Evidence of Compliance with Industry and Government Standards are Inadmissible in Pennsylvania Product Liability Cases

Evidence of Compliance with Industry and Government Standards are Inadmissible in Pennsylvania Product Liability Cases

In Sullivan v. Werner Co., 2021 PA Super 66, 253 A.3d 730 (2021, aff’d, 306 A.3d 846 (Pa. 2023), the Pennsylvania Supreme Court held that evidence of compliance with industry and government standards are inadmissible in product liability cases. 

Michael Sullivan was seriously injured at a job site when the platform of a six-foot tall mobile scaffold collapsed, causing him to fall to the ground. The platform of the scaffold was secured to the frame by two spring-loaded deck pins that the user rotated to cover the platform after it was seated in the scaffold. Sullivan brought a strict liability action against Werner Company (Werner) and Lowe’s Companies, Inc. (Lowe’s), alleging that the mobile scaffold system was defectively designed because it was possible for a user to inadvertently rotate the deck pins off the platform during normal use.  

Before trial, Sullivan filed a motion in limine to preclude Werner from admitting into evidence any industry or government standards showing that the scaffold met federal Occupational Safety and Health Administration (OSHA) regulations and American National Standards Institute (ANSI) standards.  

At trial, the jury asked the trial court if OSHA inspected every product that is put on the market, especially those with patent. The trial court responded that it could not answer that question, and instructed the jury not to consider OSHA in any way during its deliberations. The jury was permitted to physically inspect an exemplar scaffold that was introduced as evidence during trial; however the OSHA and ANSI standard stickers were concealed. Ultimately, the jury found New Werner and Lowe’s liable on the design defect claim and awarded Sullivan $2.5 million in damages. On appeal, the Superior Court affirmed the trial court’s decision to exclude compliance evidence. 

On appeal to the Supreme Court, the Court reaffirmed that Pennsylvania has adopted Section 402A of the Second Restatement of Torts as the law of strict products liability, citing Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014); Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966). Section 402A provides: 

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if  

(a) the seller is engaged in the business of selling such a product, and  

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.  

(2) The rule stated in Subsection (1) applies although  

(a) the seller has exercised all possible care in the preparation and sale of his product, and  

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 

According to the Court’s holding in Tincher: 

• a seller of a product has a duty to provide a product that is free from a defective condition unreasonably dangerous to the consumer or the consumer’s property;  

• to prove a breach of this duty, a plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a defective condition; 

• the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product; 

• under the consumer expectations test, the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer; 

• under the risk-utility test, a product is in a defective condition 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. 

The Court noted that the Tincher Court discussed the case of Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 528 A.2d 590, 594 (Pa. 1987) wherein the Court concluded that compliance evidence was not relevant to the condition of the product and therefore inadmissible in strict liability actions; that the proper focus of a design defect case is on the characteristics of the product and not the conduct of the manufacturer in choosing the design. However, the Court in Tincher did not overrule Lewis or decide whether evidence of compliance with industry and government standards was admissible in a design defect case. Later, in Webb v. Volvo Cars of North America, 148 A.3d 473 (Pa. Super. 2016), the Superior Court concluded there was no justification post-Tincher to abandon the prohibition on evidence of government or industry standards. 

Ultimately, the Supreme Court agreed with the court in Lewis and Webb, concluding that evidence of industry standards and a product’s widespread design within an industry go to the reasonableness of the defendant’s conduct in making its design choice, and that such evidence would have improperly brought into the case concepts of negligence law. The Court further explained that compliance evidence does not prove any characteristic of the product; rather, it diverts attention from the product’s attributes to both the manufacturer’s conduct and whether a standards-issuing organization would consider the product to be free from defects, which are not relevant to a risk-utility analysis.  

The Supreme Court of Pennsylvania’s opinion in Sullivan v. Werner Co., 2021 PA Super 66, 253 A.3d 730 (2021, aff’d, 306 A.3d 846 (Pa. 2023) can be accessed here.