Conflicting Opinion Revamps Restatement Rift

As the Nicolson Law Group has previously reported, there is a rift between Pennsylvania’s state and federal courts regarding the applicability of the Restatement (Third) or Restatement (Second) of Torts to product liability actions.  Although this disparity has existed between state and federal courts for roughly two years, a string of federal court opinions adopting the Restatement (Third) appeared to indicate some level of stability at the federal level.  A recent opinion from the United States Federal Court for the Western District of Pennsylvania has revamped the uncertainty by applying the Restatement (Second).  Gilmore v. Ford Motor Company, No. 2-12-CV-00547 (W.D.Pa. 2013 Schwab, J.).

The Rift
In June of 2011, the Third Circuit in Covell v. Bell Sports, Inc. directed federal courts to apply the Restatement (Third) to products liability claims in Pennsylvania.  Covell v. Bell Sports, Inc. 651 F.3d 357, 365 (3d Cir. 2011).  Federal district courts must follow a Third Circuit holding until the state Supreme Court issues a contrary decision.  Since Covell, most federal courts have applied the Restatement (Third), but two state Supreme Court cases have applied the Restatement (Second).  Beard v. Johnson & Johnson, 41 A.3d 823 (Pa. 2012); Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012).  Using these Pennsylvania Supreme Court cases as authority, Judge Arthur J. Schwab from the Western District of Pennsylvania recently applied the Restatement (Second) in Gilmore v. Ford Motor Company, No. 2-12-CV-00547 (W.D.Pa. 2013 Schwab, J.).  In doing so, he broke away from the line of federal cases that had been applying the Restatement (Third) and once again created uncertainty in this area of products liability practice.  Id. 

Gilmore v. Ford Motor Company
In Gilmore v. Ford Motor Company, Judge Arthur J. Schwab declined to follow the Third Circuit’s ruling in Covell. 651 F.3d 365. Instead, he adopted the Pennsylvania Supreme Court’s adherence to the Restatement (Second).  Gilmore, No. 2-12-CV-00547 (W.D.Pa. 2013).  In this case, Defendant Ford Motor Company (“Ford”) argued that the Third Circuit’s decisions in Covell and Sikkelee v. Precision Airmotive Corp. mandated the application of the Restatement (Third).  Sikkelee v. Precision Automotive, 2012 U.S. App. LEXIS 22185, n. 1 (3d Cir. 2012)(suggesting Restatement (Third) application was correct); Covell,651 F.3d 365.  Judge Schwab highlighted the non-precedential nature of Sikkelee by explaining that intervening State Supreme Court decisions applying the Restatement (Second) rendered the Third Circuit’s predictions applying the Restatement (Third) obsolete.  Gilmore, No. 2-12-CV-00547 (W.D.Pa. 2013).  Consequently, Judge Schwab concluded that there was no change in Pennsylvania’s controlling law, and he endorsed the application of the Restatement (Second) to product liability cases in federal courts sitting in diversity. 

Impact
Prior to Judge Schwab’s decision in Gilmore v. Ford Motor Company, Judge Mary McLaughlin of the Eastern District of Pennsylvania had issued the latest in a chain of opinions applying the Restatement (Third) to products liability cases.  Kordek v. Becton, Dickinson & Co.,  2013 WL 420332 (E.D. 2013).  Judge Schwab’s decision highlights that individual federal judges have the power to choose which Restatement will apply until the Pennsylvania Supreme Court issues a clear mandate.  Parties litigating in the United States Federal Court for the Western District of Pennsylvania in particular must be prepared to argue their cases under either the Restatement (Second) or the Restatement (Third).  Once again, the Restatement split in Pennsylvania is causing disparity not only between federal and state courts, but among the federal courts themselves.
 
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