By Max Mitchell
Of the Legal Staff
An amicus curiae in a high-profile products liability case has asked the state Supreme Court to hear its separate arguments in the case even though the justices heard from both the plaintiffs and defendant during an oral argument session more than a month ago.
The Pennsylvania Association for Justice made the unprecedented request of the high court in Tincher v. Omega Flex on Nov. 25. Through its application for relief, the PAJ argued that counsel for the plaintiffs had conflicting interests and failed to stick to the positions outlined in its appellate brief.
The case is believed to be the test case for whether the courts will adopt what some see as the more defense-friendly Restatement (Third) of Torts, or continue using the Restatement (Second) of Torts, which is thought to be more favorable to plaintiffs.
Writing the brief on behalf of the PAJ, Clifford A. Rieders, of Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt & Dohrmann, contended that Cozen O’Connor, which was counsel for the Tinchers, was conflicted because the firm had argued for the application of the Third Restatement in previous cases.
“The position urged at argument by counsel for the Tinchers represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by amicus curiae PAJ,” Rieders said in the brief. “A broader interest exists, however, on behalf of injured consumers in product liability cases, which deserves vigorous representation before this court.”
The brief further contended that attorney Mark Utke, who argued the case for the plaintiffs before the high court, strayed from the appellate brief when he conceded during the session that the court did not need to uphold its 1977 ruling in Azzarello v. Black Brothers, which upheld the Second Restatement.
In Azzarello, the court found that the phrase "unreasonably dangerous" in the Second Restatement did not refer to issues of negligence and determined that considerations of negligence are inappropriate in a strict liability case. Plaintiffs and defense counsel agreed during oral arguments that Azzarello went too far in its attempt to protect plaintiffs, and should be reversed.
“The impact of a court decision reversing Azzarello or abandoning the Restatement Second Section 402A is so significant that it should not be determined based upon a subrogation case essentially ‘owned’ by [an] insurance company and argued by one who is not committed to consumer protection policies,” Rieders said.
Tincher involves a couple that sued the flexible natural-gas piping company Omega Flex because electricity from a lightning strike burned a hole in the Omega Flex gas pipe installed at their home and then allegedly caused the house to burn down. According to court papers, the jury found in favor of the couple on a strict liability claim, not a negligence claim.
According to the PAJ brief, USAA Insurance Co. compensated the Tinchers for their damages and brought the suit seeking reimbursement from Omega Flex.
Max Mitchell can be contacted at 215-557-2354 or email@example.com. Follow him on Twitter @MMitchellTLI.