Aviation Law: Skywritings
No Reliance on Compliance: PA Supreme Court Decides That a Product’s Compliance with Industry or Government Standards is Not Admissible Evidence in Strict Products Liability Cases to Show a Product is Not Defective or Unreasonably Dangerous
By Lee C. Schmeer
A divided Pennsylvania Supreme Court recently reaffirmed over 50 years’ adherence to Section 402A of the Restatement (Second) of Torts and decided that evidence of conformance with industry or governmental standards may not be admitted in strict product liability cases to prove that a product is not defective or unreasonably dangerous. Sullivan v. Werner Co., 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023).
With one open seat on the PA Supreme Court, the case was decided by only six justices. The Opinion Announcing the Judgment of the Court (“OAJC”) announced the views of only three of the six justices; as explained below, there was one opinion concurring in the judgment only and two dissenting opinions. As a result, this important evidentiary issue could be raised again with the state’s highest court and with the possibility that the issue could be decided differently.
This evidentiary issue has been unsettled since the PA Supreme Court decided the Tincher v. Omega Flex case in 2014, 104 A.3d 328. The Tincher court found 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. However, the Tincher court did not decide whether evidence of compliance with industry and government standards was admissible in such a design defect case or address the continued viability of prior precedent about that evidentiary issue. In connection with the evidence necessary to prove a defective condition in a design defect case, the Tincher court held that the cause of action in strict products liability requires proof either of the ordinary consumer’s expectations or the risk-utility of the product.
Under either test, a plaintiff who reasonably used the product may prove liability even though the manufacturer exercised due care. Sullivan focused on the application of the risk-utility test, where a product is considered defective 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.” This risk-utility test examines the following factors, known as the “Dean Wade” factors:
• The product’s utility to the user and to the public as a whole;
• The likelihood the product will cause injury and probable seriousness of the injury;
• The availability of a safer alternative design;
• The ability to remove the alleged unsafe character of the product without impeding the product’s usefulness or making it too expensive to maintain its utility;
• The user’s ability to avoid danger by exercising care in use of the product;
• Then user’s anticipated awareness of the product’s danger through awareness of the obvious condition of the product or through warnings or instructions; and
• The feasibility of the manufacturer spreading the loss by setting the price of the product or carrying liability insurance.
In Sullivan, the plaintiff was injured at a jobsite when the platform of a six-foot tall mobile scaffold collapsed. The platform was secured by two spring-loaded deck pins that rotated to cover the platform once it was seated in the scaffold. Plaintiff alleged that a user could inadvertently rotate the pins during normal use, thus leaving the platform unsecured unbeknownst to the user. Plaintiff sued the manufacturer of the mobile scaffold and the entity that sold it in Philadelphia County state court.
The trial court permitted the jury to view the product at issue as well as similar products, but instructed the parties before permitting the viewings to obscure any product labeling relating to compliance with OSHA safety standards. During deliberations, the jury asked the judge a question relating to OSHA’s practices in inspecting products, but the trial judge instructed the jury not to consider OSHA in any way. The jury found for the plaintiff and awarded $2.5 million in damages.
The trial court denied the defendants’ motion for post-trial relief on the ground that they were improperly precluded from introducing compliance evidence, and the Pennsylvania Superior Court held that the trial court did not abuse its discretion in excluding this evidence.
In affirming the Superior Court, the Sullivan OAJC reasoned that compliance evidence is not evidence of the “underlying attributes of the product that make it compliant with regulations or standards,” but did note that evidence of the products attributes that made it compliant with standards could be admissible subject to the rules of evidence. (Justice Mundy wrote an Opinion in which two Justices joined, while one Justice concurred and two Justices dissented. Because no four Justices joined in a single Opinion, the court issued an OAJC, setting out the conclusion that four Justices ultimately reached, albeit under different rationales. The Court decided Sullivan with one open seat, as former Chief Justice Max Baer passed away before the case was argued. Chief Justice Baer’s replacement, recently-elected Justice McCaffery, had not yet joined the Court.) However, the OAJC stated that the mere fact that a product was deemed compliant with governmental or industry standards goes to the manufacturer’s or seller’s conduct, which remains inadmissible under Pennsylvania law, at least insofar as the manufacturer’s conduct is not covered under any of the Dean Wade risk-utility factors.
In other words, under the OAJC’s rationale, evidence that a standards-issuing organization considered the product safe and the opinion of the entity that deemed the product safe is not relevant to the risk-utility analysis. The OAJC expressed concern that consideration of such compliance evidence may result in a “sub-trial” as to the weight that should be accorded the fact that an organization found the product met a given standard, leading to juror confusion.
Ultimately, while the PA Supreme Court’s stated rationale in its prior Tincher opinion rejected a blanket exclusion of negligence concepts in strict products liability cases, Sullivan’s OAJC opinion rejected the applicability of negligence concepts in strict liability design cases when it comes to compliance evidence, explaining 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.” The OAJC rejected what it saw as the manufacturer-appellant’s attempt to have Pennsylvania adopt the Restatement (Third) of Torts, § 4, which allows evidence of compliance with an applicable product safety statute or regulation, but which does not preclude a finding of a defect despite compliance with such regulations. Two Justices joined Justice Mundy’s OAJC, while one Justice concurred, and one Justice joined Chief Justice Todd’s dissent.
In a concurring opinion, Justice Donohue focused on what she considered to be an “undeveloped evidentiary record and undirected advocacy in the trial court” in concluding that the complex issues in this case could not be resolved on the record before the Court. (Justice Donohue highlighted that the language of the applicable standards themselves were not it the record below, and contrasted a recent case from a jurisdiction outside Pennsylvania where evidence of the applicable standards was considered and admitted by the trial court.) She did, however, make clear that she agreed with the OAJC that “[strict products] 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…” (By joining in this rationale from the OAJC, Justice Donohue arguably rendered it precedential. Commonwealth v. Brown, 23 A.3d 544, 556 ((Pa. Super. 2011)) ((explaining that, although OAJC opinions do not have precedential value as a general matter because they are not joined by a majority of the Court, any portion of an OAJC opinion that is joined in a concurrence is precedential)).
Justice Donohue also was concerned a manufacturer that used a design that no other manufacturer utilized would be able to argue that the product was “by definition” not unreasonably dangerous if it complied with applicable industry or regulatory standards. Justice Donohue also outlined the type of evidence she would expect the parties to develop in any future case seeking to admit evidence of industry or government standards in strict liability design defect cases. For instance, Judge Donohue suggested that details such as the makeup of the committee adopting the standard (e.g., how many members represented industry, consumers, insurers, etc.) and whether the committee recommended a liberal interpretation of what products should be deemed compliant with the standard—evidence not in the Sullivan record—could be necessary to allow a jury to assign the proper weight to compliance evidence.
The dissent, authored by Chief Justice Todd, lamented that the OAJC “reject[ed] the sound approach taken by virtually all of our sister states,” found it “clear…that governmental and industry standards may be relevant in resolving the question of whether a product design is unreasonably dangerous,” argued that the OAJC’s decision betrays a mistrust of the jury’s ability to understand the issues underlying compliance with applicable standards and could confuse the jury (as occurred here) when the jury asks about compliance, and found the “character of the product and the conduct of the manufacturer  largely inseparable.”(Forty-four states admit evidence of compliance with mandatory governmental safety standards, and 46 states admit evidence of compliance with voluntary industry safety standards. Only one other state, Montana, flatly forbids evidence of such compliance.) Critically, the dissent pointed out that evidence of a product’s lack of compliance is admissible to show a defect, and the OAJC’s holding thus denied the defendant the benefit of showing the flip side of that scenario—a “patently unfair” tilting of the playing field. Finally, Chief Justice Todd wrote that the precedent on which the Sullivan majority anchored its decision (and which had not been addressed by the Tincher court) “should be expressly overruled.”
So where does PA law on this crucial evidentiary issue now stand today? We see three important observations for manufacturers defending design defect claims under PA law.
First, Sullivan continues a general trend in recent appellate decisions where Pennsylvania law is less favorable than other jurisdictions for manufacturer defendants. This trend is particularly concerning for those corporate defendants that have registered to do business in Pennsylvania— Sullivan follows closely on the heels of the U.S. Supreme Court’s decision in Mallory v Norfolk Southern Railroad Co., 600 U.S. 102 (2023), which held that Pennsylvania’s long-arm statute, which confers general personal jurisdiction over foreign defendants that have registered to do business in Pennsylvania, is constitutional. Under these circumstances, we should expect plaintiffs to continue to attempt to bring products liability claims in Pennsylvania when there is an arguable basis to do so.
Second, this case’s evidentiary rule has particular interest in the defense of aviation- related products liability cases, where the risk- utility test is the test most likely to be applied where the product at issue is sophisticated and typically used by trained, skilled individuals, and is not generally available off-the-shelf for purchase and use by the average consumer.
And third, as noted above, the door does not appear to be shut on bringing a future challenge to Sullivan’s evidentiary preclusion rule and to the pre-Tincher precedent on which the justices relied in reaching this decision. Justice Donohue’s concurrence arguably provides a roadmap for such a challenge and what will be needed in the trial court record. As a result, the issue of admissibility of compliance with industry or regulatory standards is open to further development under Pennsylvania law and likely will be before a future Pennsylvania Supreme Court for clarification.
Lee C. Schmeer is Senior Counsel in Victor Rane’s Philadelphia office. His practice is focused on defense of aviation and product liability cases. Lee also is an instructor pilot in the Air Force Reserves, where he flies the C-17 Globemaster III.
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Product Liability: An Update from the PLC
Evidence by eBay: Reanalyzing the Federal Rules of Evidence
By Edward R. Hugo & Bina Ghanaat
Do the antiquated Federal Rules of Evidence still apply to the reality of our times? Our last trial provided insight into that question. Specifically, the following was an attempt by plaintiff’s counsel to admit an instruction book, purchased on eBay, into evidence under one of the exceptions to the rule against hearsay.
Q: Now, in formulating your opinions concerning these Foster Wheeler boilers, have you also looked at instruction books, actually manufactured by Foster Wheeler?
A: I have.
Q: I will hand you what has (been) marked as Dennis Exhibit No. 246. Is this the type of book you have looked at and relied upon in the past?
A: It is.
Q: This one is dated -- it says Bulletin M 441, 44-1. (Freudian slip; the book is not dated.) It's the seventh edition, correct?
Q: Is this something that you have reviewed and relied upon?
A: I have.
MR. FROST: Your Honor, we would offer 246, the Foster Wheeler Marine Steam Generating Book.
THE COURT: Any objection?
MR. HUGO: I'm still trying to find it here. May I voir dire on that?
THE COURT: Pardon?
MR. HUGO: Voir dire.
THE COURT: On what?
MR. HUGO: How he knows this is, other than looking at it, it's a Foster Wheeler book.
THE COURT: You can cross him on it when the time comes, but you object to the exhibit itself?
MR. HUGO: Object to lack of foundation.
THE COURT: Lay a foundation for it.
BY MR. FROST:
Q: Captain Moore, in your study (of) asbestos and asbestos-related issues concerning boilers, have you been -- have you reviewed documents that purport to be from Foster Wheeler on their face?
Q: Have you actually looked at the document like the one I provided to you, of not photocopies, but the actual document itself, and reviewed and relied upon that in formulating your opinions?
A: I have.
Q: In regards to that particular document, that is during the time frame that these boilers would have been designed in the 1950s, correct?
A: So far, I don't think we found a date on this particular one.
Q: Do you see the signatures?
A: There is a handwritten signature on the bottom with a name and the date 8/23/53 on it.
Q: Is this the type of material that you have reviewed and relied upon in formulating your opinions?
A: It is.
Q: And does that also discuss type -- this type of boiler that we're discussing in this case?
A: The basic same type of boiler, yes, not exactly the same boiler.
Q: These types of materials, have you reviewed them and seen them when you were working in the shipping industry?
MR. HUGO: That is vague and overbroad, whether he reviewed these before litigation or not.
THE COURT: I will allow you to actually voir dire him on this. You are saying he looked at this.
MR. FROST: Your Honor, it's self-authenticating.
THE COURT: In what sense is this self-authenticating. Did you ever asking the defendant whether or not they are contesting authenticity?
MR. FROST: Your Honor, it's on the exhibit list.
THE COURT: I don't care whether or not it's on the exhibit list or not. Did you ever ask the defendant to acknowledge that this is in fact a document that came from them?
MR. FROST: I know their corporate representatives has been asked, Your Honor. I'm not sure if Mr. Hugo will concede it's their document. I have the original, that's why I brought the original.
THE COURT: Let me ask the defense.
MR. HUGO: I want to voir dire the witness on this.
THE COURT: All right. I will allow to you voir dire the witness on it, but on the issue of his foundation for the document.
MR. HUGO: That's all.
VOIR DIRE EXAMINATION
BY MR. HUGO:
Q: Are you telling me, sir, you read, relied, and considered that original book that is in front of you when you were working either in the Navy or Ingalls afterwards?
A: No, this was during asbestos litigation later.
Q: When you were paid by Mr. Frost to work as an expert?
A: Among other attorneys, that is correct.
Q: Where did you get this original document?
A: I have received copies of this document as discovery on various cases through the years.
Q: I'm asking you about the document that is in front of you or the photocopy of it. Other than getting from Mr. Frost, can you tell me where this came from?
MR. HUGO: Thank you.
BY MR. FROST:
Q: Sir, have you looked at the document?
A: I have.
Q: Does it appear to be a genuine and accurate copy of a Foster Wheeler manual that would have been produced in the 1950s?
A: It does.
Q: And you have seen photocopies produced in litigation by Foster Wheeler in the past of this document, correct?
Q: And even though we have the original right there, is any doubt in your mind?
THE COURT: Let me stop. Does the defense have an objection to the document?
MR. HUGO: Not being (the subject of an) admission, I object, lack of foundation.
MR. FROST: It's an ancient document, Your Honor. (FRE 803(16), discussed below.)
THE COURT: Let me just stop. This type of stuff needs to be resolved prior to trial. In other words, I have no doubt you have read it, I have no doubt you relied upon it. It's not been established that in fact this was a document that was created by Foster Wheeler at the time he purports -- he doesn't purport, your side purports that it was done. It would have been so easy to simply ask Foster Wheeler prior to this trial to admit that this was a document that was created by them in 1950. I don't understand why that wasn't done.
MR. FROST: Your Honor, it's an original document. It has been provided to them in discovery. I went and got an original copy.
THE COURT: That is something different. They provided this document to you in discovery in this case?
MR. FROST: No. They did not provide in this case, they have other cases, as Mr. Moore has testified to. The fact I went and got the original is actually to avoid this situation so you can look at it.
THE COURT: When you say you got the original, where did you go to get the original? You went to a library that had it? Did you write to Foster Wheeler for it? Did you look through the archives from some governmental agency? How did you get it?
MR. FROST: I went to E-bay. It's an original copy.
THE COURT: I will not allow it in if that's how you got it. I will not allow it in.
MR. FROST: Will you allow a photocopy of it?
THE COURT: I won't allow a photocopy. That is not how these things are done. One doesn't go to E-bay to find evidence in a case of this sort. It’s shocking in a way.
MR. FROST: Well, Your Honor, that is where you get original documents from.
THE COURT: I have never had -- I have been a judge for a long time, I have been a judge since 1990s, I have never had an item that supposedly comes from -- bought on E-bay. Unless the lawsuit is concerned about whether or not it was a valid document or product that was bought on E-bay, I have never had something like that in any case. The answer is no, it doesn't come in.
Trial transcript of Rosa Dennis v. Foster Wheeler, et al., Case No. CV 19-9343, U.S.D.C. – Central District of California (Trial Day 3 – November 9, 2023), at pp. 656:11- 662:14.
The Federal Rules of Evidence, Rule 803(16) provides as follows:
Rule 803 - Exceptions to the Rule Against Hearsay -- Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
. . .
(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
However, FRE 803(16) must be interpreted in conjunction with FRE 901(b)(8) (and FRE 901(a)), which states:
Rule 901 -- Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only -- not a complete list -- of evidence that satisfies the requirement:
. . .
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
Clearly, eBay does not qualify as a “place where, if authentic, [the instruction book] would likely be.” In fact, one could argue that the opposite is true!
Undeterred by the ruling excluding the document, plaintiff’s counsel filed a subsequent trial brief seeking the instruction book’s admission under FRE 902(7) which provides:
Rule 902 -- Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
. . .
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have affixed in the course of business and indicating origin, ownership, or control.
In response the trial court ruled as follows:
PROCEEDINGS: IN CHAMBERS - RULING ON PLAINTIFF’S OFFER OF PROOF ADMISSIBILITY OF EXHIBIT NO. 246
Plaintiff seeks to admit her Exhibit No. 246 which is a purported copy of a manual entitled “Foster Wheeler Corporation Instruction Book, Marine Steam Generators (7th Ed.)” which also includes a letter on Foster Wheeler letterhead to a supposed customer - where the Exhibit had been purchased on eBay by Plaintiff’s counsel. Plaintiff asserts that the Exhibit is admissible as a self-authenticating document under Fed. R. Evid. 902(7). Defendants have objected and the Court sustains the objection.
Rule 902(7) provides that self-authenticating items include “Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.” The “factors [that] justify dispensing with preliminary proof of genuineness of commercial and mercantile labels” is that the “risk of forgery is minimal” because “[t]rademark infringement involves serious penalties.” See Advisory Committee Notes, 1972 Proposed Rules.
However, Exhibit No. 246 is not a simple inscription or the like. It appears to be an instruction manual. As observed in Wright & Gold, 31 Federal Practice and Procedure: Federal Rules of Evidence § 7141 (2023), “[i]t should be clear that Rule 902(7) does not normally apply to documents, the origins of which usually are established by signatures or seals.” In Whitted v. General Motors Corp., 58 F.3d UWO, 1204 (7th Cir. 1995), it was held that “[t]he owner's manual is not a trade inscription and admitting the manual because it had a trade inscription on its cover does not comport with the rule.” While there are cases which disagree with the holding in Whitted - see, e.g., ACCO Brands, Inc. v. Pc Guardian Anti-theft Prods., 592 F. Supp. 2d 1208, (N.D. Cal. 2008), this Court finds Whitted and the quoted portion of Wright & Gold to be more persuasive.
If trials are a search for the truth, in-person trials with real evidence still beat virtual trials with evidence from eBay. The antiquated Federal Rules of Evidence need to be interpreted in light of the realities of our times.
Edward R. Hugo is a trial attorney, appellate lawyer, litigator and litigation manager for cases involving products and premises liability, toxic torts, environmental claims, construction defect, personal injury, wrongful death, insurance, professional negligence, sexual molestation and criminal law. He has also been retained as an expert witness and testified in trial, arbitration and deposition regarding: the duties of defense counsel, the effectiveness of defense strategies, the reasonableness of settlement values and defense costs, and insurance coverage issues.
Bina Ghanaat is a Partner with experience in toxic torts, insurance coverage, bad faith, habitability, and personal injury cases. She manages her cases from inception to resolution, handling discovery, depositions, law and motion, and trial preparation in state and federal courts. Ms. Ghanaat has defended a wide range of clients, including manufacturers, suppliers, contractors, insurance carriers, building owners, and trucking companies. She has drafted numerous motions for summary judgment that have resulted in dismissals of her clients or significantly reduced demands. She has also drafted and argued successful motions for summary adjudication as to punitive damages and various causes of action in asbestos matters venued in San Francisco and Alameda. For those cases in which a dispositive motion has not been viable, Ms. Ghanaat has prepared them for trial in an efficient manner with an emphasis on achieving optimal results for her clients. In Fall 2020, Ms. Ghanaat was co-counsel in one of the first “virtual” trials in Alameda County.
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