As of the writing of this article in
The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in that case. While one
As noted below, under the current status of Pennsylvania products liability law, whether the case will be governed by the Restatement (Second) of Torts or the Restatement (Third) of Torts depends upon whether the case is in state or federal court, and if the case is in federal court, the answer may further depend upon which particular federal district court judge is presiding over the case.
The Restatement (Second) of Torts § 402A Standard
It is safe to say that most
lawyers now practicing law now
were trained on products liability issues in law school through a detailed
study of the parameters of Section 402A of the Restatement (Second) of
Torts. This section of the Restatement
(Second) of Torts, which first came back into play in 1965, provides, in
pertinent part, that “[o]ne who sells any product in a defective condition
unreasonably dangerous to the user or consumer” may be held strictly liable to
the injured party even if the “seller has exercised all possible care in the
preparation and sale of this product.”
Restatement (Second) of Torts § 402A (1965). Pennsylvania
At the time it was published, Section 402A of the Restatement (Second) of Torts codified a new strict liability cause of action against manufacturers to be considered in addition to the other previously viable causes of action, such as negligence and breach of warranty. Section 402A also expanded the scope of possible liable parties to also include all sellers in the distribution process related to the dissemination of the product to the public at large.
The Pennsylvania Supreme Court has consistently applied Section 402A of the Restatement (Second) of Torts to
products liability cases since
its 1966 decision in the case of Webb v.
Zern. See Arthur L. Bugay & Craig L. Bazarsky, The Future of Pennsylvania
Products Liability as Applied by Federal and State Courts: Covell v. Bell
Sports, Inc. Volume LXXXIII, No. 4
The PA Bar Assoc. Quarterly p. 139, 140 (October 2012) citing Webb v. Zern, 220 A.2d 853 ( Pennsylvania ). Pa.
Under the Restatement (Second) of Torts analysis, manufacturer defendants are held to be strictly liable for any manufacturing defects in their products. With regards to design defect claims, since approximately 1984, the
courts have used a risk-utility
analysis to initially determine, as a matter of law, whether a product may be
considered by the jury to be defective. Bugay, supra
at p. 143 citing with “See” signal
Daumbacher v. Mallis, 485 A.2d 423, n. 6 (Pa.Super. 1984) and Surace v. Caterpillar, Inc. 111 F.2d
1039 (3d Cir. 1997). Pennsylvania
If the case makes it beyond this threshold finding, the matter will be permitted to proceed to the jury for a determination as to whether a product’s design was defective and the cause of the injury alleged.
The Restatement (Third) of Torts § 2 Standard
The Restatement (Third) of Torts was published in 1998.
Under Section 2 of the Restatement (Third) of
Torts, recognized product defects that may subject a defendant to liability
include manufacturing defects, design defects, and failure to warn defects. Id. [Citations
In Section 2 of the Restatement (Third) of Torts, the definition of a manufacturing defect is essentially identical to that contained in the Restatement (Second), i.e., strict liability is owed to the injured party for any injuries caused by a manufacturing defect of the product.
However, in contrast to the principles espoused under the Restatement (Second) of Torts, claims asserting a design defect or a failure to warn are to be analyzed with reference to negligence principles and concepts delineated under the Restatement (Third) of Torts.
For example, under design defect cases governed by the Restatement (Third) of Torts, the strict liability analysis is altered by the inclusion of negligence-based principles, including consideration of the viability of a “reasonable alternative design.”
Restatement (Third) of Torts § 2 (1998). More specifically, the Restatement (Third) of
Torts: Products Liability, § 2(b) states, in pertinent part, that a product is
defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial
chain of distribution, and that the omission of the alternative design renders
the product not reasonably safe. Id.
Stated otherwise, while the analysis of design defect cases under the Restatement (Second) of Torts focuses on the actual design of the product, the basis for liability under the Restatement (Third) of Torts in this context includes a consideration of the reasonableness of the defendant’s conduct. Bugay supra at p. 144. Essentially, while Restatement (Second) standard focuses on an intended user making an intended use of the product, the Restatement (Third) places the emphasis of the analysis on the foreseeable risks of harm and whether an alternative design could have minimized or eliminated that risk. Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 365 (E.D. Pa. 2010).
Another difference with the Restatement (Third) of Torts in the products liability context is that, under Restatement (Third) analysis, the plaintiff’s own acts or omissions, i.e., contributory negligence, are made an important part of the analysis of whether or not a product should be determined to be defectively designed.
Overall, with the movement away from strict liability towards a more negligence-based analysis in the Restatement (Third) of Torts, it would appear that most defendants in products cases would advocate for the adoption and application of the Restatement (Third) standard. In contrast, most plaintiffs would likely favor the strict liability analysis under the Restatement (Second).
It should be noted, however, that the emphasis in the Restatement (Second) that the plaintiff be an intended user of the product serves to bar any recovery to bystanders injured by a product thereby making the Restatement (Third) a more favorable standard for that particular class of plaintiffs.
Overall, there can be no dispute that, with the substantive differences between the two standards, the decision on which standard should be applied could have a significant impact on the admissibility of evidence and, consequently, the outcome of particular products liability cases.
These efforts by the federal courts to predict how the Pennsylvania Supreme Court would address the Restatement (Second) versus the Restatement (Third) issue may have been borne out of signals from the Pennsylvania Supreme Court itself that perhaps the time has come to consider Restatement (Third) of Torts products liability standard as the law of the land.
For example, as far back as 2003, Pennsylvania Supreme Court
Justice Thomas G. Saylor, in
his concurring opinion in the case of Phillips
v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003). criticized the “ambiguities
and inconsistencies” that had arisen in recent times with the Restatement
(Second) analysis and stated that Pennsylvania’s products liability law
“demonstrate[d] a compelling need for consideration of reasoned alternatives,
such as are reflected in the position of the Third Restatement.”
at 1000 [bracket inserted here]. Id.
Yet, through at least 2008, the Pennsylvania Superior Court and the Pennsylvania Supreme Court had repeatedly rejected requests for the adoption of the Restatement (Third) analysis in several products liability cases. Bugay supra at p. 146-147 citing with “See” signal DeSantis v. Frick Co.,745 A.2d 624 (Pa. Super. 1999); Phillips v. Cricket Lighters, supra, and with “See also” signal Bugosh v. I.U. N.A., Inc., 942 A.2d 897 (Pa. 2008).
Then in 2008, the Pennsylvania Supreme Court agreed to hear the appeal in the case of Bugosh v. I.U. North America, Inc. to specifically address the issue of whether the Restatement (Third) of Torts should be adopted in the products liability context. 942 A.2d 897 (Pa. 2008) The Superior Court in Bugosh had refused to overrule “established authority” supporting the application of the Restatement (Second) and rejected the defendant’s assertion that the Restatement (Third) should be adopted.
While this issue was pending before the Pennsylvania Supreme Court in Bugosh, but not yet decided, the same issue came before the United States Third Circuit Court of Appeals in the case of Berrier v. Simplicity Manufacturing, Inc. Bugay supra at p. 140 citing Berrier, 563 F.3d 38 (3d Cir. 2009). The Third Circuit Court of Appeals boldly predicted in Berrier that the time had come where the Pennsylvania Supreme Court would indeed adopt the Restatement (Third) of Torts as the new standard to apply in products cases. Berrier, 563 F.3d at 53-54.
of 2009, the Pennsylvania Supreme Court dismissed the appeal in the Bugosh case as improvidently granted
and never reached the issue of whether or not to adopt the Restatement (Third)
of Torts. 971 A.2d 1228, 1229 ( 2009). In that decision to dismiss the appeal, Pa. Justice Saylor again voiced his desire to adopt the
Restatement (Third) in a lengthy and strongly worded dissent. at 1241
(Saylor, Id. J., dissenting).
The prediction by the Third Circuit Court of Appeals in Berrier followed by the dismissal of the appeal in Bugosh created confusion amongst the
federal district court judges who faced the same issue thereafter. Bugay supra
at p. 148. After Bugosh, federal
district court judges across the Pennsylvania , with
some of them even from the same district court bench, began to diverge on the
question of which Restatement to follow.
Then, in its more recent decision in 2011 on the issue in the case of Covell v. Bell Sports, Inc., 651 F.3d 357, 365 (3d Cir. 2011) the Third Circuit again predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) if squarely faced with the issue. The Third Circuit seemed to stand fast to this position again in a footnote contained in its denial of an appeal in the case of Sikkelee v. Precision Automotive. See 2012 WL 5077571 (3d Cir. 2012). Since the issuance of the Covell decision by the Third Circuit Court of Appeals reiterating this prediction, the lower federal courts have continued to issue conflicting decisions on which Restatement analysis to apply in products cases.
In 2011, the Pennsylvania Supreme Court issued its decision in Schmidt v. Boardman Co., 11 A.3d 924 (
2011), in which the court acknowledged that “foundational problems” existed in products
liability law based upon the Restatement (Second) of Torts. 11 A.3d at 940–41. However, the court noted that the case before
it was not selected to address those “foundational concerns.” Pennsylvania As such, the debate was not concluded in that
Yet, a study of the jurisprudence on this issue reveals that, in 2012, the Pennsylvania Supreme Court did have another opportunity to address the issue in the case of Beard v.
Johnson & Johnson,
Inc., 41 A.3d 823 (Pa. 2012); see
also Schmidt v. Boardman Co., 608 Pa. 327, 11 A.3d 924, 941
(Pa. 2011) (“Notwithstanding the Third Circuit's prediction, however, the
present status quo in Pennsylvania entails the continued application of Section
402A of the Restatement Second, subject to the admonition that there should be
no further judicial expansions of its scope under current strict liability
In Beard, the Pennsylvania Supreme Court again chose not to adopt the Restatement (Third) as had been repeatedly predicted by the
federal appellate court. In the Beard
decision, Pennsylvania Supreme Court Pennsylvania Justice
Max Baer clearly stated that “the current law of … is §402A of the Restatement
(Second) of Torts.” Id. at 839; see also Bugay supra at p. 148-149 citing
Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa. 2009), as another example of a
case in which the Supreme Court did not criticize the application of the
Restatement (Second) analysis to the case presented. Pennsylvania
But the Beard decision was not a definitive decision on the issue as it sent out some mixed signals from
Justices on ’s highest
court. In his majority opinion in Beard, Pennsylvania Justice
Thomas G. Saylor, joined by Chief Justice
Ronald D. Castille along with Justices
J. Michael Eakin and Joan Orie Melvin, wrote in a footnote, "It may
be cogently argued that risk-utility balancing is more legitimately assigned to
a jury," referring to the approach endorsed by the Restatement (Third) of
Torts. 41 A.3d 838, n. 18.
Baer filed a concurring opinion in Beard, which Justices
Debra Todd and Seamus P. McCaffery joined, in which he attempted to
"distance" himself from what he viewed as Justice
Saylor's rejection of the standard in Section 402A of the Restatement (Second) calling
for a risk-utility analysis to be performed by judges. at 839. Id.
As noted in greater detail below, there has developed a split of authority in each of the branches of the federal district courts of
. While some of the federal district court
judges have opted to follow the most recent pronouncement on the issue by the
Pennsylvania Supreme Court in the Beard
case favoring the Restatement (Second) analysis, still other federal court
judges believe they are duty bound to follow the contrary Third Circuit’s
predictions in the Berrier and Covell decisions as being binding
precedent upon them in favor of the application of the Restatement (Third)
standards until a subsequent, contrary decision is handed down by a
Pennsylvania state appellate court. Pennsylvania
In a March of 2010 decision in the case of Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 364-65 (E.D. Pa. 2010),
Judge Petrese B. Tucker of the Eastern District
Federal Court of Pennsylvania, noting that, as of that time, the Pennsylvania
Supreme Court had dismissed the appeal in Bugosh
without deciding the issue, opted to follow the Third Circuit Court of Appeals
reference to the Restatement (Third) in Berrier
as “binding precedent.” In so ruling, Judge
Tucker cited Richetta v. Stanley, 661 F. Supp.2d 500 (E.D. Pa. 2009
Golden, J.), and Martinez v.
Skirmish, U.S.A., Inc., 2009 WL 1437624 (E.D. Pa. 2009 Padova, J.) with approval.
The Third Circuit’s prediction on the adoption of the Restatement
(Third) was also followed by Judge
William H. Yohn, Jr. in Xia Zhao v. Skinner Engine Co.,
2:11-CV-07514-WY, 2012 WL 5451817 (E.D. Pa. 2012).
Other judges in the Eastern Federal District of
have come to the contrary decision that Section 402A of the Second Restatement
remains the law of
in light of the fact that the Third Circuit's prediction that the Pennsylvania
Supreme Court will adopt the Restatement (Third) as the law of the land has not
come to pass. Thompson v. Med-Mizer, Inc., 10-CV-2058, 2011 WL 1085621 (E.D. Pa.
2011 Gardner, Pennsylvania J.) (“This court is not
required to follow the Third Circuit's prediction where ‘the state's highest
court issues a decision contradicting that prediction or state intermediate
appellate court's decisions subsequently indicate that prediction has not come
to pass.’”), citing Sweitzer v.
Oxmaster, Inc., 2010 WL 5257226, at *3–4 (E.D.Pa. 2010 Pratter, J .) and Durkot v. Tesco Equipment, LLC,
654 F.Supp.2d 295, 298–299 (E .D. Pa.2009 Hart, M. J.).
In a more recent decision, Eastern District magistrate judge Henry S. Perkin also referred to the Restatement (Second) analysis in the case of Carpenter v. Shu-Bee's, Inc.,
10-0734, 2012 WL 2740896 (E.D. Pa. 2012 Perkin, M. J.).
It is noted, however, that in an even more recent decision in the above-referenced Eastern District Court decision in Thompson v. Med-Mizer, Inc., 10-CV-2058, 2011 WL 1085621 (E.D. Pa. 2012 Perkin, M.J.), Magistrate Judge Perkin, who took over that case as it came into trial, ruled in favor of applying Restatement (Third) in light of Third Circuit's more recent Order issued in Sikkelee case advocating that standard.
U.S. Federal Court for the Western District of Pennsylvania
This split of authority is also evidenced in the Western District of Pennsylvania. Those Pennsylvania Federal Western District Court judges who have presently chosen to follow the Restatement (Second) in products liability cases contrary to the Third Circuit's analysis include
Judge Nora Barry Fischer in Gross v. Stryker,
858 F.Supp.2d 466 (W.D. Pa. 2012), Judge
Arthur J. Schwab of the Western
District in both Konold v. Superior International Industries, 2012 WL
5381700 (W.D. Pa. 2012), and Schif v. Hurwitz, 2012 WL
1828035 (W.D. Pa. 2012).
The Western Federal District Court
have chosen to instead apply the Restatement (Third) under the Third Circuit's
predictions in the Berrier and/or Covell decisions include Judge Mark R. Hornak of the cases of Sansom v.
Crown Equipment, 2012 WL 3027989 (W.D. Pa. 2012), and Lynn v. Yamaha
Golf-Car, 2012 WL 3544774 (W.D. Pa. 2012), along with Judge Donetta W. Ambrose in Zollars v.
Troy-Built, 2012 WL 4922689 (W.D. Pa. 2012), and Judge
Maurice Cohill Jr. in Spowal v. ITW Food Equipment Group, C.A. 10-187, ECF No.
52 (W.D. Pa. 2012).
U.S. Federal Court for the Middle District of Pennsylvania
Federal judges in the Middle District of Pennsylvania have also split on the issue of which Restatement should be adopted in products cases. Middle District
Richard Caputo has repeatedly ruled that, based upon the Covell
court's pronouncement that Berrier remains the controlling formulation
of the law for district courts in this Circuit, and given that the Pennsylvania
Supreme Court has not issued a decision to the contrary, the Restatement
(Third) of Torts should be applied in Pennsylvania Federal Middle District
products liability cases as repeatedly predicted by the Third Circuit Court of
Appeals. See Vaskas v. Kenworth, 3:10 CV-1024, 2013 WL 101612
(M.D. Pa. 2013 Caputo, J.); Giehl
v. Terex Utilities, CIV.A. 3:12-0083,
2012 WL 1183719 (M.D. Pa. 2012 Caputo, J.).
John E. Jones
III of the Middle District issued
a contrary decision in the case of Sikkelee v. Precision Automotive,
876 F. Supp.2d 479 (M.D. Pa. 2012), in which he chose to instead follow the
Restatement (Second) in products liability cases contrary to the Third
Circuit's predictions. In Sikkelee, Judge
Jones respectfully noted that
federal district courts are not required to follow predictions by the Third
Circuit where that prediction does not appear to have been realized in state
In the appeal of
Jones’ decision in Sikkelee, the Third Circuit again noted
in its own en banc decision denying a
petition for clarification on the appeal that federal district courts in should continue
to apply the Third Restatement. 2012 WL
5077571 (3d Cir. Oct. 17, 2012) (en banc)
citing Covell, supra, and Berrier, supra. Pennsylvania
With the law being in a state of flux and the federal court decisions creating a maze of uncertainty, litigants are required to monitor the status of this issue with the Pennsylvania Supreme Court in order to determine how this issue may ultimately play out.
As noted above, the most recent, on-point pronouncement by the Pennsylvania Supreme Court on the Restatement (Second) versus (Third) debate is the court’s decision in Beard v.
& Johnson, 41 A.3d 823 (Pa. 2012) in which the court reiterated, as it
has since 1966, that the standards set forth in § 402A of the Restatement
(Second) of Torts are to be applied in Pennsylvania products liability cases.
In its more recent decision in the case of Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012), a shorthanded Pennsylvania Supreme Court
Orie Melvin was suspended from the court in 2012 to address criminal
allegations filed against her pertaining to charges that she used legislative
and judicial staff to perform work on her campaign for her seat on the
Pennsylvania Supreme Court bench. issued a 5-1 decision recognizing that
"highly reckless" conduct is an affirmative defense in products
liability cases under which defendants could attempt to avoid liability by
showing that a plaintiff's highly reckless conduct was the sole or superseding
cause of the plaintiff's injuries. In so
ruling, the majority, in an opinion written by Justice
Max Baer, relied upon Section 402A of the Restatement (Second) of Torts.
Accordingly, the Reott decision can be read as lending further support to the proposition that the Restatement (Second) remains the law of the land in
cases. However, it should also be noted
that Reott was analyzed as a manufacturing defect case and both the
Second Restatement and Third Restatement are in agreement that strict liability
applies in manufacturing defect cases. The conflict between the two Restatements
arguably requires a square decision by the Pennsylvania Supreme Court in a
design defect case to finally conclude the matter once and for all. Pennsylvania
It is also noted that, as of the writing of this article in
January of 2013, the Pennsylvania
Supreme Court has granted allocatur
to hear the appeal in the case of Lance
v. Wyeth, 15 A.3d 429, 430 (Pa. 2011) in which it may have yet another
opportunity to squarely address the Restatement (Second) versus (Third) issue. The hope remains that the Wyeth court will tackle and finally
resolve the issue once and for all when it announces its decision. A concern in this regard is that the
Pennsylvania Supreme Court remains short one Justice
on account of Justice Orie Melvin’s
current suspension from the bench which could lead to an equally split decision
by the Pennsylvania Supreme Court on this all-important issue. A plurality decision in this regard will do
little to end the dispute and would unfortunately represent a missed
opportunity resolve this debate once and for all.
This article was previously published in the Westlaw Journal: Automotive, Vol. 32, Issue 17 (Feb. 12, 2013) and is reprinted at the link with permission.
A few comments by Bexis: (1) the Third Restatement is also more pro-plaintiff than Pennsylvania law on the post-sale duty to warn, since the Third Restatement does not require a defect at sale, whereas Pennsylvania law does, DeSantis v. Frick Co., 745 A.2d 624 (Pa. Super. 1999); (2) the Third Circuit should get a little more credit, since in Berrier it first tried to certify the Restatement (Third) question to the Pennsylvania Supreme Court, but had the attempted certification rejected in light of Bugosh, and only after that did it venture to predict Pennsylvania law; and (3) because the Pennsylvania Supreme Court in Hahn v. Richter, 673 A.2d 888 (Pa. 1996), exempted prescription medical products from strict liability altogether, the Restatement question is not before the court in Lance.