Third Circuit Resolves Debate: Restatement (Third) Applies in Pennsylvania Federal Court Cases

The debate over which Restatement of Torts governs products liability claims in Pennsylvania began between the state and federal courts.  While the Pennsylvania Supreme Court has not yet resolved this issue, the Third Circuit Court of Appeals has confirmed its previous holdings that a Pennsylvania federal court sitting in diversity should apply Sections 1 and 2 of the Restatement (Third) of Torts to product liability cases absent a contrary ruling from the Pennsylvania Supreme Court.  See Sikelee v. Precision Airmotive Corp., 2012 U.S. App. LEXIS 22185 (Oct. 17, 2012). 

Restatement (Second) vs. Restatement (Third)

The Second and Third Restatements set forth different standards for evaluating whether a product contains a design defect. The Restatement (Third) provides that a product is defective when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.  The Restatement (Second) emphasizes that negligence principles have no place in strict liability.  Thus, courts following the Restatement (Second) bar the use of risk-utility balancing and “foreseeability of use” analyses while the opposite is true for courts following the Restatement (Third).

Recent Federal Opinions Affirm the Application of Restatement (Third)

Recently, in Vaskas v. Kenworth Truck Co., United States District Court Judge A. Richard Caputo held that Sections 1 and 2 of the Restatement (Third) of Torts should apply in light of the Third Circuit’s pronouncement that the “Restatement (Third) applies to products liability actions arising under Pennsylvania law.”  Vaskas v. Kenworth Truck Co., 2013 U.S. Dist. LEXIS, at *18 (M.D. Pa. Jan. 8, 2013).  Specifically, the Court in Vaskas reasoned that “[o]nce the United States Court of Appeals for the Third Circuit predicts how a state’s highest court would resolve an issue, district courts within the circuit are bound by this prediction unless the state supreme court issues a contrary decision or it appears from a subsequent decision of the appellate courts that the court of appeals erred.”  Id.  The Vaskas Court noted that the Third Circuit held that federal district courts applying Pennsylvania law to products liability cases should look to Sections 1 and 2 of the Restatement (Third) of Torts in Covell v. Bell Sports, Inc., 651 F.3d 357, 359 (3d Cir. 2011).  See id.  Further, the “Pennsylvania Supreme Court has not ruled whether the Restatement (Third) of Torts provides the controlling analysis for products liability claims rather than the analysis under the Restatement (Second) of Torts.”  Id.  

Likewise, in Lynn v. Yamaha Golf-Car Co. Lynn ex rel. Lynn v. Yamaha Golf-Car Co., United States District Court Judge Mark Hornak of the Western District of Pennsylvania followed Third Circuit precedent by applying the Restatement (Third).  See Lynn v. Yamaha Golf-Car Co. Lynn ex rel. Lynn v. Yamaha Golf-Car Co., 2012 U.S. Dist. LEXIS 115936 (W.D. Pa. Aug. 16, 2012).

Similarly, in Sansom v. Crown Equipment, Judge Hornak held that the Court “must and will apply the Third Circuit’s Covell prediction and rely upon Sections 1 and 2 of the Restatement (Third) of Torts.”  Sansom v. Crown Equipment, 2012 U.S. Dist. LEXIS 102734, at *21 (W.D. Pa. July 24, 2012).  The Court noted that since Covell, the Pennsylvania Supreme Court had the opportunity to determine whether the Restatement (Third) of Torts was applicable to Pennsylvania products liability cases in the matter of Beard v. Johnson and Johnson, Inc., 41 A.3d 823 (Pa. 2012), but failed to do so.  See id. at **20-21.  The Sansom Court concluded that it must apply the Restatement (Third) of Torts in light of the holding in Covell and given that the Pennsylvania Supreme Court in Beard did not “affirmatively disavow the premise of the Covell decision.”  Id. at *21.

Timeline of the divergence between Pennsylvania state and federal courts

• In 2003, three Pennsylvania Supreme Court justices (Saylor, Castile (CJ) and Eakin) joined a concurring opinion in Phillips v. Cricket Lighters, stating that the strict-liability standards of the Restatement (Second) should be replaced by the Restatement (Third). See Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003).
• In 2009, the main pretext for the current forum disparity occurred.  In Berrier v. Simplicity Manufacturing, Inc., the Third Circuit predicted that the Supreme Court of Pennsylvania would apply the Restatement (Third) rather than the Restatement (Second) in products liability cases.
• The Pennsylvania Supreme Court of Pennsylvania was to decide the issue after granting allocatur to Bugosh v. I.U. North America, Inc. in 2008.  However, the court dismissed the appeal as improvidently granted in 2009 without providing any guidance to the courts regarding the federal prediction in Berrier. This ambiguous action by the court neither signaled a clear adoption of the Restatement (Third) nor a clear affirmation of the Restatement (Second).
• In 2011, the Third Circuit reaffirmed their 2003 Phillips v. Cricket Lighters prediction in Covell v. Bell Sports, Inc.  See Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011).
• In March 2012, the Pennsylvania Supreme Court declined to adopt the Restatement (Third) in Beard v. Johnson & Johnson, Inc.  See Beard v. Johnson & Johnson, Inc., No. 35 WAP 2010, slip op. (Pa. March 22, 2012).
• In July and August 2012, Judge Hornak in the Western District of Pennsylvania applied the Restatement (Third) in two separate cases.
• In January 2013, Judge Caputo in the Middle District of Pennsylvania applied the Restatement (Third).

Practical Implications for Practitioners and Litigants

Until the Supreme Court of Pennsylvania rules otherwise, practitioners handling a products liability lawsuit in Pennsylvania state court must be prepared to litigate under either Restatement application.  As a result of the Supreme Court of Pennsylvania’s actions in Bugosh and Beard, it seems likely that the state courts will continue to apply the Restatement (Second) until the Supreme Court instructs otherwise.  However, it appears that the Pennsylvania federal district courts will continue to apply the Restatement (Third) of Torts to products liability lawsuits governed by Pennsylvania law until the Supreme Court of Pennsylvania rules otherwise.

Please contact the attorneys at Nicolson Law Group for further information, questions and comments about this article.

The information herein is provided for consumer educational purposes only. The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law. The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case. For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Law Group’s licensed attorneys.