Sullivan v. Werner Co., 253 A.3d 730; 2021 Pa. Super. LEXIS 210 (April 15, 2021) (Pellegrini, J.) Michael Sullivan (Sullivan) and Melissa Sullivan, his wife, brought this strict products liability action after he fell through a scaffold made by Werner Company (Werner) and sold by Lowe’s Companies, Inc. (Lowe’s) (collectively, Manufacturer). A jury determined that a design defect caused the accident and awarded Sullivan $2.5 million in damages. On appeal, Manufacturer raises three challenges. First, Manufacturer alleges that the trial court erred in precluding industry standards evidence. Second, Manufacturer asserts that it should have been allowed to argue that Sullivan’s negligence was the sole cause of the accident. Third, Manufacturer challenges Sullivan’s mechanical engineering expert, arguing that both his opinion testimony and videotaped testing lacked a proper factual foundation. We affirm. Manufacturer first contends that the trial court erred in precluding evidence that the scaffold complied with government and industry standards. Manufacturer asserts that it should have been permitted to introduce evidence of other scaffolds with deck pins similar in design to those used in its scaffold. While the parties generally agree that this evidence was inadmissible under long-standing Pennsylvania case law, they differ over what effect the Pennsylvania Supreme Court’s decision in Tincher had on the evidentiary prohibition against government and industry standards evidence in strict liability cases.
In finding that the putative industry standards evidence was insufficient, we observed that the Webb panel concluded that Tincher, despite overruling Azzarello, did not provide a sufficient basis for disregarding the Lewis/Gaudio evidentiary rule “that a product’s compliance with government standards is irrelevant and inadmissible in a strict products liability action.” Id. at 1072. In particular, we noted, the Webb panel concluded that Tincher did not undermine the Lewis rationale for the industry standards prohibition, specifically, that a product could be defective yet still widespread in an industry. Id. at 1073. As a result, Dunlap agreed with the trial court that the plaintiff firefighters needed more evidence on the effectiveness of the alternative design beyond that it met industry standards. Id. We note, though, that the issue in Dunlap was not whether industry standards evidence is admissible, but whether the plaintiffs had made out a prima facie case that a safer alternate design was available to the manufacturer. Having reviewed the relevant Pennsylvania case law, we make a few observations. First, notwithstanding suggested interpretations of Tincher that would make products liability law negligence-based on the due care of the manufacturer in designing or manufacturing the product, strict liability is still the standard to be used in determining whether a product is “unreasonably dangerous” in Pennsylvania. Under the Restatement (Second) § 402A formulation, a product can be designed and manufactured with “all possible care” but still be defective. Manufacturer liability then depends on the product’s dangers, not on the reasonableness of the manufacturer’s conduct in designing or manufacturing the product. Manufacturer next contends that the trial court erred in instructing the jury that it could not consider whether Sullivan was negligent in determining defectiveness or causation. By so instructing, Manufacturer asserts, the trial court prevented it from arguing that Sullivan was the sole cause of the accident. Manufacturer insists that the trial court should have allowed them to argue that Sullivan was negligent for failing to properly seat the platform within the side rails and engage the deck pins, as this is the only explanation for how the accident could have happened. Accordingly, there are limited exceptions to when the plaintiff’s conduct may be relevant, including “evidence of a plaintiff’s voluntary assumption of the risk, misuse of a product, or highly reckless conduct is admissible insofar as it relates to the element of causation.” Clark v. Bil-Jax, Inc., 2000 PA Super 370, 763 A.2d 920, 923 (Pa. Super. 2000) (quoting Charlton v. Toyota Industrial Equipment, 714 A.2d 1043, 1047 (Pa. Super. 1998)). Unlike these exceptions, “evidence of a plaintiff’s ordinary negligence may not be admitted in a strict products liability action … unless it is shown that the accident was solely the result of the user’s conduct and not related in any [way] with the alleged defect in the product.” Id. Put differently, “a user’s negligence is not relevant if the product defect contributed in any way to the harm.” Madonna, 708 A.2d at 509. We agree with the Manufacturer to the extent that a defendant can admit evidence and argue that a plaintiff’s ordinary negligence was the sole cause of an accident in a strict product’s liability case. Manufacturer, however, ignores that this is allowed only when the accident was “not related in any with the alleged defect in the product.” Clark, supra. Manufacturer, though, premises its theory of Sullivan’s negligence on their contention that he failed “to properly assemble the product and/or seat the platform within the side rails, then engage the deck pins[.]” Manufacturer’s Brief at 47. As a result, Manufacturer’s claim fails by its own terms because the alleged negligence directly relates to the product itself and how Sullivan assembled it, including the alleged defective deck pins and platform. Put another way, Manufacturer’s theory of negligence – that Sullivan did not properly assemble the scaffold – did not preclude the possibility that a product defect contributed to the accident. Accordingly, the trial court did not err in preventing Manufacturer from arguing that Sullivan’s conduct was the sole cause of the accident. We also find the trial court did not abuse its discretion in instructing the jury it could not consider Sullivan’s conduct, as it accurately explained the law based on its holding as to negligence. The Supreme Court of Pennsylvania is going to hear the matter.
