Post Tincher Case Seeks to Distinguish Threshold Determination in Defective Design Versus Failure to Warn Cases

This blog is by way of update to my previous blogs regarding the Pennsylvania Supreme Court’s clarification in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) that the Restatement (Second) of Torts still applies to products liability cases.  The Tincher Court, in overruling Azzarello v. Black Bros. Co., 390 A.2d 1020 (Pa. 1978), held that the threshold determination in a defective design case is an issue for the fact finder, not a question of law for the Court to determine.

But, since Tincher was a defective design case, the question apparently remains whether or not Tincher’s analysis will apply in a failure to warn case.  One trial court had decided it does not.  In Hatcher v. SCM Group North America, Inc. (Civil Action No. 2:15 CV1630, E.D. Pa. March 1, 2016), the Court held that because Tincher did not address a failure to warn defect, pursuant to Mackowick v. Westinghouse Electric Corp., 575 A.2d 100 (Pa. 1990) the threshold determination of adequacy of warning remains a question of law for the Court, and granted summary judgment.

We will continue to follow the Tincher progeny.

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