Pennsylvania adopted the Restatement (Second) of Torts to address strict products liability claims over 50 years ago but continues to flip-flop on whether to allow product manufacturers to defend themselves using compliance with industry and government standards as evidence to demonstrate their products are neither defective nor unreasonably dangerous. The evidence necessary to prove a defective condition in a design defect case may be demonstrated under either a “consumer expectations test” or a “risk-utility test.” The Pennsylvania Supreme Court’s recent decision in Sullivan v. Werner Co., 2023 WL 8859656 (Pa. Dec. 22, 2023) squarely rejects the use of industry or governmental standards as relevant proof to defend against strict product liability claims under Pennsylvania law in design defect cases pursued under a risk utility theory, and perhaps also under the consumer expectation test. It once again places Pennsylvania in the distinguished position of being decidedly pro-plaintiff for purposes of product liability cases.
By way of brief background, Sullivan v. Werner involved a mobile scaffold system, with allegations that it was defectively designed because “it was possible for a user to inadvertently rotate the deck pins off the platform during normal use.” The mobile scaffold itself met federal Occupational Safety and Health Administration (OSHA) regulations and American National Standards Institute (ANSI) standards. Certification stickers confirming compliance with these OSHA regulations and ANSI standards were clearly marked and present on the product. Before trial, a motion in limine to preclude evidence of compliance with industry or government standards was heard and granted. Accordingly, the jury did not hear any evidence concerning the manufacturer’s compliance with any industry or government standards, and the defendant manufacturer and retailer were found liable pursuant to plaintiff’s design defect claim.
While never an absolute defense for product manufacturers, compliance with government and industry standards provided a possible defense for a court or jury to consider in strict product liability cases venued in Pennsylvania, until recently.
On December 22, 2023, the Pennsylvania Supreme Court issued its decision Sullivan v. Werner. The court’s controlling decision reflects the views of only three of the six justices and, therefore, is referred to within the decision as the “Opinion Announcing the Judgment of the Court” or the “OAJC.” The OAJC “conclude[d] that evidence of compliance with industry standards is inadmissible under the risk-utility test in strict products liability cases” involving design defects. According to the OAJC, the proper focus in a design defect case is on “the characteristics of the product and not the conduct of the manufacturer.” The OAJC further held compliance evidence is not “pertinent” under the risk-utility test and only serves to “divert the jury’s attention from the relevant inquiry.” Interestingly, while barring their use by defendant manufacturers, the OAJC’s decision does not prevent a plaintiff from relying on such compliance evidence to prove strict product liability claims.
Unanswered in the Sullivan v. Werner decision is the issue of whether compliance evidence will be allowed as a defense in strict product liability cases that proceed under the consumer expectations test. Although not addressed specifically in the decision, the OAJC explained that “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”—suggesting that evidence of compliance with industry or governmental standards may also be found inadmissible in strict liability cases advanced under a consumer expectation test.
Justice Donahue filed a concurring opinion. Her concurrence is significant for at least three reasons. First, Justice Donahue concluded that in her 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.” Second, while she was “in agreement with many of the principles advanced” by the OAJC, she was “not fully convinced” concerning the OAJC’s conclusion “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.” In Justice Donahue’s view, whether evidence of compliance with industry or governmental standards may be used “to establish lack of a defect in the design of its product is more nuanced” than portrayed by the OAJC—which she found to be the result of “deficienc[ies] in the Manufacturers’ argument in opposition to the motion in limine” giving rise to the trial court’s order being reviewed on appeal. Indeed, Justice Donahue pointed to a recent decision in another jurisdiction “shed[ding] light on relevancy considerations important to a decision on the admissibility of ANSI standards in a strict liability design defect case.” Third, Justice Donahue concluded the record was “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 . . . whether the product was unreasonably dangerous.” Accordingly, Justice Donahue’s concurrence represents the vote necessary to prevent a deadlocked Pennsylvania Supreme Court. Her concurrence is a concurrence only as to the results of the particular case before her. This raises the distinct possibility of a future case being decided differently.
Chief Justice Todd filed a dissenting opinion in which Justice Brobson joined. The dissent emphasizes compliance with governmental or industry standards “may be relevant in resolving the question of whether a product design is unreasonably dangerous,” explaining that “compliance with governmental or industry standards may shed light on the appropriate balance of safety risks and benefits regarding a manufacturer’s design,” in some cases. The dissent further explains that “[(i)] widespread industry adoption of safety features and [(ii)]compliance with [(a)] OSHA safety mandates and [(b)] voluntary safety standards[,] could assist in determining a product’s technological feasibility and its cost[.]” Notably, the dissent advocates that both those factors are relevant in comparing the product at issue in a strict product liability case with an alternative design proposed by a plaintiff and, therefore, such evidence should not be excluded.
In particular, the dissent is critical of permitting governmental and industry standards to be placed into evidence by a plaintiff but not a defendant. The OAJC’s decision is “patently unfair” and pursuant to the dissent “[i]f evidence of governmental and industry compliance was irrelevant to strict liability, then such evidence should be inadmissible for both plaintiff and defendant alike.”
The Sullivan v. Werner decision is another clarion call to the plaintiff’s bar. Pennsylvania continues to provide a more conducive environment for those seeking to assert strict product liability claims. It is undisputed that Pennsylvania courts have refused to move towards the Third Restatement of Torts, which expressly permits a product’s compliance with statutes and/or regulations. Instead, Pennsylvania has now become an extreme minority state (together with Montana) by generally forbidding defendants from raising compliance with voluntary industry or mandatory government standards when courts/juries consider whether a product is defectively designed.
The Sullivan v. Werner decision is just one recent example of Pennsylvania setting itself apart from most other states. The U.S. Supreme Court’s recent decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122, 143 S. Ct. 2028 (2023) is another example. In the Mallory decision, the U.S. Supreme Court addressed Pennsylvania’s law allowing out-of-state companies registered to conduct business in Pennsylvania to be sued pursuant to the state’s consent-by-registration law. Put another way, by registering to do business in the state, companies agreed to personal jurisdiction. The U.S. Supreme Court found that statute constitutional—again, making Pennsylvania a more friendly state for filing claims.
Will Pennsylvania see a corresponding influx of claims filed in their courts? Will these decisions potentially result in a further backlog of cases in Pennsylvania courts? These are just two of the likely consequences. Tort reform through the Pennsylvania legislature is another possibility. The concurring opinion in the Sullivan v. Werner decision, however, also raises the possibility that these same issues concerning admissibility of industry or government standards will be raised again and decided differently by a future Pennsylvania Supreme Court.