Pennsylvania law of strict liability has recently been judicially described as being in a “state of flux” in Sikkelee v. Precision Airmotive, 2012 U.S. Dist. LEXIS 91497, 26 (M.D.Pa. 2012). Other courts have been less gracious, using phrases such as a “maze of uncertainty,” in Sansom v. Crown Equipment, 2012 U.S. Dist. LEXIS 102734, 11 (W.D. Pa. 2012), “foundational problems,” in Schmidt v. Boardman, 608 Pa. 327, 353, 11 A.3d 924, 940-41 (Pa. 2011), and “almost unfathomable” and “continuing state of disrepair” in Beard v. Johnson & Johnson, 41 A.3d 823, 836 (Pa. 2012).
Pennsylvania courts have long adhered to the Restatement (Second) of Torts §402A for the doctrine of strict liability in tort. However, with the recent promulgation of the Restatement (Third) of Torts, Sections I and II, there has been a growing tension between the state and federal courts in Pennsylvania. Before analyzing the current case law and the effects thereof, it will be helpful to review the significant language of the respective Restatements.
Section 402A defines strict products liability in tort as:
“(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 … if (a) a 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.”
By way of contrast however, in pertinent part, Section II of the Restatement (Third) reads as follows:
A product “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.”
The U.S. Court of Appeals for the Third Circuit in two recent opinions has addressed the issue of whether it should apply the Restatement (Second) or (Third) when sitting in diversity jurisdiction in Pennsylvania, which is a challenge because the Pennsylvania Supreme Court has yet to affirmatively state that it has adopted the Restatement (Third). This debate began with Berrier v. Simplicity Mfg., 563 F.3d 38 (3d. Cir. 2009). In Berrier, the Third Circuit forecast the route of the future of Pennsylvania strict products liability law by predicting that the Pennsylvania Supreme Court, if presented with the opportunity, would abandon Pennsylvania precedent of following the Restatement (Second) in favor of the Restatement (Third).
Berrier was issued while the Pennsylvania Supreme Court was presented with just that opportunity in Bugosh v. IU North America, 942 A.2d 897 (Pa. 2008). However, the court dismissed the appeal as improvidently granted and avoided adopting the Restatement (Third). Shortly after Berrier, federal trial courts within the Third Circuit began to split on which Restatement to follow.
The Pennsylvania Supreme Court had another opportunity to address the issue in Schmidt. In that case, Justice Thomas G. Saylor noted the need to resolve the uncertainty in the law, yet declined to rule directly on the issue, stating “this case was not selected to address the foundational concerns, and, accordingly, the pathways to global resolution are not developed in significant detail in the briefing,” which now leaves the “present status quo in Pennsylvania to entail the continued application of Section 402A of the Restatement (Second).” This opinion would appear to indicate that, as of 2011, Pennsylvania courts should continue to follow the Restatement (Second).
Subsequent to Schmidt, however, the Third Circuit held in Covell v. Bell Sports, 651 F.3d 357 (3d Cir. 2011), that a defendant in a products liability case may rely on evidence that a product satisfied the standards of the U.S. Consumer Product Safety Commission. In this opinion, the Third Circuit, following Berrier, applied the Restatement (Third) and again predicted that if presented with the opportunity, the Pennsylvania Supreme Court would adopt the Restatement (Third).
Under the Restatement (Third), sellers are liable for injury resulting from the sale of products that are “defective.” A product is defective if it meets one of three sets of criteria. This criteria incorporates negligence concepts and includes concepts such as “foreseeable risk” and “care” in the definition of “defective.” In Pennsylvania state court, where current Pennsylvania Supreme Court case law dictates that the Restatement (Second) of Torts be followed, evidence or use of negligence concepts in a products liability action is precluded.
Covell reaffirms the Third Circuit’s earlier ruling in Berrier, where that court predicted that the Pennsylvania Supreme Court was prepared to abandon the Restatement (Second) in favor of the Third.
Earlier this year, the Pennsylvania Supreme Court was presented with another opportunity to confirm what the Third Circuit had predicted regarding its adoption of the Restatement (Third) in Beard. In that case, the Pennsylvania Superior Court had held that in design defect cases involving multi-use medical devices, trial courts are not limited to considering the particular use at issue when conducting a risk-utility analysis. Rather, the Superior Court held that the trial court is bound to consider all of the uses of the device as part of its risk-utility analysis. The Pennsylvania Supreme Court affirmed the appellate court’s holding, but again avoided adopting the Restatement (Third) in the opinion authored by Saylor. Notably, the court recognized “the continuing state of disrepair in the arena of Pennsylvania strict liability design defect law,” but noted that there was no majority consensus on the issue.
To further highlight the issue, despite the Third Circuit’s decision in Covell, in Sikkelee, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania applied the Restatement (Second) instead of the Restatement (Third), and stated 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, where the Pennsylvania Supreme Court took notice of the ‘continuing state of disrepair in the arena of Pennsylvania strict-liability’ law and nonetheless declined to take the opportunity to replace the Restatement (Second) with the Restatement (Third).”
A very recent Pennsylvania federal court opinion addressing the issue of what law to apply in products liability cases came from the U.S. District Court for the Western District of Pennsylvania August 16 in Lynn v. Yamaha Golf-Car, 2012 WL 3544774 (W.D.Pa.2012). This decision concluded the opposite of Sikkelee. In Lynn, the plaintiff (a minor) was injured after being thrown from a golf cart manufactured by the defendants. The court held that because the Pennsylvania Supreme Court had declined to expressly rule contrary to the Third Circuit’s adoption of the Restatement (Third) in Beard and also failed to reject the Third Circuit’s predictions in Covell, it would apply the Restatement (Third) to determine the products liability issues of the case.
A final example of a federal case highlighting the state of confusion in products liability law can be found in the U.S. District Court for the Eastern District of Pennsylvania case of Carpenter v. Shu-Bee’s, 2012 U.S. Dist. LEXIS 94447 (E.D. Pa. 2012). In Carpenter, U.S. Magistrate Judge Henry S. Perkin noted that in light of Justice Max Baer’s “express observation in Beard that the ‘current law of Pennsylvania … is Section 402A of the Restatement (Second),’ we agree … that ‘the Third Circuit’s prediction in Covell assumed the formation of a consensus that has not yet crystallized’ and will apply the Restatement (Second) of Torts.”
Having now reviewed the language of the Second and Third Restatements and the analysis of the issues by various state and federal courts in Pennsylvania, what then are the practical results of this lack of clarity?
It can be argued that the Third Restatement, at least in one respect, is more plaintiff friendly in its clear inclusion of bystander liability. The language of the Second Restatement limits its scope to intended users or consumers only. An argument can also be made that the Third Restatement favors plaintiffs in that it may supersede the learned intermediary doctrine and permit suits against pharmaceutical manufacturers that have conducted direct-to-consumer advertising. However, the primary thrust of the Restatement (Third) reinjects principles of negligence into the formerly sacrosanct negligence-free zone of strict products liability. Examples of negligence concepts in the Restatement (Third) are that a reasonable alternative design need be proven by the plaintiff and that it is conduct oriented on behalf of the defendant as opposed to the Second Restatement being exclusively product oriented, with conduct not being an issue to be considered at trial. In addition, foreseeability concepts are made a part of the Restatement (Third),which in turn imports the relevance of industry standards, which were not permissible as evidence in a Second Restatement-based case.
Perhaps the best explanation of what the Third Restatement will do to Pennsylvania law is that it will then become a regime of “negligence-friendly products liability,” according to Covell.
From the standpoint of a practitioner, the burden is now on counsel for the plaintiff to understand, analyze and explain to a client the difference in how the case will be proven depending upon whether it’s in state or federal court. This makes drafting the complaint and any battles over removal and remand extremely significant, because the case outcome may vary dramatically depending upon the courthouse in which the case is tried. Not only will there be substantive law differences whether the case is in state or federal court, but it now appears that these differences will arise even within the federal courts, with variations occurring depending on the district where the case is venued.
Marc P. Weingarten is a partner in the Locks Law Firm in Philadelphia. He’s certified as a civil trial specialist by the National Board of Trial Advocacy and has been awarded a fellowship in the National College of Advocacy. He is a member of the board of governors of the American Association for Justice. He can be reached at 215-893-3404 or email@example.com.
Priscilla E. Jimenez is an associate at the firm and works on personal injury, pharmaceutical litigation, products liability and medical negligence and malpractice cases. In addition to being a member of the Hispanic National Bar Association, she also serves as a director on both the board of the Hispanic Bar Association of Pennsylvania and the HBA of PA’s Legal Education Fund board. She can be reached at 215-893-3420 or firstname.lastname@example.org.