It’s a beautiful day in the Philadelphia area.  The humidity is down, the sun is out, the breeze is delightful.  If we were morning radio jocks, we’d be telling you to drop your briefcases and laptops and pick up your Frisbees, suntan lotion and beach chairs and head for the nearest park, lake or

When we saw the first one we thought, that’s odd, but it’s mostly a malpractice claim pretty far from our sweet spot.  When we saw the second one, we thought, maybe we should blog about this now….  But the result was mostly unfavorable, and other, more significant things were happening.  But now that we’ve seen

The Pennsylvania Supreme Court yesterday decided Beard v. Johnson & Johnson, Inc., No. 35 WAP 2010, slip op. (Pa. March 22, 2012), a decision that is good, bad, and ugly at the same time.  We say “ugly” because the entire decision – a discussion of strict “malfunction theory” liability in the context of a

We’ve discussed the so-called “Berrier question” – whether the Third Circuit’s prediction that Pennsylvania law would switch to the Third Restatement from the old Azzarello form of super-strict liability should continue to apply – before.  Our position is that stare decisis required application of Berrier, until the Pennsylvania Supreme Court said otherwise, and

We’re talking about the Restatement (Third) of Torts, Products Liability §2, to be precise.  Being in Pennsylvania, for quite some time we’ve had more than a passing interest in this section  of the Third Restatement and its essentially negligence (“reasonableness”)-based theory of product liability.   For decades, Pennsylvania followed a “ne’er the twain shall meet” rule that strictly separated strict liability from “negligence concepts.”  That approach was exemplified by Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978).  But in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), three justices of the Pennsylvania Supreme Court opined that a quarter century had proven wanting the “strict liability” of the Azzarello sort, and that Pennsylvania law should move to the negligence-based standard of §2. 841 A.2d at 1015-16.  Full disclosure – Bexis filed a brief for PLAC in Phillips on the Restatement Third issue.

While three justices aren’t a majority of Pennsylvania’s seven-member Supreme Court, in Phillips they outnumbered the court’s Azzarello supporters 3-2 (there was a vacancy and an obscure concurrence in the result).  In almost seven intervening years, the court has failed to address the issue squarely, although not for want of trying.  The court thought it was going to decide the issue in Straub v. Cherne Industries, 880 A.2d 561 (Pa. 2005), but instead found there had been a waiver.  The court tried again in Bugosh v. I.U. North America, Inc., 971 A.2d 1228 (Pa. 2009), but dismissed the appeal as improvidently granted after it turned out that the defendant was an intermediate seller, not a true manufacturer (that makes a difference in the Third Restatement, but it’s not important here).

Finally, the Third Circuit got fed up with the issue remaining undecided, and after trying unsuccessfully to get the Pennsylvania Supreme Court to accept a certified question, took the metaphorical bull by the horns and predicted that the court would eventually adopt the Third Restatement in Berrier v. Simplicity Manufacturing, 563 F.3d 38, 57 (3d Cir. 2009).  As we discussed in an earlier post, that’s led to still more squabbling among the federal district courts.

Full disclosure – Bexis filed amicus briefs for PLAC in all of those other cases on the Third Restatement issue.

So the Third Restatement question has vexed Pennsylvania product liability law for quite a few years.  Well, not too long ago we (well, Bexis, obviously) was expressing his frustration with this indeterminate state of affairs with regular blog reader whom we ‘re not sure wants to be publicly identified, so we won’t, and said reader mentioned that his/her home state of Wisconsin was in somewhat of the same boat.


Continue Reading What’s Up With The Third Restatement?