After the U.S. Court of Appeals for the Third Circuit declined to consider a district judge’s opinion that the Restatement (Second) of Torts, not the Restatement (Third), applies to products liability law in Pennsylvania, defense lawyers in an airplane crash case said they were left wondering which source of law should apply.

But a plaintiffs lawyer in the case of Sikkelee v. Avco said he interpreted the Third Circuit’s decision not to take an interlocutory appeal of U.S. District Judge John E. Jones III of the Middle District of Pennsylvania’s decision as an endorsement.

“In reality, declining an interlocutory appeal is not a vividly clear statement,” said plaintiffs attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt in Williamsport, Lycoming County. “It would certainly suggest the appellate court does not have a problem with the trial court’s view or does not see the issue as any sort of immediacy.”

Judges Dolores K. Sloviter and Joseph F. Weis Jr. denied the appeal, while Judge D. Michael Fisher would have granted the petition. The panel’s September 14 order cited the two Third Circuit opinions in which the appeals court predicted the Third Restatement would become the law in Pennsylvania, Covell v. Bell Sports and Berrier v. Simplicity Manufacturing, as well as the state Supreme Court decision in Beard v. Johnson & Johnson, in which Pennsylvania’s high court did not expressly adopt the Third Restatement.

But the Supreme Court did acknowledge that strict-liability design defect law is in a “state of disrepair” and the Third Restatement assigns the balancing of a product’s risk and utility to a jury.

“I think [there's] a reasonable argument to be made the Third Circuit sub silentio is recognizing that the fact that the Pennsylvania Supreme Court has not availed itself of the opportunity to agree with the Third Circuit,” Rieders said.

The defense attorneys on the other side disagreed.

Catherine Slavin and Sara Anderson Frey, defense attorneys with Cozen O’Connor representing Avco, filed a petition for “panel clarification or rehearing en banc” on the denial of permission to appeal.

In their petition, the attorneys said that, because the panel cited its prior precedent that they assume the panel stated “this court’s decisions in Berrier and Covell still governs and that the district court should apply the Restatement (Third).” But “the denial order arguably could be read — in declining to allow an appeal where the lower court did not follow Covell and Berrier — as agreeing with the district court’s assessment of the current state of the law,” the petition said.

The Avco defense lawyers also cited the fact that other district courts have differed from Jones.

“The applicable tort standard should not be dependent on judicial assignment,” the defense petition said.

Slavin declined comment.

Pennsylvania products liability lawyers have told The Legal that the law is unpredictable, conflicted and in disharmony between the federal and state courts. The conflict has arisen because the Third Circuit has twice opined in the last three years that the Supreme Court is likely to adopt provisions of the Third Restatement. The Supreme Court has not squarely dealt with the issue, including one case in which the justices said they improvidently granted allocatur to consider whether Section 2 of the Third Restatement should replace Section 402A of the Second Restatement.

In a July 3 opinion, Jones opined that the “Third Circuit’s prediction in Covell is binding upon federal district courts sitting in diversity absent an affirmative indication from the Pennsylvania Supreme Court that it intends to retain the Restatement Second as the law in Pennsylvania. In our opinion, this indication was provided in Beard v. Johnson & Johnson, where the Pennsylvania Supreme Court took notice of the continuing state of disrepair in the arena of the Pennsylvania strict-liability law and nonetheless declined to take the opportunity to replace the Restatement Second with the Restatement Third.”

But U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania has twice opined that because the Supreme Court in Beard did not “affirmatively disavow the premise of the Covell decision,” and because the Third Circuit’s decisions are binding on district courts, that the Third Restatement applies in federal court.

And U.S. District Judge A. Richard Caputo of the Eastern District of Pennsylvania said in Giehl v. Terex Utilities that “once the Third Circuit predicts how the state’s highest court would resolve an issue, district courts are bound by this prediction.”

But U.S. Magistrate Judge Henry S. Perkin of the Eastern District of Pennsylvania said in Carpenter v. Shu-Bee’s that the Second Restatement applied.

A products liability lawyer who is not involved in Sikkelee said that he “suspects the Third Circuit has the same view” it has always had.

The Third Circuit’s ruling “doesn’t change anything,” said Christopher S. D’Angelo, a partner with Montgomery McCracken Walker & Rhoads. “It’s a non-event in the issue of the current disputes between the Third Circuit and the state court.”

Section 402A of the Second Restatement states that liability ensues for any defective product that is unreasonably dangerous to the product’s user. Section 2 of the Third Restatement brings in concepts of negligence by stating that a product is defective in design or because of inadequate warnings when foreseeable risks of harm could have been reduced.

Amaris Elliott-Engel can be contacted at 215-557-2354 or Follow her on Twitter @AmarisTLI.