The Subrogation Strategist

Pennsylvania has maintained its own peculiar brand of strict products liability law ever since the Supreme Court decided Azzarello v. Black Bros. Co., Inc.[1] in 1978. Maligned by many as “absurd and unworkable,”[2] if “excessively” orientated towards plaintiffs,[3] Azzarello’s unique approach to the Restatement (Second) of Torts § 402A (1965)[4] has recently been judicially consigned to the dustbin of history.

In Tincher v. Omega Flex, Inc.,[5] decided on November 19, 2014, the Pennsylvania Supreme Court expressly overruled Azzarello leaving in its place a new alternative standards approach to proving a Section 402A claim. An injured worker or subrogated insurer[6] must still prove that the seller, whether a manufacturer or a distributor, placed the product on the market in a “defective condition unreasonably dangerous to the consumer.”[7] But now, under Tincher, a plaintiff must use either a “consumer expectation test” or a “risk-utility test” to establish that criterion.[8]

Of the many issues potential strict products liability litigants are left to ponder after Tincher, one of the most basic—and possibly overlooked—issues is “When should it apply?” Specifically, if a case were filed months or even years before Tincher was decided, and it remains pending, will Azzarello’s approach to Section 402A govern the case, or does the new Tincher approach apply?

Doctrinally, this issue is framed in terms of “retroactive” versus “prospective” application. The Pennsylvania Constitution neither mandates nor forbids retroactive or prospective application of a new decision.[9] The decision to apply a new rule of law is within the complete discretion of the court.[10] And although Pennsylvania courts generally apply the law in effect at the time of an appellate decision, affording parties whose cases are pending the benefit of changes in the law, they may deviate from this approach to further the interests of justice.[11] A “sweeping rule of retroactive application” has never been the law of the Commonwealth.[12]

The decision to apply a new rule of law retroactively or prospectively is generally informed by the tripartite Chevron[13] test, which the Pennsylvania Supreme Court adopted in 1977 in Schreiber v Republic Intermodal Corp.[14] Under the test, Pennsylvania courts consider: (1) whether the decision establishes a new principle of law; (2) the merits of the rule in question, its purpose and effect, and the potential impact of retroactive effect on its application; and (3) the equities involved as the case may be.[15]

In Tincher, the Supreme Court never reached this decision. It sent the issue of how to apply its new alternative standards approach to Section 402A back to the trial court.[16] Fortunately there are other sources of guidance on the issue. For example, certain voices of the Court in cases leading up to Tincher, including particularly that of the Commonwealth’s new Chief Justice, consistently favored a “purely prospective” move away from Azzarello.[17]

In Bugosh v. I.U. N. Am., Inc., for example, Chief Justice (then Justice) Thomas G. Saylor stated that, in favoring a prospective move away from Azzarello, “a predominant consideration is the settled expectations of those with accrued causes of action and a present entitlement to resort to the civil justice system.”[18] “Azzarello has been with us for too long,” then Justice Saylor added, “and too much settled jurisprudence has evolved around it, for it to be retroactively displaced without profound impact on vested entitlements.”[19]

If Tincher should apply only prospectively, i.e., not retroactively on cases that were pending when Tincher was decided, is there a cut-off point at which litigants’ “settled expectations” would no longer be spoiled by retroactive application? What about for causes of action which accrued before November 19, 2014, during Azzarello’s reign, but for which a lawsuit has not yet been commenced? Is this one of the issues the Pennsylvania Supreme Court, in its parting remarks in Tincher, intended to “develop within the proper factual context against the background of targeted advocacy?”[20]

Many questions remain post-Tincher. It is clear that the Azzarello decision made Pennsylvania one of the most favorable jurisdictions in the country to pursue strict product liability claims. Azzarello is no longer the law and Tincher now provides the framework for the new landscape which needs to be navigated. This framework is in its infancy and is malleable, providing litigants with a tremendous opportunity to shape the new law to advance their respective interests favorably in the strict product liability claims arena.

[1] 391 A.2d 1020 (Pa. 1978).

[2] John M. Thomas, Defining “Design Defect” in Pennsylvania: Reconciling Azzarello and the Restatement (Third) of Torts, 71 Temp. L. Rev. 217, 217 (1998) (citing James A. Henderson, Jr., Products Liability, 2 Corp. L. Rev. 246, 248 (1979)).

[3] Ellen Wertheimer, Azzarello Agonistes: Bucking the Strict Products Liability Tide, 66 Temp. L. Rev. 419, 420 n.9 (1993) (citing Sheila L. Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand. L. Rev. 593, 637 (1980)) (“[S]ome commentators take issue with what they view as Azzarello’s excessive orientation towards plaintiffs.”).

[4] “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.”

[5] 104 A.3d 328 (Pa. 2014).

[6] The issue of whether a subrogated insurer has a direct right of recovery against a third party tortfeasor is currently pending before the Pennsylvania Supreme Court. Liberty Mut. Ins. Co. v. Domtar Paper Co., 92 A.3d 809 (Pa. 2014). An opinion is expected sometime this year, although vacancies on the Court may delay a ruling.

[7] See Edward A. Jaeger Jr. and William L. Doerler, Pennsylvania’s Supreme Court Clarifies Pennsylvania’s Strict Liability Standard, The Subrogation Strategist (Jan. 15, 2015), available here.

[8] See id. (“In other words, plaintiffs may prove a defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of the harm caused by the product outweigh the burden or costs of taking precautions.”) (internal quotation omitted).

[9] Blackwell v. Com., State Ethics Comm’n, 589 A.2d 1094, 1098 (Pa. 1991).

[10] Com. v. Grant, 813 A.2d 726, 738 (Pa. 2002) (subsequent history omitted) (citing Blackwell, 589 A.2d at 1098).

[11] Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1242 (Pa. 2009) (Saylor, J., dissenting, in which Castille, C.J., joins) (citations omitted). See also Blackwell, 589 A.2d at 1100 (quoting Gibson v. Com., 415 A.2d 80, 84 (Pa. 1980) (“The prime impetus behind th[e] occasional willingness not to give a decision full effect is the concern that a novel decision will unfairly prejudice those formerly advantaged by the old rules.”).

[12] Blackwell,589 A.2d at 1099.

[13] Named after Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971).

[14] 375 A.2d 1285 (Pa. 1977).

[15] Bugosh, 971 A.2d at 1243 (Saylor, J., dissenting, in which Castille, C.J., joins) (internal quotations and citations omitted).

[16] Tincher v. Omega Flex, Inc., 104 A.3d 328, 410 (Pa. 2014).

[17] See, e.g., Bugosh, 971 A.2d at 1241 (Saylor, J., dissenting, in which Castille, C.J., joins) (“I am on record as favoring prospective movement [away from Azzarello], and I remain of that position today, for the reasons I previously have stated.”) (citation omitted); Phillips v. Cricket Lighters, 841 A.2d 1000, 1012 (Pa. 2003), disapproved of by McGonigal v. Sears Roebuck & Co., 2009 WL 2137210 (E.D. Pa. July 16, 2009) (Saylor, J., concurring, in which Castille, C.J, and Eakin, J., join) (arguing for move away from Azzarello, “at least on a prospective basis”).

[18] 971 A.2d at 1242-43.

[19] Id. at 1243.

[20] Tincher, 104 A.3d at 410.