In the most ironic of ironies, Pennsylvania products liability law is defective and malfunctioning itself given the confusion in the federal courts over whether the Restatement (Second) of Torts or the different analysis set forth in the Restatement (Third) of Torts should be utilized in such cases. This uncertainty is the cause of an ever-growing split of authority not only between the Pennsylvania state and federal courts, but also amongst, and even within, the different federal district court branches across the state.
The Pennsylvania Supreme Court itself recently noted that this area of the law is in a "continuing state of disrepair." (See Beard v. Johnson & Johnson, 41 A.3d 823, 836 (Pa. 2012).) The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in any given case.
Which standard is applied by a court in products liability cases could make or break a case. Generally speaking, with its emphasis on strict liability concepts, the Restatement (Second) standard favors plaintiffs while the Restatement (Third) analysis, with its infusion of negligence principles of law, generally offers greater protection to defendants from an automatic finding of liability.
Eastern District of Pennsylvania
In the March 2010 decision Hoffman v. Paper Converting Machine, 694 F. Supp. 2d 359, 364-65 (E.D. Pa. 2010), Judge Petrese B. Tucker of the Eastern District Court of Pennsylvania, noting that, as of that time, the Pennsylvania Supreme Court had dismissed the appeal in Bugosh v. I.U. North America, 942 A.2d 897 (Pa. 2008),without deciding the issue, opted to follow the U.S. Court of Appeals for the Third Circuit’s reference to the Restatement (Third) in Berrier v. Simplicity Manufacturing, 563 F.3d 38 (3d Cir. 2009), as "binding precedent." In so ruling, Tucker cited Richetta v. Stanley Fastening Systems, 661 F.Supp.2d 500 (E.D. Pa. 2009 Golden, J.), and Martinez v. Skirmish U.S.A., Civil Action No. 07–5003 (E.D. Pa. 2009 Padova, J.), with approval.
The Third Circuit’s prediction on the adoption of the Restatement (Third) was also followed in the Eastern District by Judge William H. Yohn Jr. in Xia Zhao v. Skinner Engine, 2:11-CV-07514-WY (E.D. Pa. 2012), and by Judge Mary A. McLaughlin in Kordek v. Becton, Dickinson & Co., Civil Action No. 10–7040 (E.D. 2013).
Other judges in the Eastern District of Pennsylvania have come to the contrary decision that Section 402A of the Restatement (Second) remains the law of Pennsylvania in light of the fact that the Third Circuit’s prediction that the Pennsylvania Supreme Court will adopt the Restatement (Third) as the law of the land has not come to pass. (See Thompson v. Med-Mizer, 10-CV-2058 (E.D. Pa. 2011 Gardner, J.), which held that "this court is not required to follow the Third Circuit’s prediction where ‘the state’s highest court issues a decision contradicting that prediction or state intermediate appellate court’s decisions subsequently indicate that prediction has not come to pass.’")
Eastern District Magistrate Judge Henry S. Perkin also referred to the Restatement (Second) analysis in the case of Carpenter v. Shu-Bee’s, CIV.A. 10-0734 (E.D. Pa. 2012 Perkin, M.J.).
Middle District of Pennsylvania
Federal judges in the Middle District of Pennsylvania have also split on the issue of which Restatement should be adopted in products cases. Middle District Judge A. Richard Caputo has repeatedly ruled that, based upon thepronouncement in Covell v. Bell Sports, 651 F.3d 357, 365 (3d Cir. July 12, 2011), that Berrier remains the controlling formulation of the law for district courts in the Third Circuit, and given that the Pennsylvania Supreme Court has not issued a decision to the contrary, the Restatement (Third) of Torts should be applied in Pennsylvania products liability cases as repeatedly predicted by the Third Circuit. (See Vaskas v. Kenworth Truck, 3:10 CV-1024 (M.D. Pa. 2013 Caputo, J.); Giehl v. Terex Utilities, CIV.A. 3:12-0083 (M.D. Pa. 2012 Caputo, J.).)
Meanwhile, Judge John E. Jones III of the Middle District issued a contrary decision in the case of Sikkelee v. Precision Automotive, 876 F.Supp.2d 479 (M.D.Pa. 2012), in which he chose to instead follow the Restatement (Second) in products liability cases contrary to the Third Circuit’s predictions. In Sikkelee, Jones respectfully noted that federal district courts are not required to follow predictions by the Third Circuit that do not appear to have been realized in state court precedent.
In the appeal of Jones’ decision in Sikkelee, the Third Circuit again noted in its own en banc decision denying a petition for clarification on the appeal that federal district courts in Pennsylvania should continue to apply the Third Restatement.
Western District of Pennsylvania
This split of authority is also evidenced in the Western District of Pennsylvania. Those Western District judges who have presently chosen to follow the Restatement (Second) in products liability cases contrary to the Third Circuit’s analysis include Judge Nora Barry Fischer in Gross v. Stryker, 858 F.Supp.2d 466 (W.D.Pa. 2012), and Judge Arthur J. Schwab in Konold v. Superior International Industries, No. 12-CV-1347 (W.D.Pa. 2012), Schiff v. Hurwitz, No. 12-CV-0264 (W.D.Pa. 2012), and, most recently, Gilmore v. Ford Motor, No. 2-12-CV-00547 (W.D.Pa. 2013).
The Western District judges who have chosen to instead apply the Restatement (Third) under the Third Circuit’s predictions in the Berrier and/or Covell decisions include Judge Mark R. Hornak in the cases of Sansom v. Crown Equipment, Civil Action No. 2:10–CV–0958 (W.D.Pa. 2012), and Lynn v. Yamaha Golf-Car, Civil Action No. 2:10–CV–01059 (W.D.Pa. 2012), along with Judge Donetta W. Ambrose in Zollars v. Troy-Built, Civil Action No. 10–924 (W.D.Pa. 2012), and Judge Maurice Cohill Jr. in Spowal v. ITW Food Equipment Group, C.A. 10-187, ECF No. 52 (W.D.Pa. 2012).
Pennsylvania State Courts
With the law being in a state of flux and the federal court decisions creating a maze of uncertainty, litigants are required to continually monitor the status of this issue with the Pennsylvania Supreme Court in order to determine how this issue may ultimately play out.
As noted above, the most recent, on-point pronouncement by the Pennsylvania Supreme Court on the Restatement debate is the court’s decision in Beard, in which the court reiterated, as it has since 1966, that the standards set forth in Section 402A of the Restatement (Second) of Torts are to be applied in Pennsylvania products liability cases.
In a more recent decision in the case of Reott v. Asia Trend, 55 A.3d 1088 (Pa. Nov. 26, 2012), a shorthanded Pennsylvania Supreme Court issued a 5-1 decision (Justice Joan Orie Melvin did not participate) in which the majority, in an opinion written by Justice Max Baer, relied in part upon Section 402A.
Accordingly, the Reott decision can be read as lending further support to the proposition that the Restatement (Second) remains the law of the land in Pennsylvania products cases.
The Pennsylvania Supreme Court has previously granted allocatur to hear the appeal in the case of Lance v. Wyeth, 15 A.3d 429, 430 (Pa. 2011), in which it may have yet another opportunity to squarely address the Restatement issue. The hope remains that the Wyeth court will tackle and finally resolve the issue once and for all when it announces its decision.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.