Assuming that the Third Circuit wouldn’t take an interlocutory appeal from Ford, which is arguing for the application of the Restatement (Third) of Torts in a case headed for trial next month, U.S. District Judge Arthur Schwab of the Western District of Pennsylvania denied the car company’s motion for a stay.

Schwab, who is handling the case, intends to stick with his decision to apply the Restatement (Second) of Torts because the Pennsylvania Supreme Court hasn’t yet adopted the new Restatement, although the U.S. Court of Appeals for the Third Circuit has predicted that it would since 2009. Since then, there have been differing opinions from district court judges about which standard properly applies in products liability cases tried in diversity jurisdiction.

"Ford’s attempt to have this case stayed to certify this case for an interlocutory appeal, which the United States Court of Appeals for the Third Circuit is unlikely to grant, is a delay tactic by a corporate entity that has the financial resources to litigate this matter for years at the trial and appellate levels," Schwab said in Gilmore v. Ford Motor. He noted that the march to trial is well under way, with pretrial statements and jury instructions already submitted, so granting Ford its pursuit of changing the Restatement wouldn’t simplify the issues to be submitted to the jury.

Beyond that, on the issue of a stay, Schwab said, "This delay would unduly prejudice plaintiffs, the estates of two tragically deceased teenagers, who do not have the same resources as Ford."

Last week, Schwab denied Ford’s motion for reconsideration on his choice of Restatement, eschewing the Third Circuit’s repeated forecasts that the state Supreme Court would adopt the new Restatement for the high court’s actual holding.

"This court is free to stand by its position that Beard v. Johnson & Johnson is contrary to Covell v. Bell Sports," Schwab said in that opinion, citing the Pennsylvania Supreme Court’s 2011 opinion in which it declined to adopt the new standard for torts and the Third Circuit’s 2011 opinion in which it, for the second time, predicted that the state Supreme Court would adopt the Restatement (Third).

Ford relied on an order that the federal appeals court issued en banc last fall in Sikkelee v. Precision Airmotive in which it declined to accept an interlocutory appeal from a defendant arguing against the district court’s application of the Restatement (Second), but clarified that federal district courts sitting in diversity jurisdiction are to apply the Restatement (Third) of Torts.

"The order by the United States Court of Appeals for the Third Circuit in Sikkelee was nonprecedential, and this court is not bound by nonprecedential decisions," Schwab said in his opinion issued last week.

In the opinion issued this week, he said, "Ford argues that certification for an interlocutory appeal should be granted."

"However, the United States Court of Appeals for the Third Circuit declined to allow an interlocutory appeal on the same issue," Schwab said, referring to Sikkelee, a case stemming from an airplane crash.

"Ford makes no attempt to argue that the facts of this case are so different from those in Sikkelee that the United States Court of Appeals for the Third Circuit would choose to grant leave to appeal this court’s decision to apply the Restatement (Second) when the Court of Appeals did not do so when presented with the same issue," Schwab said. "Thus, there is a very low probability that the United States Court of Appeals for the Third Circuit would agree to hear the appeal."

Neither Jarrod Takah of Tershel & Associates in Washington, Pa., who is representing the plaintiffs, nor Nancy Winschel of Dickie, McCamey & Chilcote in Pittsburgh, who is representing Ford, could be reached for comment.

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

(Copies of the five-page opinion in Gilmore v. Ford Motor, PICS No. 13-0598, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •