The Subrogation Strategist

Since the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), parties proceeding in product liability cases in Pennsylvania often disagree about jury instructions. In Davis v. Volkswagen Grp. of Am., No. 1405 EDA 2018, 2019 Pa. Super. Unpub. LEXIS 2763, the Superior Court of Pennsylvania, in an unpublished opinion,[1] recently addressed whether the trial court gave proper jury instructions in a products liability case against Volkswagen entities, including Volkswagen Aktiengeselleschaft (Volkswagen). The court held that, despite a statement in Tincher that the plaintiff is the “master of the claim,” the trial court properly instructed the jury on both the consumer expectation test and the risk-utility test for establishing that the product at issue, a Volkswagen Passat, was in a defective condition.

Davis dealt with a claim brought against Volkswagen by Jane E. Davis (Davis), the executor of the Estate of Robert N. Davis, who died in an automobile accident that occurred in February of 2012. The accident occurred when a vehicle driven by Alfred Hanna (Hanna) crossed the centerline of a highway and struck the Passat driven by the plaintiff’s decedent. After Hanna’s vehicle hit the decedent’s vehicle and the Passat came to a rest, fire consumed the Passat and the decedent died because of injuries from the fire. Subsequently, Davis filed suit against, among others, Volkswagen. Davis asserted several claims against Volkswagen, including a strict liability claim based on an alleged design defect in the Passat’s fuel tank. Because the alleged defect in the fuel tank was not the cause of the accident, Davis argued that Volkswagen failed to comply with its duty to design and build a crashworthy vehicle. To establish her crashworthiness claim against Volkswagen, Davis had to prove that the Passat’s fuel tank was defective.

At trial, to show that the Passat was in a defective condition, Davis asked the court to apply the consumer expectation test. Volkswagen argued that, because Davis’ design defect claim was complex, she had to use the risk-utility test to establish the Passat’s defective condition. The court denied Davis’ request and instructed the jury that Davis could establish the vehicle’s defective condition using either the consumer expectation test or the risk-utility test. After the jury found that Volkswagen was not liable, Davis appealed.

On appeal, Davis argued that the trial court erred by refusing to allow her to pursue her chosen theory of liability. In support of her argument, Davis asserted that she was entitled to proceed on a consumer expectation theory because the Tincher court stated that “the plaintiff is the master of the claim in the first instance.”[2] The Superior Court disagreed.

As noted by the court, although Tincher states that the plaintiff is the master of the claim in the first instance, it also noted that trial court judges act as gatekeepers, whose roles include narrowing or expanding the theories of litigation to be pursued at trial. In addition, the Superior Court pointed out that the Tincher court stated that, “[w]here evidence supports a party-requested instruction on a theory or defense, a charge on the theory or defense is warranted.”[3] Because Volkswagen admitted into evidence expert testimony that the fuel tank was not punctured and that the fire started in the engine, not near the fuel tank, the Superior Court found that Volkswagen put the risk-utility test into issue. Thus, the Superior Court held that the trial court properly instructed the jury as to both tests. Further, the court held that Davis’ contention that, by instructing the jury on the risk-utility test, the court prevented her from litigating the cause under her chosen theory was without merit. Davis’ contention was without merit because, in addition to instructing the jury on the risk-utility test, the trial court also instructed the jury on the consumer expectation test.

Although the Superior Court found that the trial court’s jury instructions on both tests were appropriate, the concurring opinion, joined by two of the three judges on the panel, found that, because any alleged error was harmless, the Superior Court did not need to address the merits of Davis’ argument. Thus, while the Superior Court’s majority opinion provides persuasive authority, its analysis appears to be little more than dicta. The majority opinion’s analysis, however, is still instructive as it provides insight into how the Superior Court will handle future cases dealing with this issue.

In addition to the majority opinion providing insight into how courts will proceed going forward, the concurring opinion provides insight into possible arguments the parties can raise in future cases. Based on the concurring opinion, it appears that the Superior Court had reservations about whether the consumer expectation test applied in the first instance because it was unclear whether consumers were knowledgeable enough about the design of fuel tanks to form expectations regarding the design. However, because no party addressed this issue, the court did not decide whether the plaintiff could rely on the consumer expectations test in the first instance. The concurring opinion also questioned whether Volkswagen could properly defend against the plaintiff’s consumer expectation test theory by using a risk-utility analysis. However, because the issue on appeal was narrowly drawn, the Superior Court did not need to decide this issue. Although the Superior Court did not decide the issues noted in the concurring opinion, the fact that the court identified these potential issues without deciding them suggests that parties involved in a case where the plaintiff seeks to proceed using a consumer expectation theory will raise similar issues in the future.

[1] Pursuant to Superior Court I.O.P. 65.37 and Pa.R.A.P. 126(b), unpublished memorandum decisions issued after May 1, 2019 can be cited as persuasive authority.

[2] Tincher, 104 A.3d at 406.

[3] Id. at 428-29.