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The products liability bar has resigned itself to the confused state of the law in Pennsylvania since the rift between the state and federal courts emerged about five years ago.

But as the bar awaits a decision from the state Supreme Court as to which standard will apply to products liability cases in the state, both sides are hoping for clarity.

That clarity could come from the court’s decision in Tincher v. Omega Flex, which was argued last October and addresses the question of whether the Restatement (Third) of Torts or the Restatement (Second) is the law in Pennsylvania.

Pennsylvania products liability law has maintained a rigid distinction between strict liability and negligence since the 1970s, when the Supreme Court established in Azzarello v. Black Brothers that the supplier of a product is the guarantor of its safety, emphasizing that negligence and strict liability are to remain separate.

“Pennsylvania is the Lone Star State,” in how far it has taken the distinction between negligence and strict liability, said Aaron Twerski, a professor at Brooklyn Law School who worked on the Third Restatement, which suggested major changes to the American Law Institute’s previous treatise, the Second Restatement.

“The court’s going to have to do something,” Twerski said of the Pennsylvania Supreme Court in its decision in Tincher. “They’re not going to go back to Azzarello, that’s my guess,” he said.

Twice the Pennsylvania Supreme Court has declined to adopt the new Restatement when it has been presented with the question, but the U.S. Court of Appeals for the Third Circuit has predicted that the state court would make the move, starting in 2009 with the Third Circuit’s decision in Berrier v. Simplicity Manufacturing.

Federal trial court judges have differed on which standard they are to follow—that of the state Supreme Court or the Third Circuit.

Although most judges in the federal trial courts apply the Third Restatement, lawyers work as though either Restatement could apply, said Barbara Gotthelf, a partner at McCarter & English who practices products liability defense in both state and federal court.

At the summary judgment stage or in a dispositive motion, Gotthelf briefs the issue of why the court should apply the Third Restatement, she said.

The defense bar typically favors the Third Restatement, which allows for the foreseeable risks of harm from a product to be addressed and whether an alternative design could have minimized or eliminated that risk.

Defense attorneys who spoke with The Legal agreed that, if defense attorneys are not already pushing for the courts to apply the Third Restatement, they should be.

“Each individual defense attorney is, or should be if they’re not already, advocating for the adoption of the Third in their legal papers,” said Jeremy D. Mishkin of Montgomery McCracken Walker & Rhoads. “Certainly good defense counsel should be actively advocating it, and I think, in most cases, they are.”

This entails not only advocating for the application of the Third Restatement at the outset, but also making sure the issue is preserved at every level.

“Every defense counsel worth their salt in state court preserves the issue,” said defense attorney James M. Beck of Reed Smith, adding that plaintiffs attorneys are likewise diligent to preserve the issue when they litigate cases in federal court.

According to Beck, defense attorneys typically prefer to have their cases in federal court, but the ambiguity has led many defense attorneys to double their efforts.

“The uncertainty leads to the preservation of the issue on appeal, where otherwise it would be a settled issue,” Beck said. “It puts a substantive gloss on what ordinarily should be a procedural question of whether it should be in state or federal courts.”

Daniel E. Cummins of Foley, Comerford & Cummins noted the Restatement split, not only between state and federal courts, but also between judges—especially in the Middle and Western District courts.

According to Cummins, defendants will tailor what they put in the pleadings and decide whether to pursue summary judgment motions depending on the judge assigned to the case.

“If you’re in front of a judge that has already ruled in [favor of the Second Restatement], first you must try to convince the judge he or she should apply [the Third Restatement], and then push your argument ahead in that regard,” he said. “Plaintiffs are still pleading in a shotgun approach of any claims that they can pursue.”

Beck said there will likely be a lot of reversals regardless of which way the Supreme Court rules on Tincher. Having the law finally settled could lead many parties to have easy ground for a new trial, which could create an incentive for attorneys to keep their cases alive as long as possible, he said.

“When you have the situation where this matter is pending, it encourages a party to keep their case alive on appeal,” he said.

Beck added that because the courts are mulling whether to apply a standard that is generally more onerous to plaintiffs, the uncertainty is in the defendants’ advantage, and may have led to a decline in settlement amounts.

“It’s an additional uncertainty that the plaintiffs would have to deal with,” Beck said.

“The state of flux of the law has had some impact, and we’re all waiting to see what the Pennsylvania Supreme Court is going to do,” Cummins said. “The hope is we have a full panel of Supreme Court justices, and not another 3-to-3 split.”

Adopting the Third Restatement would be the cleanest avenue to take, Gotthelf said, but the Supreme Court might instead amend its approach to the Second Restatement. If that’s the case, she said, “I hope that they make it clear. … We’re all just really hoping for clarity.”

Conventional wisdom among the plaintiffs bar is, and has been, that the Second Restatement is more beneficial to those filing suit, according to Kline & Specter co-founder Thomas R. Kline.

However, Kline said determining whether the Second or Third Restatement is more beneficial depends greatly on the theory of each case.

“Plaintiffs prefer Restatement (Second) and the knee-jerk reaction of the defense bar is the Restatement (Third), but it’s not that simple,” Kline said. “There are nuances to this whole thing.”

The Second Restatement provides an easier burden of proof for the plaintiff in terms of strict liability, Kline noted. While the burden of proof is higher with the Third Restatement, Kline said it opens up the path to pursue different angles in a case in the way that it focuses more on the foreseeable harm of a defective product, not just whether the product is unsafe for its intended use.

Simply put, a plaintiff would have to prove that a manufacturer knew about the defect in question and chose not to act. That, Kline said, allows the plaintiff to pursue corporate negligence claims that can lead to punitive damages.

He added that the Third Restatement could be beneficial to plaintiffs in terms of bystander liability as well. For example, a case focusing on the defect itself would be best suited for a Second Restatement jurisdiction, but in a case where it is not obvious whether the injured party was the intended user of the product, Kline said a Third Restatement approach might be more beneficial because of its focus on foreseeable misuse of the product.

All in all, if Pennsylvania state courts were to adopt the Third Restatement, “it would not be doomsday but would actually provide an opportunity for a plaintiff to prove misconduct where the door is not currently open and actually may lead to development of corporate misconduct and punitive damage theories,” he said.

Cozen O’Connor attorney Mark Utke, who represents the plaintiff in Tincher, did not share Kline’s view on the potential advantages of the Third Restatement.

This is primarily because plaintiffs have to prove that there were safer alternatives that a manufacturer could have developed to the defective product, Utke said, essentially forcing plaintiffs to “re-engineer” the product.

“In the Third [Restatement] you’re making the hurdle so high for [plaintiffs] to reach, you have to re-engineer,” for example, an “automobile and show how they could make it safer. It’s expensive,” Utke said. “What happens to plaintiffs in asbestos cases, when there was no safe alternative at the time?”

Utke called the Third Restatement “pro-manufacturer” and said, “It would be a disincentive for plaintiffs and plaintiffs law firms to pursue products liability actions.”

Dianne Nast of NastLaw also said the Third Restatement tips the balance in favor of defendants.

Additionally, Nast said defense attorneys have used the threat of an impending decision by the state to adopt the Third Restatement to try to force plaintiffs into prompt settlement.

“Defendants make a point of saying … ‘you better hurry up and do something because the Pennsylvania Supreme Court is going to change things,’” Nast said.

Kline, Utke and Nast all said the Third Circuit’s repeated predictions that the state Supreme Court will adopt the Third Restatement have most likely not affected the court’s decision in Tincher.

Kline said, “I can tell you that I have little doubt the court will, in their own fiercely independent way, decide the issues as they see them and not as the Third Circuit predicted.”

In Bugosh v. I.U. North America, the state Supreme Court’s last encounter with the question of whether to adopt the Third Restatement, which was dismissed as being improvidently granted, Nast said the court received a great deal of pressure “from defense-based organizations filing amicus briefs and, if it didn’t impress them that much a few years ago, I don’t know how much it will impress them now.”

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDannunzioTLI.