The opinion, Schrecengost v. Coloplast Corp., 2019 WL 6465398 (W.D. Pa. Dec. 2, 2019), recently “predicted” that Pennsylvania would allow strict liability design and warning defect claims in cases involving prescription medical products. Id. at *11-13. In so doing Schrecengost was not only wrong, but loud wrong. First, without even a serious discussion, Schrecengost violated the fundamental principles of federalism inherent in the Erie doctrine. Second, Schrecengost ignored over 75 years of unbroken Pennsylvania appellate precedent, offering extremely flimsy excuses for what is simply an activist, pro-plaintiff result. Thus, we object.
The Wrong Court
First, we object jurisprudentially. For the same reasons expressed in our prior Wrong Court post, Schrecengost failed entirely in its obligation under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), to respect existing state precedent in applying state law in an action based on federal diversity jurisdiction. Briefly, since we covered this topic with Third Circuit-specific analysis extensively both in Wrong Court and earlier here, “[a] federal court in diversity is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.” Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3,4 (1975). “[A] federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation.” Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988). For a complete discussion of on-point United States Supreme Court cases, see our recent (and non-Third Circuit specific) post, Why Erie Is an Inherently Conservative Doctrine.
This means, as the Third Circuit has stated many times, that federal courts sitting in diversity cannot “act as . . . judicial pioneer[s]” by deciding “whether and to what extent they will expand state common law.” City of Philadelphia v. Lead Industries Ass’n, 994 F.2d 112, 123 (3d Cir. 1993). “[F]ederal courts may not engage in judicial activism. Federalism concerns require that we permit state courts to decide whether and to what extent they will expand state common law. . . . Our role is to apply the current law of the jurisdiction, and leave it undisturbed.” Leo v. Kerr-McGee Chemical Corp., 37 F.3d 96, 101 (3d Cir. 1994). See also Sheridan v. NGK Metals Corp., 609 F.3d 239, 254 (3d Cir. 2010); Travelers Indemnity Co. v. Dammann & Co., 594 F.3d 238, 253 (3d Cir. 2010); Lexington National Insurance Corp. v. Ranger Insurance Co., 326 F.3d 416, 420 (3d Cir. 2003); Werwinski v. Ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002); City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 (3d Cir. 2002); Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 541-42 (3d Cir. 2001); Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 92 n.7 (3d Cir. 2000); Adams v. Madison Realty & Development, 853 F.2d 163, 168 (3d Cir. 1988); Falcone v. Columbia Pictures Industries, 805 F.2d 115, 118 (3d Cir. 1986); Bruffett v. Warner Communications, 692 F.2d 910, 918 (3d Cir. 1982). We note that this issue is currently pending – and indeed is front and center − in the Oberdorf v. Amazon litigation, and we hope (and expect) that it will once again be reaffirmed, this time by an en banc court.
The Schrecengost decision departed from 75 years of consistent Pennsylvania practice, as well as the Erie predictions of over two score of other federal district court judges applying Pennsylvania law (see below) without any basis under Erie for doing so. Indeed, Schrecengost’s entire Erie discussion is:
The Pennsylvania Supreme Court has not ruled definitively on the issue. In the absence of a decision from the Pennsylvania Supreme Court, this Court must predict how the Pennsylvania Supreme Court would rule on this issue. See Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 45-46 (3d Cir. 2009). A federal district court in this position should consider “relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.” Id. at 46 (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980)).
2019 WL 6465398, at *11. Thus, Schrecengost fails to acknowledge, anywhere, that federal courts are not, in fact, free to make up Pennsylvania law any way they want, without regard to existing precedent. Indeed, the Berrier decision, the only Third Circuit case directly cited in Schrecengost, is probably the Third Circuit’s most spectacularly wrong product liability prediction of all time – “predicting” that Pennsylvania would abandon Restatement (Second) of Torts §402A (1965), in favor of the Third Restatement. Cf. Tincher v. Omega Flex, Inc., 104 A.3d 328, 394-99 (Pa. 2014) (rejecting Berrier “prediction).
Thus, even if Schrecengost were right about the direction of Pennsylvania law – and the rest of this post is devoted to proving that it is flat wrong – a federal district court sitting in diversity jurisdiction is the wrong forum for making that claim. Changing Pennsylvania law is the province of Pennsylvania state appellate courts, not federal judges acting as what Justice Cardozo memorably called “knights errant,” using litigation for result oriented purposes:
A judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
Benjamin N. Cardozo, Nature of the Judicial Process, at 141 (1921)
Schrecengost is also 100% wrong under current Pennsylvania law.
The Wrong-er Reasoning
What is that law?
Three-Quarters of a Century of Pennsylvania Prescription Medical Product Liability Precedent
Since the beginning of product liability litigation in Pennsylvania, the Pennsylvania Supreme Court has always, whenever the issue was raised (which has happened relatively often), rejected any form of strict liability in product liability cases involving prescription medical products. The first case goes back to 1942, and the most recent on-point decision was the aforementioned Tincher case itself.
Pennsylvania precedent rejecting strict liability in prescription medical product liability litigation begins with Henderson v. National Drug Co., 23 A.2d 743 (Pa. 1942), well before the concept of §402A strict liability in tort first reared its ugly head in California. The plaintiff in Henderson failed to prove negligence but claimed that “‘even if the Drug Company was not negligent . . . its product was not safe and therefore on the proof of breach of warranty alone the plaintiff would be entitled to a verdict.’” Id. at 748-49 (quoting from plaintiff’s brief). The Pennsylvania Supreme Court unanimously said no: “This action is not founded on a breach of warranty. An action against a druggist to recover for personal injuries should be ex delicto and not ex contractu.” Id. at 749 (citation and quotation marks omitted).
Thus, with respect to prescription medical products, the “warranty” predicate for the “consumer expectation” prong of the “composite” strict liability design defect test announced in Tincher, 104 A.3d at 401-02, has not existed in Pennsylvania since 1942. As held in Henderson, manufacturers of such products are held “to a high degree of responsibility under both the criminal and the civil law,” 23 A.2d at 748, but that responsibility remains a negligence duty, since eliminating the traditional negligence framework would “ill-serve” the public:
This consideration, however, does not justify the courts in lowering the standards of proof in tort cases of this kind. If we did so the public interest would be ill served. If those who make and compound drugs and medicines in packages or bottles, under the strict conditions prescribed by the [forerunner of the Food, Drug & Cosmetics Act], can be mulcted in damages every time some person uses such drugs or medicines with harmful results, the making and selling of such products would be a most peculiarly hazardous enterprise.
Id. (citations omitted) (emphasis added).
Henderson rejected what modern law would consider a warranty of “merchantability.” Some 20 years later, a plaintiff tried again to impose warranty style strict liability – asserting a “warranty of fitness for use” − against a prescription drug manufacturer in DiBelardino v. Lemmon Pharmacal Co., 208 A.2d 283, 283 (Pa. 1965). The Pennsylvania Supreme Court reaffirmed what it held in Henderson, again rejected the proposition that a “drug company would be liable, even if not negligent,” for all injuries caused by its product. Id. at 285.
[I]n Henderson, disposing of a contention that the drug company would be liable, even if not negligent, if the drug was not safe on theory of a breach of warranty, this Court held that, unless the action is based upon an express warranty, an action against a drug company must be ex delicto and not ex contractu, the action being based upon a breach of duty imposed by law. Under Henderson, . . . [plaintiff], relying on a breach of implied warranty, would be restricted to an action in trespass rather than an action in assumpsit.
Id. at 585, 208 A.2d at 285-86 (footnote and other citations omitted).
In 1966, Pennsylvania adopted Restatement (Second) of Torts §402A (1965). See Webb v. Zern, 220 A.2d 853 (Pa. 1966). The first Pennsylvania Supreme Court prescription medical product liability case after Webb was Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971) (abrogated in part on irrelevant grounds). Incollingo reaffirmed Henderson’s policy-based rejection of strict liability. Id....
