A recent Pennsylvania Supreme Court decision has reaffirmed the applicability of strict liability standards under Restatement Second's §402(a) in products liability cases filed in the State, and has barred evidence of compliance with industry or governmental standards to demonstrate that a product was safe and not defective. While clarifying these issues for trial courts and litigants, the Court's plurality decision creates a potential unbalanced playing field for defendant manufacturers relying upon such standards in the design of their products.

In its recent decision in Sullivan v. Werner, an appeal involving injuries sustained by a plaintiff when a scaffold on which he was working collapsed unexpectedly, the Pennsylvania Supreme Court readdressed its decade-old ruling in Tincher v. Omega Flex, Inc. and held that in a strict liability design defect case the appropriate focus needs to remain on the product itself and not the reasonableness of the conduct of its manufacturer in making design choices, including compliance with industry or governmental standards, to ensure the safety to consumers and users of its products. While a concurring opinion by one of the Court's Justices suggests that evidence of such compliance may be admissible in demonstrating a rational basis for the design implemented by a product manufacturer, it is doubtful in light of the Court's holding that such evidence will be deemed admissible to establish the absence of a design defect.

In the underlying case, at trial plaintiff was permitted to introduce evidence of alternative scaffold designs and products, while attempts by the defense to introduce evidence of scaffolds utilizing the same or a similar design as the scaffold at issue were barred by the trial court insofar as they were proffered by the defense to show the defendant's compliance with industry and OSHA standards. Insofar as a plaintiff may introduce evidence that is precluded to the defense, a fact-finder may be denied an opportunity to consider a full array of product designs in determining if the product involved in the case was unreasonably dangerous to users. This conundrum was highlighted by Chief Justice Debra Todd in her dissenting opinion as she concluded the majority opinion "accepts the patent unfairness of nonetheless allowing such evidence to be admissible in a plaintiff's case to show a product is defective; and deprives juries of potentially valuable and relevant information."

The Court's decision will likely produce an influx of §402(a) strict liability products cases into Pennsylvania; and, as a result, trial courts will now need to determine on a case-by-case basis whether and how to permit defendants an opportunity to offer evidence of compatible product designs in the marketplace without running afoul of the ban on the introduction of industry and governmental standards.

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