Product Liability Law Medical Device Law Update: December 2012 - “A State of Profound Uncertainty”: The Crisis in Pennsylvania


Since the mid-1960s, Pennsylvania has adhered to the strict liability tenets of section 402A of the Restatement (Second) of Torts. Its version of strict liability had a number of unique features, including the determination that whether a product was unreasonably dangerous created a legal issue for the court. Azzarello v. Black Brothers Co., 391 A.2d 1020, 1026 (Pa. 1978).  With the publication of the Restatement (Third) of Torts: Products Liability states had to decide whether to adopt some or all of its precepts. In general, the Third Restatement focused the determination of defectiveness of design on factors that largely sounded in negligence. Pennsylvania had traditionally resisted the insertion of negligence concepts such as foreseeability and reasonableness into its conception of strict liability.


In 2009, the Third Circuit Court of Appeals predicted that the Pennsylvania Supreme Court would adopt the Third Restatement based largely on language in a prior concurring opinion in that court. Berrier v. Simplicity Mfg. Co., 563 F.3d 38, 53-54 (3rd Cir. 2009). It appeared that the prediction would be put to the test that same year in Bugosh v. IU North America, 971 A.2d 1228 (Pa. 2009), but the Pennsylvania Supreme Court ultimately decided to dismiss the appeal as improvidently granted.


Two years later, the Pennsylvania Supreme Court noted the inconsistency between the Third Circuit’s prediction and its prior rulings but refused to make a definitive ruling. It did state that the “present status quo in Pennsylvania entails the continued application of Section 402A of the Restatement (Second) of Torts.” Schmidt v. Boardman, 11 A.3d 924, 940 (Pa. 2011).


Seemingly, this language suggested that the Third Circuit’s prior prediction in Berrier was at least premature. Nevertheless, in its next opinion, the court reaffirmed its prior ruling and found that nothing in Bugosh or Schmidt required an alteration of its prior prediction. Corvell v. Bell Sports Inc., 651 F.3d 357 (3rd Cir. 2011). Most recently, in Beard v. Johnson and Johnson, 41 A.3d 823, 836 (Pa. 2012) the Pennsylvania Supreme Court noted the “continuing state of disrepair” of Pennsylvania product liability law but again declined to make a definitive ruling.


Federal district courts in Pennsylvania are bound by the Third Circuit’s construction of the state’s law, at least until the Pennsylvania Supreme Court hands down a ruling to the contrary. Consequently, they have applied the Third Restatement. See Lynn v. Yamaha Golf Car Co., 2012 WL 3544774 (W.D. Pa. 2012). The state courts, however, have found themselves bound to follow the Second Restatement. Lance v. Wyeth 4 A.3d 160 (Pa. Super 2010). As a result, the law governing a claim in Pennsylvania depends upon whether the case resides in state or federal court, precisely the kind of result that the Erie doctrine was designed to prevent.


The Pennsylvania Supreme Court has granted an appeal in the Lance v. Wyeth matter and it is possible that the case may serve as a vehicle to finally end the War of the Restatements. Until such a resolution, litigants contemplating filing a case in Pennsylvania state or federal court or considering removing a state case to federal court must carefully consider how their forum choice will impact the substantive law governing the case.


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