Federal Court Versus State Court: Which Restatement Of The Law Of Torts Applies In Pennsylvania?

The Third Circuit Court of Appeals has once again affirmed that federal courts sitting in diversity and applying Pennsylvania law to product liability cases should look to Sections 1 and 2 of the Restatement (Third) of Torts, not the standards set forth in Section 402A of the Restatement (Second) of Torts. As a result, there continues to be uncertainty in this area of the law, and "forum shopping" between state versus federal court in Pennsylvania becomes even more of a strategic decision.

Three Third Circuit decisions have now predicted that if the Pennsylvania Supreme Court were confronted with this issue, it would adopt the Third Restatement of Torts with respect to product liability actions, rather than continue to apply the Second Restatement. At the federal district court level, there has been a split among federal court judges—some holding that the Second Restatement should apply because the state Supreme Court has not affirmatively adopted the Third Restatement, while other district court judges have held that the Third Restatement must apply because the Third Circuit's prediction that the Supreme Court would adopt the Third Restatement is binding upon federal district courts sitting in diversity.

On three prior occasions, the Third Circuit has ruled that the Pennsylvania Supreme Court has not issued a definitive opinion as to whether the Third Restatement of Torts or the Second Restatement of Torts applies to strict liability and product defect cases. Therefore, federal courts applying substantive law must predict how the Commonwealth of Pennsylvania's highest court would decide the case. In its 2011 Covell v. Bell Sports, Inc. decision, the Third Circuit affirmed the district court's application of the Third Restatement, and allowed the defendant to rely on evidence of compliance with industry and governmental standards on the issue of whether a product was "defective" or not. The Covell decision reaffirmed the Third Circuit's 2009 decision in Berrier v. Simplicity Manufacturing, Inc., in which the Court also predicted that the Pennsylvania Supreme Court would not continue to apply the Second Restatement, but rather, would adopt the Third Restatement of Torts for product liability actions. The most recent pronouncement on this topic was in Sikkelee v. Precision Airmotive Corp, et al, where, although the Third Circuit refused to accept an interlocutory appeal on the issue, the Court handed down an Order in which it once again...