Academic journal article Defense Counsel Journal

IADC Amicus Brief Program

Academic journal article Defense Counsel Journal

IADC Amicus Brief Program

Article excerpt

The International Association of Defense Counsel has an active amicus curiae program, submitting briefs on issues of importance to IADC members and their clients. Through its amicus participation, the IADC has helped shape the law surrounding product liability, arbitration, class actions, attorney client privilege, punitive damages, civil discovery, standing, jurisdiction, and tort reform. This section of the Defense Counsel Journal is dedicated to highlighting recent amicus briefs filed by the IADC so that the Journal's readers can benefit from the insights presented therein.

In its brief in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), IADC filed an amicus brief recommending that the Pennsylvania Supreme Court abandon its unworkable strict products liability framework in favor of the more balanced approach of the Restatement (Third) of Torts: Products Liability. The Brief was authored by IADC Member Joseph O'Neil and Thomas J. Finarelli of Lavin O'Neil Cedrone & DiSipio, William J. Ricci of Ricci Tyrrell Johnson & Grey, and Scott Toomey of Littleton Joyce Ughetta Park & Kelly LLP. IADC Member William Conroy of Campbell, Campbell, Edwards & Conroy was attorney of record for the defendant

For nearly forty years, Pennsylvania juries hearing design defect cases were instructed that the manufacturer is the guarantor of product safety, that the product must have "every element necessary to make it safe for its intended use," and that the product should be "without any condition that makes it unsafe for its intended use." This standard resulted in an uneven playing field for manufacturers. In November 2014, the court decided against adopting the Restatement Third approach, but it squarely rejected the most troubling features of the old regime. In their place the court chose to provide two tests, consumer expectation and risk/utility, which would allow a plaintiff to show defect by proving either that I) the danger is unknowable and unacceptable to the average or ordinary consumer, or 2) a reasonable person would conclude the probability and seriousness of harm caused by the product outweigh the burden or cost of taking precautions.

IN THE SUPREME COURT OF PENNSYLVANIA

No. 17 MAP 2013

TERENCE D. TINCHER and JUDITH R. TINCHER

v.

OMEGA FLEX, INC.

Appellant

Appeal from the Order of the Superior Court of Pennsylvania dated September 25,2012 affirming the Judgment of the Chester County Court of Common Pleas, Civil Division, dated June 1, 2011

BRIEF OF AMICI CURIAE PENNSYLVANIA DEFENSE INSTITUTE AND INTERNATIONAL ASSOCIATION OF DEFENSE COUNSEL IN SUPPORT OF APPELLANT

Scott Toomey, Esquire

Littleton Joyce Ughetta Park & Kelly LLP

201 King of Prussia Road, Suite 220

Radnor, PA 19087

(484) 254-6220

and

William J. Ricci, Esquire

Thomas Finarelli, Esquire

Lavin, O'Neil, Ricci, Cedrone & DiSipio

190 N. Independence Mall West

6th and Race Streets

Philadelphia, PA 19106

(215)627-0303

Joseph E. O'Neil, Esquire

Lavin, O'Neil, Ricci, Cedrone & DiSipio

190 N. Independence Mall West

6th and Race Streets

Philadelphia, PA 19106

(215) 627-0303

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICI CURIAE 1

STATEMENT OF JURISDICTION 2

ORDER IN QUESTION 2

STATEMENT OF THE STANDARD AND SCOPE OF REVIEW 2

STATEMENT OF THE QUESTION INVOLVED 2

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT 3

ARGUMENT 5

The source of the confusion: Azzarello v. Black Brothers 8

The available solution: Restatement Third 14

Adoption of the Third Restatement position should have retroactive effect 17

CONCLUSION 20

TABLE OF AUTHORITIES

Cases

Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978) passim

Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009), cert, denied, 558 U. …

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