Pennsylvania Product Liability Law – Still No Resolution Regarding the Third Restatement
In a recent decision, the Pennsylvania Supreme Court issued an interesting opinion in a products liability matter, Beard v. Johnson & Johnson, Inc., No. 35 WAP 2010, slip op. (Pa. March 22, 2012). The medical device in question was designed for use in a variety of different surgical applications. The plaintiffs claimed that risk-utility balancing concerning the design of the device should be limited to the particular use to which the device was put in the plaintiff's surgery, thus ignoring other potential uses for the product. The Pennsylvania Supreme Court refused to limit the scope of risk-utility balancing in that fashion, noting:
For better or worse, this Court’s decisions have relegated our trial courts in the unenviable position of “social philosopher” and “risk-utility economic analyst.” This having been done -- and as the present case does not provide an appropriate opportunity for reconsideration of such assignment – we decline to require the trial courts to put on blinders. It should be enough to say that a product’s utility obviously may be enhanced by multi-functionality, so that it would be imprudent to deny trial courts the ability to assign some weight to this factor in assessing product design. . . . [Plaintiff’s] concessions of the net social utility calculus in the area of the [device’s] primary design [a different kind of surgery] are irreconcilably inconsistent with his claim of an inherent design defect. . . .. [T]here is much at stake in the condemnation of a product’s design, above and beyond any individual damages award or awards, including the impact on product costs and design innovation. On balance, we differ with [plaintiff's] position that the desire to streamline a particular facet of products litigation should be accorded priority over the wider-ranging assessment which was obviously intended from the outset, as manifested in the above characterizations of the trial court’s role, in the open-ended factors which have been accepted by Pennsylvania courts as the basis for risk-utility review, and otherwise.
Beard, slip op. at 24-24 (footnotes omitted).
At least with respect to design defect claims in Pennsylvania, defendants will now be able to defend by relying on the benefits of their designs in other uses of the product. This arguably should apply both to the Pennsylvania-peculiar judicial balancing of risks and benefits required under existing law (see Beard, slip op. at 25), and to the defense counsel’s presentation of a risk/utility defense to the jury at trial. See Phatak v. United Chair Co., 756 A.2d 690 (Pa. Super. 2000) (evidence bearing on same risk utility factors may be submitted to the jury in design defect cases). The Beard opinion will help defendants by allowing them to compare their design to the plaintiff's alternative design across the entire spectrum of a product's intended uses. Since the plaintiff's alternative design is usually tailored to address only the accident scenario in a given case, the alternative's adverse consequences affecting many other people who use the product will put before the jury the same broad perspective of product design that manufacturers utilize in the real world.
Unfortunately, the Pennsylvania Supreme Court yet again missed a perfect opportunity to finally address Pennsylvania’s idiosyncratic product liability law, failing to adopt the Restatement Third. Instead, we are left with the convoluted form of strict liability expressed years ago by Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). Justice Saylor, who wrote the opinion in Beard, stated in the opinion one of "several justices" on record as supporting a shift away from Azzarello's extreme separation of "strict liability" from "negligence." Slip op. at 23. Regrettably, "a majority consensus has not yet been attained in any case." Id. Although Justice Saylor was careful to avoid anything that would undercut the Third Circuit's prediction that the Court would eventually move to the Third Restatement, the Court has yet to adopt the Restatement. See slip op. at 23 (noting the Third Circuit prediction in Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011), and "[r]ecogniz[ing] the continuing state of disrepair in the arena of Pennsylvania strict-liability design defect law").
The Court’s lack of a majority consensus in support of adopting the Third Restatement of Torts is best demonstrated by a simple footnote. The Beard opinion mentions the Third Restatement favorably in a footnote. Id. at 26 n.18. On the other hand, a three-justice concurrence (Baer, McCafferty, Todd, JJ.) disassociates itself from footnote 18, while also pointing out the rather unfortunate fact that “[defendants] failed to raise this [Third Restatement] issue in their Pa .R.A.P. 1925(b) statement of errors complained of on appeal.” Id. at 2. Nevertheless, these three justices steadfastly claim to “express no opinion on the merits of the adoption of the Restatement Third.” Id. Of equal interest, not one of these justices comments negatively about the Third Circuit's prediction in Covell of an eventual change. It would thus appear that a four justice majority on the current Pennsylvania Supreme Court will dittch Azzarello at some point in the not too distant future. Accordingly, any defendant adversely affected by Azzarello should preserve this issue from the outset and avoid preclusion of such an argument at the appellate level. See Schmidt v. Boardman, 608 Pa. 327, 353, 11 A.3d 924, 940 (2011).
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