of a relevance-based rule in which
compliance evidence is generally admissible. Id. at 33-34. 3
To support their relevance-based approach, Appellants invoke Tincher’s
composite approach to product defect, employing both the consumer expectations and
risk-utility tests. Id. at 34. They argue that compliance evidence is relevant in this
composite framework. Id. at 37. Seizing on Tincher’s description of the risk-utility test as
reflecting the “negligence roots of strict liability” and centered on a “post hoc” analysis of
“whether a manufacturer’s conduct in manufacturing or designing a product was
reasonable,” Appellants maintain the risk-utility test “captures ‘traditional negligence’
principles, such as the reasonable foreseeability of harm caused by the defendant’s
action.” Id. at 38 (quoting Tincher, 104 A.3d at 404-05). In Appellants’ view, industry
standards and governmental regulations contribute to the condition of the product. Id. 4
3 Amici curiae Pennsylvania Coalition for Civil Justice Reform, Pennsylvania
Manufacturers’ Association, and American Property Casualty Insurance Association
argue that we should overrule Lewis and eliminate the per se exclusion of compliance
evidence in design defect cases. Amici Br. at 5. Amici view Lewis’s bright-line rule as
incompatible with Tincher’s holding that the consumer expectation and risk/utility tests
apply in strict liability. Id. at 9. Further, Amici assert that plaintiffs pursuing a design
defect case are challenging the choices in the manufacturer’s design. Id. at 11. Depriving
the jury of compliance evidence, in Amici’s view, forces the jury to decide whether the
design was defective in a vacuum. Id. at 12.
4 Amicus curiae Philadelphia Association of Defense Counsel (PADC) maintains
compliance evidence is relevant in design defect cases because government and industry
(continued…)
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Appellants claim that compliance evidence is relevant to juries deciding the risk/utility
question: “[w]ithout this highly probative information, a jury of laypersons is forced to rely
solely on the often limited opinions of the parties’ paid litigation experts, or else to make
uninformed guesses about how a manufacturer should appropriately balance safety,
feasibility, and cost.” Id. at 39. 5 Appellants highlight that this case illustrates that point
because the jury during its deliberations asked whether OSHA inspects every product
that is put on the market. Id. at 40.
Additionally, Appellants discuss persuasive authority supporting their position.
Appellants state that “[a]t least 45 states and the District of Columbia consider compliance
evidence admissible.” Id. at 41-42 (citing Daller & Daller, “Product Liability Desk
Reference: A Fifty-State Compendium” (Wolters Kluwer, 2021 mid-year); 1 Owen & Davis
on Products Liability § 6:9, at 578 and 591 (4th ed. Supp. 2021)). 6 Appellants emphasize
standards are the starting point for the design of any product, and compliance evidence
relates to several elements of the risk/utility test and the consumer’s expectations, such
as “acknowledged risks, the product’s utility, and the feasibility or wisdom of alternative
designs.” PADC’s Amicus Br. at 23.
Likewise, Amicus curiae the U.S. Chamber of Commerce (USCC) argues that
compliance evidence is relevant because manufacturers rely on industry and government
standards as guideposts when designing a product. USCC’s Amicus Br. at 6. Further,
Amicus suggest compliance should be a defense to products liability claims to incentivize
manufacturers to comply with safety standards. Id. at 8.
5 Amicus curiae International Association of Defense Counsel (IADC) argue that
compliance evidence can be relevant to the risk/utility factors and to the credibility of
experts, but it should not be categorically admissible or inadmissible. IADC’s Amicus Br.
at 3. Instead, if it is relevant, it should be subject to the ordinary rules of evidence,
including Rule 403’s exclusion of evidence when certain dangers outweigh the probative
value. Id. at 10. Here, it was relevant to several risk/utility factors and should have been
admitted in IADC’s view. Id. at 5-7.
6 Amicus curiae The Product Liability Advisory Council (PLAC) offers a chart detailing the
case law of other jurisdictions, showing most jurisdictions have held compliance evidence
is admissible. PLAC’s Amicus Br. at 3-12. PLAC notes these decisions are “rooted in
the fundamental norms of faith in the jury system and commitment to maximum
transparency in the factfinding process.” Id. at 13.
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that the jurisdictions from which Tincher derived the composite test, California and Illinois,
have held standards compliance evidence is admissible in strict liability. Id. at 42-43
(discussing Kim v. Toyota Motor Corp., 424 P.3d 290 (Cal. 2018), and Calles v. Scripto-
Tokai Corp., 864 N.E.2d 249 (Ill. 2007)).
Appellants criticize the Superior Court’s reliance on Webb for the proposition that
“the Lewis/Gaudio evidentiary prohibition remained good law” after Tincher. Id. at 46
(quoting Sullivan, 253 A.3d at 743). Instead, Appellants point out that Webb demurred
on the question, expressing a preference to address the question in a post-Tincher case.
Id. (citing Webb, 148 A.3d at 483). Further, Appellants fault the Superior Court for
attempting to reinstate the divide between the due care and conduct of the manufacturer
and the condition of the product, which they view as “parrot[ing] Azzarello without using
the name.” Id. at 47. Appellants assert the Superior Court should have recognized that
compliance evidence has a Rule 401 tendency to prove both the manufacturer’s conduct
and the condition of the product. Id. Even if the evidence remains inadmissible as to the
manufacturer’s conduct, Appellants claim it should be admissible on the product defect
issue and reemphasize that “evidence admissible for one purpose is not rendered
inadmissible because it would be inadmissible for another purpose[.]” Id. at 47-48
(quoting Bialek, 242 A.2d at 235). If misleading the jury is a concern in a particular case,
Appellants propose that “such issues may be alleviated in the usual way, with limits on
argument and jury instructions.” Id. at 48. 7 In sum, Appellants’ position is that compliance
7 Amicus curiae The Pennsylvania Defense Institute (PDI) maintains Tincher rendered
Lewis’s exclusionary rule obsolete because Lewis was based on the premise that
negligence concepts have no place in strict liability. PDI argues that under the Rules of
Evidence, all relevant evidence is admissible unless otherwise provided by law. Because
compliance evidence is relevant, Amicus contends it should be admissible, subject to
limiting instructions to assist the jury in properly considering it. PDI’s Amicus Br. at 13
(“[c]omparison of a finished product to a regulation or standard yields direct evidence,
requiring no process of inference, about its condition, quality and fitness[,]” which does
not implicate a manufacturer’s due care).
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evidence should be admissible when relevant, subject to the other rules of evidence, as
the trial court may limit its improper consideration with jury instructions.
In contrast, Sullivan argues compliance evidence pertains solely to due care, which
is ultimately irrelevant because Section 402A states that a seller is strictly liable “although
the seller has exercised all possible care in the preparation and sale of [its] product.”
Sullivan’s Brief at 23 (quoting RESTATEMENT (SECOND) OF TORTS § 402A). Tincher, in
Sullivan’s view, maintained Section 402A as the standard for product liability and did not
overrule Lewis. Id. at 26. Sullivan further notes that Tincher declined to adopt the Third
Restatement of Torts, which includes negligence principles in its characterization of
design defect and permits the admissibility of the product’s compliance with applicable
safety standards and regulations as nonconclusive evidence of product defect. Id. at 28-
29 (discussing RESTATEMENT (THIRD) TORTS: PRODUCTS LIABILITY §§ 2, 4). 8 Sullivan
8 The Third Restatement defines the three categories of product defect as follows:
A product is defective when, at the time of sale or distribution,
it contains a manufacturing defect, is defective in design, or is
defective because of inadequate instructions or warnings. A
product:
(a) contains a manufacturing defect when the product
departs from its intended design even though all
possible care was exercised in the preparation and
marketing of the product;
(b) is defective in design when the foreseeable risks of
harm posed by the product could have been reduced
or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a
predecessor in the commercial chain of distribution,
and the omission of the alternative design renders the
product not reasonably safe;
(c) is defective because of inadequate instructions or
warnings when the foreseeable risks of harm posed by
the product could have been reduced or avoided by the
(continued…)
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argues that Appellants are attempting to achieve a result that is inconsistent with the
framework for products liability that Tincher articulated. Id. at 30.
Additionally, Sullivan accuses Appellants of misrepresenting Tincher to support
their argument that Tincher eliminated the divide between negligence and strict liability.
Id. at 31. For instance, Sullivan notes that Appellants cite Tincher as stating the divide is
unnecessary because “[i]n design cases the character of the product and the conduct of
the manufacturer are largely inseparable,” which Sullivan points out is a quote from then-
Justice Saylor’s concurrence in Phillips v. Cricket Lighters, 841 A.2d 1000, 1015 (Pa.
2003) (Saylor, J., concurring), and the Tincher Court did not adopt that statement as
Pennsylvania law. Id. at 32. Similarly, Sullivan notes that Appellants purport to quote
provision of reasonable instructions or warnings by the
seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of
the instructions or warnings renders the product not
reasonably safe.
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2. Additionally, the Third
Restatement specifically addresses compliance evidence as follows:
In connection with liability for defective design or inadequate
instructions or warnings:
(a) a product's noncompliance with an applicable
product safety statute or administrative regulation
renders the product defective with respect to the risks
sought to be reduced by the statute or regulation; and
(b) a product's compliance with an applicable product
safety statute or administrative regulation is properly
considered in determining whether the product is
defective with respect to the risks sought to be reduced
by the statute or regulation, but such compliance does
not preclude as a matter of law a finding of product
defect.
Id. § 4.
[J-1-2023] - 16
Tincher for the notion that it “tempered [strict liability] by a negligence-based concept of
defect,” when that is also a quote from then-Justice Saylor’s concurrence in Phillips, not
a statement of the Tincher Court. Id. at 32-33. Further, Sullivan asserts that Appellants
incorrectly portray Tincher as stating that the risk-utility test “has all the earmarks of
determining negligence,” where that was the Tincher Court’s parenthetical description of
the Supreme Court of Illinois’ decision in Blue v. Environmental Engineering, Inc., 828
N.E.2d 1128, 1140-41 (Ill. 2005), and not a statement of Pennsylvania law. Id. at 33-34.
Accordingly, Sullivan argues that Appellants’ brief “repeatedly quotes Tincher out-of-
context in support of its theme that Tincher supposedly dismantled the wall between
negligence and strict liability[.]” Id. at 34.
Sullivan continues that our decision in Roverano v. John Crane, Inc., 226 A.3d 526
(Pa. 2020), shows that our Court has preserved the distinction between negligence and
strict liability claims. Id. at 35. In concluding that Pennsylvania’s Fair Share Act did not
require a jury to apportion strictly liable defendants’ shares of liability on a percentage
basis, Sullivan notes that our Court “reaffirmed that ‘strict liability is ‘liability without fault.’’”
Id. at 37 (quoting Roverano, 226 A.3d at 538). Sullivan recognizes that we explained that
negligence notions are not applicable in strict liability based on Tincher’s statement that
“the tortious conduct at issue [in strict liability] is not the same as that found in traditional
claims of negligence and commonly associated with the more colloquial notion of ‘fault.’
In this sense, introducing a colloquial notion of ‘fault’ into the conversation relating to strict
product liability in tort detracts from the precision required to keep this legal proposition
within rational bounds.” Id. at 37 (quoting Roverano, 542-43) (brackets added). Based
on our analysis in Roverano, Sullivan argues Appellants’ claim that Tincher made strict
liability “more negligence-like” is inapt, and Sullivan faults Appellants for failing to
acknowledge Roverano. Id. at 39.
[J-1-2023] - 17
Responding to Appellants’ reliance on persuasive authority, Sullivan urges us to
look to post-Tincher Pennsylvania intermediate court rulings. Id. at 40. Sullivan highlights
that the Superior Court in Webb concluded that Tincher’s overruling of Azzarello did not
undermine the evidentiary rule of Lewis and Gaudio. Id. at 40-41. Additionally, in Dunlap
v. Federal Signal Corp., 194 A.3d 1067 (Pa. Super. 2018), Sullivan notes the Superior
Court affirmed the exclusion of compliance evidence at the summary judgment stage to
establish the effectiveness of the plaintiff’s alternate design. Id. at 42-43. Sullivan points
out that the Superior Court’s decision in this case was consistent with Webb and Dunlap.
Here, in Sullivan’s account, the Superior Court acknowledged the risk-utility factors
supplied by Dean John Wade 9 and listed in Tincher, but it did not see the relevance of
compliance evidence to those factors. Id. at 44. Rather, Sullivan agrees with the Superior
Court that compliance evidence is not relevant under Section 402A because Section
402A imposes liability regardless of the seller’s care, and compliance evidence shows
only due care. Id. at 46. 10
In response to Appellants’ citation to other states’ rulings on compliance evidence,
Sullivan initially notes that fourteen other states’ highest courts permit compliance
9 See infra p.22-23 n.11.
10 Amici curiae American Association for Justice, Pennsylvania Association for Justice, et
al. (AAJ), argue that “unreasonably dangerous” applies to the nature of the product, not
to the manufacturer’s conduct in complying with industry or government standards. Thus,
Appellants’ approach of focusing on compliance is not relevant to the issue of whether
the product was unreasonably dangerous and defectively designed. “The conduct of the
manufacturer should not be judged by reference to other manufacturers; it is the product
which must be judged as either sufficient or deficient, a focus that the Tincher court
reaffirmed.” AAJ’s Amici Br. at 25 (emphasis in original).
Similarly, amici curiae The Center for Auto Safety and The Attorneys Information
Exchange Group (CAS) argue that compliance evidence goes to the manufacturer’s due
care and distracts the jury’s focus from the facts of the case and the product at issue.
CAS’s Amici Br. at 8, 16.
[J-1-2023] - 18
evidence under certain circumstances. Id. at 55. Sullivan claims, without citation, that
some of these jurisdictions follow the Third Restatement while one does not recognize
strict liability causes of action (Delaware). Id. at 56 (citing Cline v. Prowler Indus. of Md.,
Inc., 418 A.2d 968 (Del. 1980)). Sullivan distinguishes California’s approach because
that state shifts the burden of proof to defendants to prove that the product is not defective
after the plaintiff shows the product caused an injury. Id. Additionally, Sullivan notes that
the Supreme Court of Illinois, in the Calles decision Appellants cite, held a plaintiff can
introduce evidence of a defendant’s noncompliance with industry or government safety
standards, but it did not hold a defendant can introduce evidence of its compliance with
such standards. Id. at 62 n.3 (discussing Calles, 864 N.E.2d at 260).
Regarding Appellants’ invocation of Pennsylvania Rules of Evidence 401 and 402,
Sullivan contends Appellants waived their argument by failing to raise it in the trial court
and the Superior Court. Id. at 47-49. In addition to the Rules of Evidence argument,
Sullivan contends Appellants have waived any argument that stare decisis considerations
weigh in favor of overruling Lewis. Id. at 52. Moreover, Sullivan argues stare decisis
considerations counsel against overruling Lewis, raising the legislature’s inaction since
Lewis was issued in 1987 and the potential upheaval in product liability cases from
overruling Lewis. Id. at 53-55. For these reasons, Sullivan asks us to affirm the Superior
Court’s decision that compliance evidence remains inadmissible post-Tincher.
In their reply brief, Appellants dismiss Sullivan’s waiver argument as
“hypertechnical” and contend their invocation of the Rules of Evidence simply provides
additional legal authority in support of their basic theory that Lewis is no longer good law.
Appellants’ Reply Brief at 1 n.1 (citing HIKO Energy, LLC v. Pa. Pub. Util. Comm’n, 209
A.3d 246, 262 (Pa. 2019)). On the merits, Appellants reiterate the main points from their
principal brief described above. In sum, Appellants’ view is that compliance evidence is
[J-1-2023] - 19
admissible but not dispositive. Appellants acknowledge that if a trial court finds the
evidence unhelpful or prejudicial, it may exclude it under Pa.R.E. 403. Appellants
conclude that “[s]tandards compliance is relevant evidence in product liability litigation,
and consistent with Tincher and Pennsylvania law, juries should hear all relevant
evidence—nothing more, nothing less. The Court should allow juries to weigh this
evidence in their deliberations and to give it the weight they believe it deserves.” Id. at
26.
V. ANALYSIS
We conclude that evidence of compliance with industry standards is inadmissible
under the risk-utility test in strict products liability cases. In this regard, we reaffirm the
post-Tincher validity of the rule announced in Lewis.
As discussed above, in Lewis, this Court concluded that evidence of industry
standards and a product’s widespread design within an industry “go to the
reasonableness of the [defendant’s] conduct in making its design choice, [and] that such
evidence would have improperly brought into the case concepts of negligence law.”
Lewis, 528 A.2d at 594. The Lewis Court explained that the proper focus of a design
defect case is on the characteristics of the product and not the conduct of the
manufacturer. Id. at 593. The Court recognized that Azzarello was “in harmony” with
focusing on the product and prohibiting the introduction of “negligence concepts” in strict
liability cases, and the Court further emphasized that “the Restatement (Second) of Torts
makes it clear that the imposition of strict liability for a product defect is not affected by
the fact that the manufacturer or other supplier has exercised ‘all possible care.’” Id. The
Lewis Court also reasoned that industry standards evidence “would have created a strong
likelihood of diverting the jury’s attention from the [defendant’s product] to the
reasonableness of the [defendant’s] conduct in choosing its design.” Id. at 594.
[J-1-2023] - 20
Accordingly, Lewis held compliance evidence was inadmissible as it had “a tendency to
distract the jury from its main inquiry or confuse the issue.” Id.
Although Tincher overruled Azzarello, it did not overrule Lewis or criticize its
reasoning. In returning to the jury the decision of whether to impose strict liability, the
Tincher Court emphasized strict liability remained a distinct theory from negligence:
Nevertheless, the tortious conduct at issue [in strict product
liability] is not the same as that found in traditional claims of
negligence and commonly associated with the more colloquial
notion of ‘fault.’ In this sense, introducing a colloquial notion
of ‘fault’ into the conversation relating to strict product liability
in tort detracts from the precision required to keep this legal
proposition within rational bounds.
Tincher, 104 A.3d at 400. Further, while recognizing that strict liability “overlaps in effect
with the theories of negligence and breach of warranty,” the Court distinguished strict
liability as “effectuat[ing] a further shift of the risk of harm onto the supplier than either
negligence or breach of warranty theory by combining the balancing of interests inherent
in those two causes of action.” Id. at 401-02 (emphasis in original). The duty involved in
strict liability—to produce and/or market a product without “a defective condition
unreasonably dangerous”—is different from the duty of due care in negligence. Id. at 383
(quoting RESTATEMENT (SECOND) OF TORTS § 402A(2)).
To prove a breach of this duty in design defect cases, Tincher replaced the
Azzarello standard with a “composite test” in which the consumer-plaintiff may show a
defective condition through either (or both) the consumer expectations test or the risk-
utility test. Id. at 401. In its thorough exposition of the development of strict liability, the
Court explained that the consumer expectations test, based on the consumer’s
expectation that a seller placing a product on the market impliedly represents the product
is not unreasonably dangerous, derived from the breach of warranty roots of strict liability.
Id. at 402-03. Meanwhile, the risk-utility test, focusing on the manufacturer’s risk-benefit
[J-1-2023] - 21
calculus, reflected its negligence strands. Id. at 403-04. Regardless of which test is used,
the duty is to provide a product free from a defective condition unreasonably dangerous
to the consumer, and liability may be incurred irrespective of fault. Id. at 403 (recognizing
all definitions of defect “effectuat[e] the single policy that those who sell a product are held
responsible for damages caused to a consumer by the reasonable use of the product.”).
In articulating the composite test to prove a defect, the Tincher Court did not address the
viability of the Lewis rule going forward. Id. at 410.
We examine the Lewis rule in light of the factors that a jury must consider when
applying the risk-utility test. Under the risk-utility standard, “a product is in a defective
condition if a ‘reasonable person’ would conclude that the probability and seriousness of
harm caused by the product outweigh the burden or costs of taking precautions.” Id. at
389. In its discussion of the risk-utility standard, the Tincher Court enumerated the risk-
utility factors identified by Dean Wade, 11 but noted the difficulty using those factors in a
11 The so-called “Wade factors” are:
(1) The usefulness and desirability of the product—its utility to
the user and to the public as a whole.
(2) The safety aspects of the product—the likelihood that it will
cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet
the same need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe
character of the product without impairing its usefulness or
making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care
in the use of the product.
(6) The user's anticipated awareness of the dangers inherent
in the product and their availability, because of general public
(continued…)
[J-1-2023] - 22
typical design defect case. Id. Instead, the Tincher Court adopted the composite test as
set forth by the California Supreme Court in Barker v. Lull Engineering Co., 573 P.2d 443
(Cal. 1978), which contained a nonexclusive list of risk-utility factors: “the gravity of the
danger posed by the challenged design, the likelihood that such danger would occur, the
mechanical feasibility of a safer alternative design, the financial cost of an improved
design, and the adverse consequences to the product and to the consumer that would
result from an alternative design.” Barker, 573 P.2d at 455. 12 As noted above, the trial
court in this case instructed the jury to consider the following factors, which are verbatim
six of the Wade factors:
The usefulness and desirability of the product, its utility to the
user and to the public as a whole, the safety aspects of the
product, the likelihood that it will cause injury, and the
probable seriousness of the injury, the availability of a
substitute product which would meet the same need and not
be as unsafe, the manufacturer’s ability to eliminate the
unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its utility,
the user’s ability to avoid danger by the exercise of care in the
use of the product, the user’s anticipated awareness of the
dangers inherent in the product and their availability, because
of the general public knowledge of the obvious condition of
the product or the existence of suitable warnings or
instructions.
knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product or
carrying liability insurance.
Tincher, 104 A.3d at 389-90 (quoting John W. Wade, On the Nature of Strict Tort Liability
for Products, 44 Miss. L.J. 825, 837-838 (1973)).
12 The Pennsylvania Suggested Standard Civil Jury Instructions (PA-JIICIV) are modeled
after the Barker factors. See PA-JIICIV 16.20 and Subcommittee Note.
[J-1-2023] - 23
N.T., 5/9/19, at 113-14. Regardless of the formulation of the risk-utility test, the focus is
clearly on the characteristics of the product.
We reaffirm Lewis and hold that evidence of a product’s compliance with
governmental regulations or industry standards is inadmissible in design defect cases to
show a product is not defective under the risk-utility theory. To be clear, compliance
evidence is simply evidence of the ultimate conclusion that a product complies with
government regulations or industry standards, i.e., that a government agency or industry
organization would deem the product not defective. It is not evidence of the underlying
attributes of the product that make it compliant with regulations or standards, which is
presumably admissible subject to the ordinary Rules of Evidence. We agree with the
Lewis Court’s assessment that the focus of a design defect case must be limited to the
characteristics of the product, and not the conduct of the manufacturer or seller. See
Lewis, 528 A.2d at 593. Compliance evidence does not prove any characteristic of the
product; rather, it diverts attention from the product’s attributes to both the manufacturer’s
conduct and whether a standards-issuing organization would consider the product to be
free from defects. Neither of these considerations are pertinent to a risk-utility analysis.
The standards that the trial court ruled inadmissible were issued by OSHA and
ANSI. Because Appellants did not submit the standards to the trial court in the form of
an offer of proof when the trial court ruled on the motion in limine, it is unclear which
specific standards Appellants sought to introduce. 13 Generally, those standards govern
conduct. OSHA standards seek to regulate the conduct of employers and employees to
13 Even agreeing with the evidentiary concerns expressed in Justice Donohue’s
concurring opinion, our analysis remains apt as evidence that a manufacturer designed
its product to conform to ANSI, OSHA, or any third-party standards goes to the
manufacturer’s due care in designing a product and results in a sub-trial on the weight
due to those standards,” which diverts the jury’s focus from the product. See Concurring
Op. (Donohue, J.) at 7-8. Again, the focus is on the product’s characteristics, not the
manufacturer’s conduct.
[J-1-2023] - 24
ensure safe and healthful working conditions. See generally 29 U.S.C. § 651. ANSI
standards seek to regulate a manufacturer’s conduct in designing and manufacturing a
product. Accordingly, compliance with those standards reflects on the manufacturer’s
conduct and not any attribute of the product itself. That OSHA or ANSI would deem a
defendant’s conduct compliant with its standards is not relevant to the risk-utility test and
diverts the jury’s attention from the relevant inquiry.
We disagree with Appellants that “Tincher demolished Lewis’ Azzarello-based
reasoning.” Appellants’ Brief at 26. As discussed above, Lewis based its exclusion of
compliance evidence on both Azzarello and Section 402A of the Second Restatement.
See Lewis, 528 A.2d at 594. Tincher reaffirmed that Pennsylvania is a Second
Restatement jurisdiction. Further, to maintain the distinction between strict liability and
negligence, we cannot permit negligence concepts such as fault and due care to creep
into strict liability. See Tincher, 104 A.3d at 400 (“introducing a colloquial notion of ‘fault’
into the conversation relating to strict product liability in tort detracts from the precision
required to keep this legal proposition within its rational bounds.”). Compliance evidence
shifts the jury’s focus away from the characteristics of the product and suggests that the
jury consider the manufacturer’s conduct or an organization’s safety standards. While
Appellants assert that compliance evidence is relevant to whether a product is
unreasonably dangerous and the condition of the product, evidence that a third-party
does not consider the product defective or that a manufacturer complied with those
standards does have any tendency to make any of the risk-utility factors outlined above
more probable.
In essence, Appellants are proposing that we adopt the Third Restatement of Torts’
approach to compliance evidence, which states that “a product’s compliance with an
applicable product safety statute or administrative regulation is properly considered in
[J-1-2023] - 25
determining whether the product is defective with respect to the risks sought to be
reduced by the statute or regulation, but such compliance does not preclude as a matter
of law a finding of product defect.” RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY
§ 4. However, Tincher refused to adopt the Third Restatement, explaining its approach
was “problematic” for numerous reasons, including that its limitation of strict liability to
cases where an alternate design existed and its special evidentiary rules (including its
position on compliance evidence in Section 4) may not be “consistent with the public
policy that compensation is available for an injury caused by any type of defective
product.” Tincher, 104 A.3d at 395-96. Ultimately, Tincher concluded the Third
Restatement’s approach was an insufficient reflection of the law and decided to retain the
Second Restatement, explaining “[u]nlike the Third Restatement, we believe that the
Second Restatement already adopted, and properly calibrated, permits the plaintiffs to
tailor their factual allegations and legal argumentation to the circumstances as they
present themselves in the real-world crucible of litigation, rather than relying upon an
evidence-bound standard of proof.” Id. at 399. Because Tincher considered and rejected
the Third Restatement, we reject Appellants’ attempt to move us toward the Third
Restatement in this case.
Further, Appellants’ argument that Tincher recognized that strict liability and
negligence overlap is misplaced. As explained above, Tincher recognized that the risk-
utility test reflects the negligence roots of strict liability. However, Tincher did not adopt
the risk-utility test to incorporate negligence concepts such as fault and due care into strict
liability. Instead, Tincher was careful to distinguish the duty involved in strict liability from
the duty of due care in negligence. See Tincher, 104 A.3d at 383. One method to prove
a product was in a “defective condition unreasonably dangerous,” i.e., in breach of the
strict liability duty, is the risk-utility test. Tincher rejected Appellants’ position that this test
[J-1-2023] - 26
incorporates negligence considerations. See id. at 400 (“the tortious conduct at issue is
not the same as that found in traditional claims of negligence and commonly associated
with the more colloquial notion of ‘fault.’”).
Lastly, Appellants’ argument that our decision places Pennsylvania in a minority
position regarding the inadmissibility of compliance evidence is unavailing. Our decision
is based on our analysis and application of Pennsylvania precedent regarding the
development of strict product liability. We adhere to Section 402A’s principle that strict
liability may be imposed even if a defendant exercised “all possible care.” Strict liability
remains distinct from negligence in that it imposes liability without fault. It reflects the
“social and economic policy of this Commonwealth,” which is that “those who sell a
product (i.e., profit from making and putting a product in the stream of commerce) are
held responsible for damage caused to a consumer by the reasonable use of the product.
The risk of injury is placed, therefore, upon the supplier of the products.” Tincher, 104
A.3d at 381-82 (citations omitted). The focus in a design defect case must remain on the
product and not on the manufacturer’s conduct. Accordingly, we conclude that Lewis
remains the law and evidence of a products’ compliance with industry or government
standards is not admissible in design defect cases to show a product is not defective
under the risk-utility theory.
[J-1-2023] - 27
VI. CONCLUSION
For these reasons, we affirm the Superior Court’s decision that the trial court did
not abuse its discretion in granting Sullivan’s motion in limine to preclude the admission
of any industry or government standards at trial.
Justices Dougherty and Wecht join the Opinion Announcing the Judgment of the
Court.
Justice Donohue files a concurring opinion.
Chief Justice Todd files a dissenting opinion in which Justice Brobson joins.
[J-1-2023] - 28
Sullivan, M., et ux. v. Werner Co., Aplts.
Combined Opinion