We’re Pennsylvania lawyers (at least we started that way) so we figure we can be excused for following Pennsylvania law more closely than other states. One of the key topics our Pennsylvania law posts have covered is the continuing saga of the Third Restatement of Torts − particularly in the federal courts.
Basically, in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), three justices of the Pennsylvania Supreme Court (Saylor, Castile (CJ) and Eakin) joined a concurring opinion stating that Pennsylvania’s old “super-strict” liability regime in place since Azzarello v. Black Brothers Co., 391 A.2d 1020, 1022 (Pa. 1978), was antiquated, unworkable, and should be replaced by the negligence-based standard of Restatement (Third) of Torts, Products Liability §2 (1998). Only a couple of justices, no longer on the Court, disagreed. However, since the issue was not before the court directly in Phillips, the opinion was a concurrence only and several justices did not take any position. Bexis knows. He wrote the amicus brief for PLAC in Phillips that addressed the Restatement Third issue.
It looked like the Supreme Court was going to resolve the question when it took a case called Bugosh v. I.U. North America. However, Bugosh was an asbestos case and the only appellants were intermediate sellers − not product manufacturers with which §2 of the Third Restatement (not to mention the Phillips concurrence) is primarily concerned. After this became clear at oral argument, the Pennsylvania Supreme Court dismissed Bugosh as improvidently granted. See Bugosh v. I.U. North America, Inc., 942 A.2d 897 (Pa. 2008) (order dismissing appeal). Again, Bexis knows. He participated in Bugosh for PLAC, and tried to help defense counsel grapple (unavailingly) with the intermediate seller issue.
Meanwhile the Third Circuit, in Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009), while Bugosh was pending, had the same issue in a case where the plaintiff (a bystander/unintended user) would benefit from the adoption of the Third Restatement. After first trying, and failing, to get the Pennsylvania Supreme Court to take a certified appeal, the Third Circuit predicted the adoption of the Third Restatement as Pennsylvania law. We described Berrier here. Again Bexis participated for PLAC, this time arguing that a federal court should not predict such a momentous change in Pennsylvania law, and that the defendant clearly won under existing law, but that if the court were to reach the issue the Third Restatement was preferable to Azzarello.
Shortly after the Berrier prediction, Bugosh was dismissed. The defendant unsuccessfully sought reconsideration (technically recall of the mandate, given the timing), but the Third Circuit refused, so its prediction stood, notwithstanding Bugosh. We described all this here.
There followed a period of chaos in the Pennsylvania federal district courts, described here and here. Some courts adopted arguments advanced by plaintiffs − since despite the peculiar facts in Berrier, Azzarello super-strict liability generally is more beneficial to the other side − that for one reason or another the Bugosh dismissal somehow undercut the Berrier prediction (even though the Third Circuit had impliedly rejected that in Berrier by refusing to reconsider). Other district courts, a distinct but not overwhelming majority, respected stare decisis and followed the Third Circuit’s prediction in Berrier.
Meanwhile, the Pennsylvania state courts, where Azzarello remained binding, continued on with super-strict liability, which they have to do − again under stare decisis − until the Supreme Court finally grapples with the issue and either outright changes the law, or does not. That leads to a weird situation, with federal and state courts applying different versions of “Pennsylvania” law (precisely why Bexis took the position he did in Berrier).
We thought the issue was finally put to rest − at least in federal court − by Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011), in which the Third Circuit reaffirmed its Berrier prediction and rejected all the other side’s folderol about what Bugosh-related tea leaves might or might mean. Covell instructed the district courts not to “upset” its precedent:
[Plaintiffs] urge us to hold that the dismissal of Bugosh indicates the Supreme Court of Pennsylvania’s contentment with the Restatement (Second) of Torts. We will not do so. Reading the tea leaves of a certiorari or allocatur dismissal is risky business; one could just as reasonably conclude that the dismissal here indicates the Court’s approval of Berrier as much as it indicates its approval of section 402A. . . . [T]he Bugosh appeal was an intervening event, but not an intervening “authority” sufficient to revisit our holding in Berrier. Given that Bugosh is of no consequence, we conclude that the state of the law in Pennsylvania is exactly as it was when we decided Berrier. Absent a change in Pennsylvania’s law, we see no reason to upset our precedent.
Unfortunately the whack-an-Azzarello game in the District Courts appears to be continuing, notwithstanding the Third Circuit’s seemingly definitive statement in Covell. In this instance, getting federal judges to follow stare decisis is like herding − or whacking − cats.
The latest plaintiff-side gambit, adopted in Sikkelee v. Precision Airmotive, Corp., ___ F. Supp.2d ___, 2012 WL 2552243 (M.D. Pa. July 3, 2012), claims to find an intervening “change in the law” in the recent Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012), decision. We discussed Beard here, because it was a medical device case, and because of the Beard court’s comments on the ongoing Azzarello/Third Restatement controversy. We pointed out that the court in Beard was careful to avoid any decision of that issue, given that the defendant had only belatedly raised it. Here’s what Beard said:
As in [other cases since Phillips], we again recognize the continuing state of disrepair in the arena of Pennsylvania strict-liability design defect law. While, as Appellee notes, several Justices have favored review of the foundational questions in past decisions and have expressed their views as to the appropriate remedy, a majority consensus has not yet been attained in any case. Mr. Chief Justice Castille and this author also have advocated restraint in the acceptance of subsidiary issues, pending remediation of the foundational deficiencies. As has been previously noted, “[o]bviously, all Justices are not of a like mind on this subject, as this appeal involves subsidiary issues.”
41 A.3d 836 (citations and some quotation marks omitted). The questions that the Pennsylvania Supreme Court actually agreed to hear in Beard are likewise a matter of public record:
The issues, rephrased for clarity, are:
a. To determine whether a product with more than one intended use had a design defect that rendered it defective as a matter of law, should a court undertake a risk-utility analysis relating only to the use that...
