It’s finally here: Tincher v. Omega Flex, the Pennsylvania Supreme Court’s overhaul of strict liability. If you’re unfamiliar with the recent turbulence surrounding strict liability, check out this post of mine from July 2012, which will take you all the way from Webb v. Zern, 220 A.2d 853, 854 (1966) to Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Tincher is a foundational opinion, one that resets the landscape of strict liability and puts it on a more secure and coherent framework for the future.
The 137-page majority opinion written by Chief Justice Castille may become his magnum opus. It rises swiftly into the high politics of separation of powers (pp. 29–37), unearths the half-century-old foundations of strict liability in Pennsylvania (pp. 37–57), reviews the entirety of the precedent (pp. 57–74), explains the practical problems of the doctrine as used today (pp. 74–84), outlines the conceptual framework for strict liability (pp. 84–107), and charts the path forward (pp. 107–137).
It even quotes David Hume (p. 38) and includes a sly reference to Einstein’s dual theories of relativity (p. 110, criticizing the Third Restatement as having “general and special rules” for different types of products, rules that together fail to “state a general principle of liability consistent with the public policy that compensation is available for an injury caused by any type of defective product”).
The opinion is also unanimous, given that the whole court joined it, although Justice Saylor wrote and Justice Eakin joined a two-page “concurring and dissenting” opinion. Justice Saylor says that, if “left to [his] own devices,” he would adopt the product liability segment of the Third Restatement of Torts — an approach the majority opinion he joined eviscerated (pp. 33-37, 107-117), concluding it was “unmoored from guidance upon the broader legal issue,” making it at best “a superficially enticing option” that “risk[s] elevating the lull of simplicity to doctrine.” Slip op. at 116 (quoting Scampone). Frankly, I don’t see the incongruous ‘concurring and dissenting’ opinion having much impact going forward.
The majority opinion admits that it is part of an “incremental approach,” and that much lies ahead in “the development of strict liability law in Pennsylvania.” Slip op., p. 116. So let’s roll up our sleeves and figure out how to best apply the case going forward.
Predictably, the defense bar, the big corporate manufacturers, and the insurance companies have started claiming that Tincher actually adopted the Third Restatement by stealth, that this stunning reaffirmation of the purpose of strict liability and of the role of the jury as ultimate fact-finder is somehow favorable for them. See, e.g., Ballard Spahr, Morgan Lewis, and, of course, Drug and Device Law. We’ll come back to them.
Here are the five key points I’ve drawn from the opinion: