Sullivan v. Werner Co.

Full title: MICHAEL AND MELISSA SULLIVAN, H/W v. WERNER COMPANY AND LOWE'S COMPANIES…

Court: Supreme Court of Pennsylvania

Date published: Dec 22, 2023

18 EAP 2022 (Pa. Dec. 22, 2023)

Opinion

18 EAP 2022 J-1-2023

12-22-2023

MICHAEL AND MELISSA SULLIVAN, H/W v. WERNER COMPANY AND LOWE'S COMPANIES, INC., AND MIDDLETOWN TOWNSHIP LOWE'S STORE #1572 APPEAL OF: WERNER COMPANY AND LOWE'S COMPANIES, INC.

MUNDY, JUSTICE

ARGUED: March 8, 2023

Appeal from the Judgment of Superior Court entered on April 15, 2021 at No. 3086 EDA 2019 (reargument denied June 23, 2021), affirming the Judgment entered on November 19, 2019 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 161003086.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MUNDY, JUSTICE

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 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 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.

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).

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 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

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).

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 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

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. 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, 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, 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, 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. 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

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.

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 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.

4 Amicus curiae Philadelphia Association of Defense Counsel (PADC) maintains compliance evidence is relevant in design defect cases because government and industry 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.

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 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)).

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.

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 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.

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).

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 argues that Appellants are attempting to achieve a result that is inconsistent with the framework for products liability that Tincher articulated. Id. at 30.

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 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.

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 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.

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 Wade⁹ 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

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.

In response to Appellants' citation to other states' rulings on compliance evidence, Sullivan initially notes that fourteen other states' highest courts permit compliance 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 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. 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 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 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:

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 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.

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.

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 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.

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.

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 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 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.

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.

CONCURRING OPINION

DONOHUE, JUSTICE

I concur in the result reached in the Opinion Announcing the Judgment of the Court ("OAJC"). Based on the record in this case developed on the Sullivans' Motion in Limine to Preclude Introduction of Evidence of Compliance with Industry and Government Standards and Werner Company's and Lowe's Companies' ("Manufacturers") response thereto, the trial court did not abuse its discretion by disallowing the evidence. In my view, the complicated legal issue presented in this appeal is unfortunately not resolvable because of the undeveloped evidentiary record and undirected advocacy in the trial court.

I am in agreement with many of the principles advanced by the OAJC, including that post-Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), Pennsylvania remains fully committed to the Restatement (Second) of Torts § 402A for adjudication of strict liability claims; that such liability is divorced from the consideration of fault on the part of defendants; and that evidence that a defendant conformed its conduct to that of others in its industry in designing its product is irrelevant in determining whether, in a design defect case, a product is unreasonably dangerous for purposes of strict liability under Section 402A. It is on this last principle that the OAJC rests to conclude that evidence of industry and governmental standards is inadmissible. I am not fully convinced that this principle applies to one of the Manufacturers' arguments in favor of its admissibility.

As I understand it, in the context of this design defect case, Manufacturers' argument in support of admissibility of industry (ANSI)¹ and/or government (OSHA)²standards to establish lack of a defect in the design of its product is more nuanced. They submit that these standards establish a design that, apparently by definition, is not unreasonably dangerous (i.e., the design proves that the product is not defective). See Manufacturers' Brief, at 31. Taking this argument to its logical conclusion, it would not matter that no other manufacturer in the industry utilized the same design. According to the Manufacturers, producing a product that is designed pursuant to the industry or government standard makes evidence of the standard relevant to the question of whether the product is defective.

1 The American National Standards Institute ("ANSI").

2 The Occupational Safety and Health Administration ("OSHA").

Accepting the Manufacturers' argument as workable for the purpose of examining the record in this case, there are two interrelated evidentiary deficits in the record that support the trial court's conclusion supporting a finding that these standards are inadmissible in this design defect case.

First, the Manufacturers' overarching argument before the trial court was that evidence that its product was designed in compliance with industry standards³ is probative of whether the product is defective. See Defendants' Response in Opposition to Plaintiffs' Motion in Limine to Preclude Any Mention of Government or Industry Standards, 4/22/2019; Memorandum of Law in Support of Response, 4/22/2019. This broad offer to explain the relevancy of the standards is disconnected from and not helpful to the jury's determination because the jury was instructed to consider a variety of factors in determining whether the product at issue was unreasonably dangerous. While the motion in limine was decided prior to the trial court's formulation of the actual points for charge under the risk-utility test, the range of factors that a jury would be instructed to consider were well known - the Wade Factors,⁴ the Barker Factors,⁵ and the safe choice, Pennsylvania Suggested Standard Jury Instructions.⁶ The Manufacturers did not attempt to establish the relevance of the applicable industry standards to any of the factors previously identified as relevant to the jury's determination that a product is unreasonably dangerous.

3 While the motion in limine addressed the preclusion of both ANSI and OSHA standards, the focus of the arguments was on ANSI standards and so, I will also refer to those standards. However, my view of the deficits in the record apply equally to the attempted introduction of both standards.

4 The Wade factors include:

(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 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 J. Wade, "On the Nature of Strict Tort Liability for Products," 44 Miss. L.J. 825, 837-38 (1973)).

5 The Barker factors include:

(1) The gravity of danger posed by the challenged design.

(2) The likelihood that such danger would occur.

(3) The mechanical feasibility of a safer alternative design.

(4) The financial cost of an improved design.

(5) The adverse consequences to the product and to the consumer that would have resulted from an alternative design.

Barker v. Lull Engineering Co., 573 P.2d 443, 454 (Cal. 1978).

6 The suggested Pennsylvania jury instructions provides in relevant part:

…

To decide whether the product is defective under [the risk-utility test] you may consider the following factors:

(1) the seriousness of the potential harm resulting from the use of the product;

(2) the likelihood that the harm would occur;

(3) the feasibility of an alternative safer design at the time of the manufacture or sale of the product;

(4) the cost of an alternative design; and/or

(5) the disadvantages of an alternative design.

Pa. S.S.J.I. (Civ), § 16.20 Determination of Design Defect (2020).

This shortcoming gives rise to the second deficiency in the Manufacturers' argument in opposition to the motion in limine: the record is devoid of any information about what ANSI standards are, how they are developed, or what their purpose, application or interpretation is. In other words, are any of the various factors to be considered by the jury taken into account in the process of developing the standards.

From the outset, I was struck by the omission from the record of the actual ANSI or OSHA standard sought to be admitted by the Manufacturers.⁷ As the proponent of the admission of the evidence, the Manufacturers had the burden of establishing its relevance. Instead, the Manufacturers assumed that merely invoking the acronym "ANSI" sufficiently apprised the trial court of the relevance of the evidence. Although one would not know it from the record in this case, the development, interpretation and application of ANSI standards are complicated.

7 The Manufacturers' expert submitted a report that identified ANSI A10.8 - 2001 Scaffold Safety Requirements as the applicable ANSI standard and OSHA 1926 as the applicable standard for use in construction. Neither standard was attached to the report. See Knox Expert Report, 11/13/2018, at 32.

While nothing in this record sheds light on the process, the District Court for Minnesota recently decided a case involving a claim based on an alleged violation of Minnesota's version of the Lanham Act and provided a detailed explanation of the developmental process and application of the ANSI standards. In Little Giant Ladder Systems v. Tricam Industries, Inc., 2022 WL 325969 (D. Minn. Feb. 3, 2022), Little Giant sued Tricam, a competitor manufacturer of multi-position ladders, for falsely claiming that its ladder complied with ANSI standards, specifically the standard for minimum width of rungs on a ladder - ANSI A14.2 § 6.7.5. The district court engaged in a detailed analysis of the evidence, all of which was presented by these competing manufacturers in the ladder industry. Although it is not my intention to exhaustively recount the evidence or the district court's analysis, some of its findings of fact shed light on relevancy considerations important to a decision on the admissibility of ANSI standards in a strict liability design defect case.⁸

8 My reference to the evidence in this case is purely to illustrate the complicated nature of the development of ANSI standards and the nuances in their interpretation and application. I note, however, that the Manufacturers' expert in this appeal, Erick H. Knox, Ph.D., P.E., cites to his participation in the development of ANSI ASC A14.2 as a basis for his expertise in the climbing industry, in which scaffolding manufacturers are included. See Knox Expert Report, 11/13/2018, at 3; N.T., 5/2/2019, at 185-88.

For example, the production of the ANSI standards was funded by the American Ladder Institute ("ALI") which is comprised of ladder manufacturers and suppliers. The standards were prepared under the supervision of a committee composed of members from three interest groups: 1) fabrication-related members (such as manufacturers and trade associations); 2) users of ladders (representing interests of customers and individuals employed by companies using ladders); and 3) other general interest members (like insurance companies, specialists and others who do not fall into the other categories). There can be no more than 1/3 representation on the committee from any interest group. This committee serves as the consensus body for the A14 standards. If the committee approves a standard, it is relayed to the ANSI organization for public comment. Committee approval of the standard does not necessarily imply that all committee members voted for its approval.

The purpose of ANSI A14.2 is "to provide reasonable safety for life, limb and property" and to provide a set of performance and dimensional requirements against which a product may be compared. It is not the purpose of the standard to specify all of the details of construction of portable metal ladders. Determining whether a ladder complies with ANSI standards involves a "self-policed" or "honor system;" i.e., individual manufacturers are responsible for their own testing to determine if they properly comply with ANSI standards. Moreover, Section 2.3 of ANSI A14.2 provides that in view of the many different kinds of ladders and the many different conditions under which they are used, in determining compliance, the standard should be liberally construed considering the rationale. Finally, Section 5 of ANSI A14.2 explains that the standard is based on current designs and materials of construction.⁹

9 The Little Giant court found this to be important in concluding that ANSI A 14.2 § 6.7.5 "was not intended on its adoption to render non-compliant an existing category of ladders produced by manufacturers with representation on the committee." Little Giant, 2022 WL 325969 at *16.

The case before us on appeal is devoid of any of the evidence necessary for the trial court to determine whether the ANSI standard applicable to the scaffold at issue was relevant to any of the factors to be considered by the jury in determining whether the product was unreasonably dangerous. The evidence adduced in the Little Giant deceptive trade practices case demonstrates that baldly stating that a product complied with ANSI standards is meaningless to a court tasked with determining the relevancy of the evidence. In this case, we do not know what was taken into account in developing the applicable standards or whether a liberal interpretation of the standard was recommended in the standard and, if so, whether it was applied. Although Manufacturers' expert proposed to testify that the scaffold "is compliant with ANSI …, "¹⁰ we cannot know who certified that fact - the Manufacturers or a third party? More importantly, was the applicable ANSI standard based on current design and materials in existence at the time of its development? If so, is the standard nothing more than an imprimatur on industry custom and practice and thus evidence of conforming to the conduct of others in the industry,¹¹ i.e., evidence of due care?

10 See Knox Expert Report, 11/13/2018, at 29.

11 The Dissent relies heavily on Kim v. Toyota Motor Corp., 424 P.3d 290 (Cal. 2018), to support the admissibility of the ANSI standards in this case. Kim involved custom and usage in the industry, not ANSI standards. Custom and usage in the industry is pure "due care" evidence. The Kim Court relied on the Third Restatement and the fact that the majority of other states permit the admission of industry custom and practice evidence. Kim, 424 P.3d at 299, n.5. Conversely, this Court proclaimed in Tincher that Pennsylvania was not adopting the Third Restatement. Tincher, 104 A.3d at 399. Although Tincher is not the model of clarity on the postAzzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), strict products liability world, it was perfectly clear in its rejection of the Third Restatement, including its broad endorsement of the admissibility of industry standards evidence in design defect cases as probative of the reasonableness of a manufacturer's design choice. In my view, if industry design standards have any role in design defect cases in Pennsylvania, they must be probative of something other than the defendant following others in the industry.

Any decision on the admissibility of industry or governmental standards in a design defect products liability case requires a developed record containing evidence establishing the relevance of the standard to a factor or factors that a jury must consider in reaching its liability verdict. Here, the trial court did not have that record and thus, the trial court did not err in excluding the evidence.

Moreover, while the trial court needed evidence concerning the development, application and interpretation of the ANSI standard at issue in this case to determine relevancy, if deemed admissible, the jury would be entitled to have much of the same evidence to determine what weight should be given to evidence that the product was designed to comply with the standard. A trial court would be within its exercise of discretion to exclude the evidence if it concluded that a sub-trial on the weight to be given to ANSI standards would confuse the jury and distort the focus from the product at issue to the machinations involved with the development, application, and interpretation of ANSI standards. This would be particularly true in a case like this one, where the design elements of the scaffold were simple; a platform fit into a track with the platform secured by a moveable latch on top of the platform.

Given the lack of a record supporting the admissibility of industry standards, the trial court did not err in excluding the evidence. Thus, I concur in the result reached in the OAJC.

DISSENTING OPINION

TODD DECIDED, CHIEF JUSTICE

The Opinion Announcing the Judgment of the Court ("OAJC") concludes that governmental and industry standards evidence is categorically inadmissible by the defense in a strict liability action to show a product is not defective. In doing so, the OAJC perpetuates a vestige of the highly criticized and recently overruled decision in Azzarello v. Black Brothers Co., Inc., 391 A.2d 1020 (Pa. 1978); eschews the recent teachings of this Court in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014); rejects the sound approach taken by virtually all of our sister states; 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, all seemingly out of a misplaced fear that the jury will be misled or confused. For the reasons that follow, I respectfully dissent.

A brief history of the admissibility of governmental and industry standards gives important context to the issue before us. The development of a sophisticated industrial society with its proliferation of new and complex products inspired a shift in legal philosophy, from the principle of caveat emptor which prevailed in the early 19th century to the view that a manufacturer and supplier of a product should be deemed to be the guarantor of their products' safety and bear the risk of loss for injury resulting from a defective product. Ultimately, this view was codified in Section 402A of the Restatement (Second) of Torts, and adopted by our Court in Webb v. Zern, 220 A.2d 853 (Pa. 1966). While the focus of Section 402A and the view it codified was, and is, on manufacturers and suppliers, governmental and industry standards evidence was admissible at this juncture, and we rejected attempts to preclude the admissibility of such evidence. See, e.g., Forry v. Gulf Oil Corp., 237 A.2d 593, 598 n.10 (Pa. 1968) (finding a departure from a custom in the tire industry as to the length of tire "overlaps" allows for a reasonable inference that a variance from that custom created an unreasonable danger); Bialek v. Pittsburgh Brewing Co., 242 A.2d 231, 235 (Pa. 1968) (rejecting suggestion that governmental and industry standards should be excluded in product liability cases).

In the wake of Azzarello, however, which created a distinct divide between strict liability and negligence theories of recovery and declared that negligence concepts had no place in Pennsylvania strict liability doctrine, governmental and industry standards evidence in strict liability actions was prohibited. See Lewis v. Coffing Hoist Division, Duff-Norton Co., 528 A.2d 590, 594 (Pa. 1987) (relying upon Azzarello's negligence/strict liability dichotomy in determining that, because negligence concepts have no place in strict liability, the admission of industry standards, which go to the reasonableness of the defendant's conduct in product design, would improperly inject concepts of negligence and mislead the jury).

Our recent decision in Tincher, however, revisited Azzarello, ushering in a sea-change in the law.¹ In doing so, the Tincher Court considered the sharp criticism of Azzarello's strict separation between negligence and strict liability concepts in design defect cases. The Court underscored that Section 402A relieves plaintiffs of the burden of proving the absence of due care in the manufacturing process, but that this did not, however, necessarily apply in design defect cases where "the character of the product and the conduct of the manufacturer are largely inseparable." Tincher, 104 A.3d at 424. Finding that the separation between negligence and strict products liability "fail[ed] to reflect the realities of strict liability practice and to serve the interests of justice", the Tincher Court overruled Azzarello. Id. at 376. The Tincher Court recognized that strict liability overlaps in effect with theories of negligence and restored the inquiry into whether a product is "unreasonably dangerous" under Section 402A to the jury. Under Tincher, the calculus for finding liability has been altered. Now, to establish a design defect as unreasonably dangerous, a plaintiff may prove that a product is defective under a "composite" approach, by showing that either: (1) the danger is unknowable and unacceptable to the average or ordinary consumer ("consumer expectations standard") (not at issue in this matter); or (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweighed the burden or costs of taking precautions ("risk-utility standard").

1 While Tincher did not expressly overrule Lewis, the Court recognized that its decision to overrule Azzarello and articulate a standard of proof premised upon alternative tests in relation to design defect claims would have an impact upon other foundational issues which were constructed from Azzarello, but determined that consideration of those effects was outside of the scope of the appeal. Tincher, 104 A.3d at 409-10. We observe, however, that Lewis was wholly dependent upon Azzarello's negligence/strict liability dichotomy. The Lewis Court determined that, because under Azzarello a manufacturer was a guarantor of product safety, such entity's due care had no bearing on strict liability. Given its underpinnings, it is clear that Lewis did not survive the demise of Azzarello and should be expressly overruled.

Under the risk-utility standard at issue herein, the seven "Wade factors," or certain of these factors, may be utilized. See J. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973). These factors, which the factfinder may balance to determine whether a product is defective, are:

(1)[t]he usefulness and desirability of the product - its utility to the user and the public as a whole.

(2)[t]he safety aspects of the product - the likelihood that it will cause injury, and the probable seriousness of the injury.

(3)[t]he availability of a substitute product which would meet the same need and not be as unsafe.

(4)[t]he 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)[t]he user's ability to avoid danger by the exercise of care in the use of the product.

(6) [t]he user's anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions.

(7)[t]he 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.

In light of our adoption of the composite approach to products liability, including both consumer expectations and risk-utility theories of recovery, it is clear, in my view, that governmental and industry standards may be relevant in resolving the question of whether a product design is unreasonably dangerous. Specifically, as we stated in Tincher, the character of the product and the conduct of the manufacturer are largely inseparable, calling for the introduction of standards and regulatory compliance when conduct is at issue. A product's failure to comply with governmental or industry standards alone may allow the jury to infer that a product design is unreasonably dangerous. If a product design departed from custom, it could be reasonably inferred that such variance rendered the product unreasonably dangerous and, thus, that the product was defective. Conversely, compliance with governmental or industry standards may shed light on the appropriate balance of safety risks and benefits regarding a manufacturer's design. Specifically, widespread industry adoption of safety features and compliance with OSHA safety mandates and voluntary safety standards could assist in determining a product's technological feasibility and its cost, both of which are relevant in comparing the product at issue with an alternative design. Thus, admitting evidence of governmental and industry standards may be relevant to the question of whether a product is defective.

Moreover, governmental and industry standards evidence should be admissible not only because of Tincher's reform of strict liability law, but because it is entirely consistent with, if not mandated by, our broad allowance for the admissibility of relevant evidence under our Pennsylvania Rules of Evidence. Specifically, in 1998, our Court approved the Rules of Evidence, and Rules 401 and 402, which codified a liberal approach to relevancy and admissibility. Critically, evidence is "relevant" if "it has any tendency to make a fact more or less probable than it would be without the evidence." Pa.R.E. 401(a) (emphasis added); Pa.R.E. 402; Commonwealth v. Yale, 249 A.3d 1001, 1022 (Pa. 2021). Thus, under Pennsylvania's broad relevancy rules, governmental and industry standards should be admissible in products liability design defect matters.

Additionally, the overwhelming majority of our sister states find governmental and industry standards evidence to be admissible. As set forth by amicus Product Liability Advisory Counsel, Amicus Brief at 3-12, the vast number of states regard compliance with mandatory governmental safety standards (44 states) and voluntary industry safety standards (46 states) to be relevant and admissible. By contrast, the OAJC's view, forbidding the admission of such standards, has been adopted by only one state - Montana. Indeed, Tincher's composite design defect standard was largely based upon California's similar test, and that state has held governmental and industry standards evidence to be admissible in strict liability litigation. See Kim v. Toyota Motor Corp., 424 P.3d 290, 299 (Cal. 2018) (holding industry custom may be relevant in a strict liability design defect case as it illuminates the relative complexity of design decisions and the tradeoffs frequently required in the adoption of alternative designs, as well as highlighting that a defendant has not implemented a safety feature that is standard in the industry).²

2 The concurrence suggests that I (1) rely "heavily" upon the California Supreme Court's decision in Kim; (2) that Kim is distinguishable because it involved "custom and usage" in the industry which is "due care" evidence; (3) that Kim "relied" on the Third Restatement; and (4) that Kim is contrary to our approach in Tincher. Concurring Opinion (Donohue, J.) at 7-8 n.11. Respectfully, the concurrence misapprehends my position. First, I cite to Kim merely to provide one of the many examples of the virtual unanimity of courts in allowing the admission of governmental and industry standards. Second, contrary to the seeming distinction the concurrence draws between industry and government standards and due care evidence, the Superior Court below, Appellees, and the OAJC all at least suggest that the admission of industry and governmental standard evidence goes to the question of due care. See Sullivan v. Werner Co., 253 A.3d 730, 747 (Pa. Super. 2021) ("Whether a manufacturer has complied with industry or government standards goes to whether it 'exercised all possible care in preparation of product' in making the design choice, not on whether there was a design defect in the product itself. . . . [I]t is irrelevant if a product is designed with all possible care, including whether it has complied with all industry and governmental standards."); Appellees' Brief at 24 ("The probative value of industry or government standards is to show that the manufacturer has used care in the preparation and sale of its product."); OAJC at 24 n.13 ("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"). Third, Kim did not rely on the Third Restatement, but merely noted that its conclusion was "consistent with the general approach taken in the [Third] Restatement." Kim, 424 P.3d at 299 n.5. Fourth, and finally, Kim is particularly relevant given the Tincher Court's explanation that, while not adopting the Third Restatement, "appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the postAzzarello paradigm." Tincher, 104 A.3d at 335. One of these areas of consideration was Tincher's adoption of a composite design standard, id. at 401, which was largely based upon California's composite design standard, id. at 402 (citing Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978)). It is under this same standard that, in California, governmental and industrial standards are admissible. Kim, 424 P.3d at 299.

Even more compelling, governmental and industry standards are admissible in a plaintiff's case. Gaudio v. Ford Motor Co., 976 A.2d 524, 544 (Pa. Super. 2009). In my view, it is patently unfair to allow such standards into evidence in a plaintiff's case, but not in the defense's case. If evidence of governmental and industry compliance was irrelevant to strict liability, then such evidence should be inadmissible for both plaintiff and defendant alike.

Finally, the OAJC's exclusion of governmental and industrial standards to defend against a defective product claim, at its core, reflects a mistrust of our jury system and suggests juries cannot understand these complex matters. Indeed, the OAJC's approach could actually cause jury confusion, as was evident in this case when the jury inquired about OSHA inspections of the scaffolding alleged by Appellees to be defective. See N.T., 5/9/19, at 142.

Our entire jury system relies upon the adversarial presentation of evidence and argumentation. It should be no different in the area of products liability. Of course, governmental and industry standards should be admitted only after a proper foundation has been laid, will be subjected to cross-examination and rebuttal, and the jury will be guided by appropriate instructions. But the jury should be allowed to decide the value, weight, and reliability of such evidence. Moreover, traditional safeguards against unfair prejudice, issue confusion, and the misleading of the jury would be available, on a case-by-case basis, just as in any other area of litigation. See Pa.R.E. 403.

In short, the demise of Azzarello, the substantive realignment of strict liability concepts articulated in Tincher, the liberal understanding of relevant evidence under our Rules of Evidence, the patent unfairness of permitting such evidence in the plaintiff's case but not the defense, and the lack of jury confusion with traditional safeguards of the admissibility of evidence, all support the admissibility of governmental and industry standards evidence in strict liability litigation to show a product is not defective.³

3 The concurrence, citing an "undeveloped evidentiary record and undirected advocacy," contends that Appellants failed to establish the relevance of industry standards and place into the record information regarding ANSI standards. Concurring Opinion (Donohue, J.) at 1, 4. It appears the concurrence is sub silento affirming on these alternative grounds, as neither the parties nor the lower tribunals make similar assertions.

Justice Brobson joins this dissenting opinion.