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When the Pennsylvania Supreme Court was mulling its decision in Tincher v. Omega Flex, the main question on the minds of many Pennsylvania attorneys had been whether the state justices would depart from the Restatement (Second) of Torts’ approach to products liability practice and adopt the Restatement (Third).

The justices defied those expectations by choosing a middle ground, clinging to several principals from the Second Restatement while selecting some elements of the Third.

The high court’s hybrid approach baffled many, and lawyers who handle products liability cases have been struggling ever since to figure out exactly how those cases should go forward.

While Pennsylvania may seem to be an outlier, it is far from alone: many states across the country have adopted a somewhat middle-of-the-road approach between the restatements.

The Second Restatement, which is viewed as more plaintiff-friendly, was developed in the 1960s, and is meant to focus litigation on the characteristics of the products. The doctrine creates a firm division between strict liability and negligence principles and does not allow a fact-finder to consider the manufacturer’s conduct, or the feasibility and practicality of an alternative design.

The Third Restatement, which is seen as being more favorable for defendants, 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.

When the American Law Institute issued the Third Restatement in 1998, it was intended to clarify various points of contention that had created an unsettled landscape across the country. But, two decades on, few states have been willing to wholly adopt the doctrine, and the practice of products liability remains highly dependent on venue.

According to some attorneys, the reason for that likely lies in the 30-odd years of jurisprudence that developed before the Third Restatement.

“I think it’s just too big of a leap,” said Galfand Berger attorney Richard Jurewicz, who represents plaintiffs. “Those states that have gone from the Restatement (Second) to the Third, if you look at the bodies of law, there’s been a great dissatisfaction with the Second, to the point where the writing has really been on the wall, where they just sent signals for years and years that they were moving away from it. But, I think Pennsylvania and some other states were extremely reluctant to make that quantum leap. It drastically changes the playing field.”

Defense attorney Bradley Remick of Marshall Dennehey Warner Coleman Goggin said this adherence to jurisprudence is why some courts, including Pennsylvania, have left it up to the legislature to make the leap to the Restatement (Third).

Rieders, Travis, Humphrey, Waters & Dohrmann attorney Clifford Rieders, who also represents plaintiffs, added that some courts have been reluctant to move to the Third Restatement because negligence can be very difficult to prove.

“Most states just feel it’s not in keeping with their view of products liability,” Rieders said.

In Pennsylvania, the move from the Restatement (Second) means practitioners can try cases based on consumer expectation and risk utility theories. What that means for numerous issues, including how juries should be instructed, or whether evidence like adherence to government and industry standards can be allowed at trial, is now being hashed out at the trial level, and several major points of contention between the plaintiffs and defense bars have arisen.

Some states are much more settled. The Texas Supreme Court, for example, adopted the Restatement (Third) soon after it was introduced, and state law in Missouri adheres to the Restatement (Second). Other states follow their own method for trying cases involving products, and some states, like Delaware, do not recognize products liability at all.

Most states, however, have either brought elements from both doctrines, or their law is in flux. For example, the Connecticut Supreme Court recently clarified its consumer expectation test, but two justices said they felt the court should have adopted the Restatement (Third).

“It’s messy everywhere,” Remick said. “It’s different for each state.”

Whether or not Pennsylvania will play a significant role in any broader tug-of-war between the restatements nationally remains to be seen.

Some attorneys suggested that it likely won’t, given its unique body of case law prior to Tincher, and the fact that states looking to adopt the Restatement (Third) it will likely look to sister states that have already explicitly done so, which Pennsylvania has not.

But, the struggles in the Keystone State have garnered the attention of some national and international manufacturers and drugmakers, and some attorneys have said this could be because of the high number of out-of-state plaintiffs who have cases pending in Pennsylvania—Philadelphia in particular.

“It’s relevant to other states because, with the venue rules, it’s difficult to get a case out of Philadelphia,” Remick said.

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