appeal appellate court reverse or affirm outcome from lawsuit
appeal appellate court reverse or affirm outcome from lawsuit ()

It’s been more than six months since the state Supreme Court heard oral arguments about whether to adopt the Restatement (Third) of Torts, and no decision appears to be forthcoming; however, attorneys who spoke with the Law Weekly say they aren’t worried that the time gap is a signal of deadlock.

“It’s sort of like a Magic 8 Ball,” said Jeremy D. Mishkin of Montgomery McCracken Walker & Rhoads. “The reply is: ‘Hazy. Try again later.’”

In October, the Supreme Court heard arguments in Tincher v. Omega Flex, which is believed to be the test case for whether Pennsylvania courts will adopt what some see as the more defense-friendly Restatement (Third) of Torts, or continue using the Restatement (Second) of Torts, which is thought to be more favorable to plaintiffs.

Most of the attorneys contacted agreed that a more-than-six-month wait period is not surprising, especially given the importance of the case.

“It’s just a matter of the court using the time it deems necessary,” said Joseph E. O’Neil of Lavin, O’Neil, Cedrone & DiSipio. “It goes to show this is an important case, and I’m sure that the court is taking its time.”

O’Neil noted that decisions in Barnish v. KWI Building and p, both of which dealt with products liability, took more than a year to decide.

“I know that the Supreme Court has a big caseload and it’s a complicated issue,” said Daniel J. Mann of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig.

While attorneys agreed that six months was too soon to start worrying, most agreed that the decision should be issued before the end of the year.

Mark E. Utke of Cozen O’Connor, who represented the plaintiffs, said that he had not been expecting the decision within six months.

“At this point it could be a matter of weeks, or months,” Utke said. “I would think before the end of the year is a pretty good bet.”

One event that could put pressure on the court’s decision is the retirement of Chief Justice Ronald D. Castille, who is scheduled to retire at the end of the year. But even that is not a strict deadline.

“There’s no deadline, but I would think they would want to decide it before the composition of the court has to change,” said defense attorney James M. Beck of Reed Smith. “My guess is that, since it’s such an important decision, the chief would want to decide on it, since it was argued on his watch.”

Robert L. Byer, head of the appellate practice at Duane Morris in Pittsburgh, agreed.

“The only deadlines on the Supreme Court decisions are deadlines the court has set,” Byer said. “The court does its best to comply with those. Sometimes cases, particularly those that deal with issues like this, take a little longer. As a litigant, you want it sooner, rather than later, but as someone not involved, you’d like the court to take as long as it needs to get the best opinion possible.”

Tincher involves a couple who sued the flexible natural-gas piping company Omega Flex because electricity from a lightning strike burned a hole in the Omega Flex gas pipe installed at their home and then allegedly caused the house to burn down. According to court papers, the jury found in favor of the couple on a strict liability claim, not a negligence claim.

The Third Restatement allows arguments on the foreseeability of a product’s risk and requires a plaintiff to establish that an alternative, safer design was viable when the product was manufactured, effectively opening the door for defendants to insert issues of negligence into products liability litigation. The Second Restatement focuses litigation on the characteristics of the products, and does not allow a fact-finder to consider the manufacturer’s conduct, or the feasibility and practicality of an alternative design.

While Mann said that in the years leading up to the Tincher argument, the high court has continued to uphold the Second Restatement, and Mishkin said that the law has started shifting to recognize flaws in the Second Restatement, all attorneys agreed that accurately predicting how the Supreme Court will rule is nearly impossible.

There has been confusion in recent years regarding what the standard will be for products liability cases in Pennsylvania. The confusion has been driven in part by the federal courts—particularly the U.S. Court of Appeals for the Third Circuit—predicting the state would adopt the Third Restatement. However, the Pennsylvania Supreme Court has given little indication that it will.

In the 2011 ruling in Covell v. Bell Sports and the 2009 ruling in Berrier v. Simplicity Manufacturing, the Third Circuit predicted that the state Supreme Court would adopt the Third Restatement. While most district court judges have followed the Third Circuit’s lead, some have applied the Second Restatement.

In the 2012 ruling in Reott v. Asia Trend, the Supreme Court arguably favored the Second Restatement when it voted 5-1 that “highly reckless” conduct is an affirmative defense in products cases.

According to Beck, the one element that the court will likely reject is the current precedent outlined in the 1978 decision Azzarello v. Black Brothers, which upheld the Second Restatement.

In Azzarello, the court found that the phrase “unreasonably dangerous” in the Second Restatement did not refer to issues of negligence and determined that considerations of negligence are inappropriate in a strict liability case. Plaintiffs and defense counsel agreed during oral arguments that Azzarello went too far in its attempt to protect plaintiffs, and should be reversed.

“Neither party defended it to the court during oral argument, and no justice offered any real defense of it,” Beck said. “Whether that means they will go all the way to the Third Restatement, or apply a modified form under the Second is anyone’s guess.”

Mann, however, contended that the feelings about the Azzarello standard were not so clear-cut. He said the plaintiffs attorneys at oral arguments did not have an interest in defending the Azzarello standard because they represented an insurance carrier and not an injured plaintiff directly.

“Attorneys that represent plaintiffs as victims were very surprised by the statements made by plaintiffs in the Tincher case, basically rolling over as to whether Azzarello remains good law in the commonwealth,” Mann said. “I would hope that the Supreme Court would recognize the historical manner in which Pennsylvania courts have protected victims of defective products, and would still consider applying Pennsylvania products law as interpreted by Azzarello in the future.”

Utke agreed that he did not think any of the justices “tipped their hands” about Azzarello during oral arguments.

“There was no clear understanding about Azzarello,” Utke said. “They were just aggressively questioning every angle.”

A call to William J. Conroy of Campbell Campbell Edwards & Conroy, who represented Omega Flex, was not returned.

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