Lizzy McLellan, The Legal Intelligencer
January 20, 2015
In denying a post-trial motion from defendant Ford Motor Co., the Lackawanna County Court of Common Pleas not only upheld a $5.9 million verdict, but also seized the first known opportunity at the trial court level to apply and clarify precedent from Tincher v. Omega Flex, a recent Supreme Court decision that cleared the decks for products liability case law.
In Cancelleri v. Ford Motor, a crashworthiness case, Judge James A. Gibbons on Jan. 9 denied Ford’s motion, in which it asked for a judgment notwithstanding the verdict or, alternatively, a new trial. Gibbons also granted the plaintiffs’ motion for delay damages and taxable costs, bringing the new total award to nearly $6.3 million.
“In short, Ford asks us inventively to enter a JNOV in its favor or award it a new trial based predominantly on malfunction issues that the jury was ultimately not asked to decide and concepts of the Third Restatement,” Gibbons wrote. “Because we decided the former in compliance with the law and because adoption of the latter was expressly rejected by our Supreme Court, Ford’s post-trial motion is denied in its entirety.”
The Cancelleri opinion is the first case at the trial court level to apply the Tincher ruling, several products liability attorneys said.
“Judge Gibbons’ opinion might serve other judges and the bar to help figure out the … opinion issued in Tincher,” said Daniel E. Cummins of Foley, Comerford & Cummins in Scranton, Pa. “It’s a good, concise recitation.”
James M. Beck of Reed Smith, however, disagreed with parts of the opinion that cited Tincher, particularly where it rejected Ford’s argument that evidence of industry standards should have been allowed.
“[The court] was determined to uphold this verdict,” Beck said.
Either way, Cancelleri is just one of many opinions yet to come that will scrutinize products liability law post-Tincher, observers said.
“Both plaintiffs attorneys and defense attorneys claimed victory from the Tincher decision, which in and of itself tells how uncertain it is,” said Cummins.
John and Rosetta Cancelleri sued Ford and Ray Price Motors Inc. in 2011, following a 2010 accident in which John Cancelleri suffered injuries including a herniated disc, spinal cord compression and lower extremity paralysis, Gibbons said.
According to Gibbons’ opinion, the case resulted in a jury verdict in favor of the Cancelleris. The jury found that the airbag and restraint system in Cancelleri’s 2005 Mercury Sable was defectively designed in that the airbag did not deploy during a crash, and that the defect caused his injuries, Gibbons said.
However, Ford argued that there was not enough evidence to sustain the plaintiffs’ crashworthiness and malfunction claims, nor Rosetta Cancelleri’s loss of consortium claim, the opinion said.
Alternatively, Gibbons said, Ford argued that it should get a new trial because the court allegedly made a variety of errors.
But, Gibbons said, the Cancelleris proved their claim under the crashworthiness doctrine, a subset of strict products liability law. He first defined the standards for strict liability according to Tincher.
“We first acknowledge that our Supreme Court has recently held that a plaintiff pursuing a cause upon a theory of strict liability in tort, such as the design defect theory under the crashworthiness doctrine or the malfunction theory, must initially ‘prove that the product is in a “defective condition,”‘” Gibbons said. “The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.”
Because the Cancelleris’ case involved a crashworthiness claim, Gibbons relied more on Gaudio v. Ford, a crashworthiness case, than on Tincher.
However, the recent products liability case did make its way into Ford’s arguments for a new trial, which pointed to a slew of alleged errors by the court.
Specifically with regard to issues addressed in Tincher, the defendant said the court erred by precluding industry standards evidence under either the Second or Third Restatement, and by giving jury instructions that included language from Azzarello v. Black Brothers.
Ford argued that by overturning Azzarello, the Supreme Court said it was wrong to exclude industry standards evidence. But, Gibbons wrote, the Tincher decision did not address the consequences of declining to adopt the Third Restatement in terms of laws, regulations and industry standards. So, he wrote, it remains proper to apply the Second Restatement to industry standards evidence.
Ford also pointed to use of the words “guarantor” and “every element” in the jury instructions used in Cancelleri as a “fundamental error” that necessitates a new trial. However, Gibbons said, the particular elements of the instructions dealing with design defect standards were based on Gaudio, which has not been overruled, and Ford was not prejudiced by the instructions on the whole.
Bruce S. Zero and James F. Mundy of Powell Law in Scranton represented the Cancelleris.
Mundy said the Tincher decision turned out to not greatly affect the outcome of the case, but it could have changed his approach at trial because of the consumer expectation theory.
“I really think that the test suggested by Tincher to be used by plaintiffs is a much easier test to pass,” he said. “Under the new test we wouldn’t have had to bring in all the experts.”
William J. Conroy, Tiffany M. Alexander, Emily J. Rogers and Katherine A. Wang of Campbell, Campbell, Edwards & Conroy in Berwyn, Pa., represented Ford and Ray Price Motors.
Reading a statement on behalf of Ford, Alexandersaid the company is disappointed with the court’s decision and plans to appeal.
Second Chance for
With Ford’s plan to appeal, it’s possible that the case could eventually end up before the Supreme Court, Cummins said. He added that the court could have two or three new justices by the time it would get the case, and if that were to happen, he said, it could bring the Second Restatement and Third Restatement to the justices for consideration once again.
“It’s Ford Motor Co. on the other side. They have the resources to take it all the way,” Cummins said. “Who knows what the future holds if this case makes its way all the way up to the Supreme Court.”
Beck predicted the Superior Court will take the case on appeal.
“The two Tincher issues will undoubtedly be taken up,” he said. “They’re obviously good grounds for a reversal argument.”
Alan M. Feldman of Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock, & Dodig said a decision like Gibbons’ suggests that “Tincher did not rewrite the law,” and some elements of previous products liability law may remain. The change may not be as drastic as some defense attorneys suggest, he said, but the Supreme Court decision at least opened the door for their arguments.
“Tincher is so broadly written and it contains so little in the way of definitive guides and instructions on how to proceed that there’s room for everyone to make all sorts of arguments,” Feldman said.
Judges will not be able to ignore the new Supreme Court precedent going forward, he said, but it’s too early to predict what approach they will take off of a single case, especially one that deals more with crashworthiness specifically.
But “it’s an opinion I would use next time I try a case,” Feldman said. “It will help frame the debate about just what kinds of changes Tincher made.”