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.
651 F.3d at 364.
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 allegedly resulted in harm, or should it consider the risks and benefits of all intended uses?
b. On appeal from a trial court’ legal determination regarding whether a product suffered from a design defect that rendered it defective, is the appellate court bound by the trial court’s weight and credibility determinations, and may the appellate court only consider evidence that the trial court took into consideration in rendering its decision?
Beard v. Johnson & Johnson, Inc., 8 A.3d 1263, 1263 (Pa. 2010) (order accepting plaintiff’s appeal).
Somehow, in this careful dictum specifically intended by Justice Saylor (who also authored the original Phillips concurrence first advocating the Third Restatement) to avoid deciding the issue one way or another, the Sikkelee opinion finds enough to ignore the two directly on point Berrier and Covell opinions:
In our opinion, this indication was provided in Beard, where the Pennsylvania Supreme Court expressly took notice of “the continuing state of disrepair in the arena of Pennsylvania strict-liability” law and nonetheless declined to take the opportunity to replace the Restatement Second with the Restatement Third. Note 5
FN5. Indeed, Beard makes it abundantly clear that there remains an ideological split within the Pennsylvania Supreme Court relative to adoption of the Restatement Third. The Third Circuit’s prediction in Covell assumed the formation of a consensus that has not yet crystalized.
Consistent with our rationale in Milesco, we believe that the Pennsylvania Supreme Court, by again declining to take advantage of the opportunity to adopt the Restatement Third, has indicated that the Restatement Second remains the law in Pennsylvania.
2012 WL 2552243, at *9 (Beard citations omitted).
The mind boggles.
Let’s look a little deeper. First, there was no “opportunity to replace the Restatement Second” in Beard. That issue was no more before the court in Beard than was the other missing point we pointed out in our post, that strict liability does not apply at all to prescription medical products. See Hahn v. Richter, 673 A.2d 888 (Pa. 1996), as applied to medical devices by Creazzo v. Medtronic, Inc., 903 A.2d 24 (Pa. Super. 2006). Neither the Third Restatement nor Hahn (whether by design or by default) was encompassed in the issues the Court had agreed to hear in Beard. Perhaps the defendant in Beard preserved the issue, we don’t know, but that didn’t matter since the defense cross-petition for allocatur in Beard was denied. Beard v. Johnson & Johnson, Inc., 13 A.3d 473 (Pa. 2010) (table) (denying No. 72 WAL 2010, with the defendant as petitioner). Because the only appeal that could have raised the Restatement issue was denied, Beard was of no more weight than the non-merits dismissals discussed by the Third Circuit in Covell.
Second, who cares about a “consensus”? Certainly not Pennsylvania courts, since Azzarello super-strict liability itself is an outlier theory not followed by any other state. The original Berrier prediction was certainly not predicated on any “consensus,” let alone a “majority consensus” (the actual phrase used in Beard) since it had only the original Phillips concurrence to consider. Nor is the word “consensus” used anywhere in Covell. Indeed the only discussion of “conflict” in Covell was the avoidance of “intra-circuit conflict of precedent” − by requiring that the Third Circuit’s prior decisions be followed. 651 F.3d at 363-64. There is not even a suggestion in Covell or Berrier that some sort of “consensus” on the Pennsylvania Supreme Court is a prerequisite to the Erie prediction that the Third Circuit has twice made.
Third, there is no “indicat[ion] in Beard that the Restatement Second remains the law in Pennsylvania.” 2012 WL 2552243, at *9. The defendant won, on alternative grounds. To the extent anything at all was said about the Third Restatement by the four-justice majority in Beard it was favorable:
It may be cogently argued that risk-utility balancing is more legitimately assigned to a jury, acting in its role as a voice for the community and with the power to decide facts, rather than to a trial judge acting on a summary record. Indeed, such is the approach of the Restatement Third,
Beard, 41 A.3d at 838 n.18. As we pointed out in our prior Beard post, three other justices specifically “distanced” themselves from that footnote. See Id. at 838 (concurring opinion). But for purposes of the current discussion the important point is that, even in Beard, four justices (at least, the concurrence did not tip its hand either way), a majority, remained favorably inclined towards the Third Restatement. There’s simply no basis in Beard to reach a diametrically opposite conclusion, as Sikkelee did.
Finally, the “rationale in Milesco” (meaning Milesco v. Norfolk Southern Corp., 2010 WL 55331 (M.D. Pa. Jan. 5, 2010), mentioned previously in Sikkelee), was precisely the Bugosh means something argument (Milesco used the term “clear indication”) that the Third Circuit considered and definitively rejected in Covell.
What we see in Sikkelee is extraordinary. We’re not aware of a minority concurrence ever being used anywhere to overturn two controlling appellant precedents, both of them unanimous and the most recent (at the time) less than a year old. This is judicial nihilism, pure and simple − a sharp stick in the eye of stare decisis. We also suspect (we have no involvement in Sikkelee) that employment of a foundationally improper legal standard in that litigation must inevitably so thoroughly taint any trial in Sikkelee that any verdict will not be worth the effort. Given both Berrier and Covell, we’d find the avenue of seeking an extraordinary writ from the Third Circuit very tempting.
We frankly don’t know whether or not the Pennsylvania Supreme Court will ever adopt the Third Restatement. We’d like it to (Bexis has been trying to make that happen for the better part of a decade), but that’s hardly a done deal. However, until that Court decides the question, one way or the other, the lower federal courts in Pennsylvania are required by stare decisis to follow the predictions of the Third Circuit on Pennsylvania law, just as they’re required to follow the Court of Appeals in all other matters. The alternative is chaos, with each judge goes off on his or her own tangent depending on his or her own (pro-plaintiff or pro-defendant) proclivities. That’s not the way our judicial system works, or is supposed to work.