trial." Id. at 2511. However, if the evidence is merely "colorable" or is "not significantly probative," summary judgment may be granted. Id.
In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, , 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Following such a showing in a case where the non-moving party is the plaintiff and therefore bears the burden of proof, it must by affidavits or by the depositions and admissions on file "make a showing sufficient to establish the existence of [every] element essential to that party's case." Id. at 2552-53; Anderson, supra, 106 S. Ct. at 2514; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Fed.R.Civ.P. 56(e). In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party, Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 106 S. Ct. at 2513.
In a diversity action such as this one, the court is obliged to follow the law of the appropriate state and, where necessary, to predict state law based on existing state decisions. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). The court must therefore decide whether, under Pennsylvania law, strict liability will lie under § 402A for cigarettes which involve commonly known inherent risks.
The court notes that United States District Judge Norma L. Shapiro of this court recently addressed the same issues, and strict liability theories, of "design defect" and "risk-utility" that are presently before this court. The court believes that Judge Shapiro's analysis and reasoning as to those issues and claims are both persuasive and correct, and the court shall follow them and rely upon them here. See Gunsalus v. The Celotex Corp., et al., 674 F. Supp. 1149, 1157-1159 (Section III of the Opinion) (E.D.Pa., Opinion filed 1987).
Plaintiff has the burden of proving defective design. On this record, plaintiff will not be able to demonstrate that there is something wrong with the design of cigarettes or how the design could be improved. Plaintiff has not identified any witnesses who will, or can, testify to either point. Indeed, Count I, the only remaining count, of plaintiff's complaint alleged that cigarettes are " incapable of being made safe for their intended use" (emphasis added), an allegation that is entirely inconsistent with plaintiff's defective design claim.
After direct inquiry at oral argument on the instant motion the court cannot say that plaintiff's counsel had any Fed.R.Civ.P. 11 good faith basis for asserting this recent defective design claim. Plaintiff's counsel's only asserted basis for this claim was a New York Times newspaper article which he said he read the week of the September 29, 1987 oral argument on defendants' summary judgment motion. This was well after plaintiff's counsel sent opposing counsel the one page revision to plaintiff's pretrial theory statement. According to plaintiff's counsel, the author of the newspaper article indicated that a cleaner cigarette is possible. None of plaintiff's experts will testify as to how cigarettes can be made safer. Plaintiff's pretrial memorandum does not list a single witness or document or piece of evidence that will mention a safer cigarette. Plaintiff's pretrial statement of record still does not mention any defective design claim. Plaintiff has not sought to amend her complaint to include a defective design claim.
If there were contaminants other than those commonly known to be present in their cigarettes, defendants presumably could be exposed to liability under Pennsylvania law. Plaintiff, however, has no evidence to support any such possibility.
In this action there has been more than adequate time for discovery
and plaintiff has failed to make a showing sufficient to establish the existence of an element essential to her case (i.e., defective design), and on which she would bear the burden of proof at trial.
Plaintiff has not proffered any evidence to support her untimely safer cigarette design theory. Since plaintiff's claim cannot survive defendants' motion for summary judgment on her safer cigarette design argument, the only remaining issue is whether Pennsylvania law embraces a "risk-utility" approach to the subject of design defects. If Pennsylvania law does provide for strict liability under a risk-utility analysis, then plaintiff's claim can survive defendants' motion for summary judgment. If, on the other hand, as the court believes, the Pennsylvania courts would not impose strict liability on a manufacturer under a risk-utility approach, then plaintiff has no legal claim.
Plaintiff's counsel cited Lewis v. Coffing Hoist Div., supra, to support plaintiff's contention that Pennsylvania law imposes liability based on a risk-utility argument; however, that case lends no such support. In Lewis the Pennsylvania Supreme Court merely mentioned the risk-utility approach as one of a few approaches that have been fashioned by "the various jurisdictions" in an attempt to answer the question of when a design defect may be found to exist. Lewis, supra, 528 A.2d at 593. A fair reading of Lewis tells us that the decision devotes more time and attention to the court's key decision in Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), rather than any leaning to the adoption by the court of the risk-utility doctrine.
The court believes and accordingly concludes that Pennsylvania courts have not adopted, and will not adopt, the risk-utility theory of liability as the present state of the law. Gunsalus, supra, slip op. at 18.
For all of the foregoing reasons defendants' renewed motion for summary judgment will be granted and judgment will be entered in favor of defendants and against plaintiff.
An appropriate Order will be entered.
AND NOW, TO WIT, this 9th day of February, 1988, in accordance with the accompanying Memorandum filed this date, IT IS ORDERED as follows:
1. Defendants Brown & Williamson Tobacco Corporation and Lorillard, Inc.'s renewed motion for summary judgment is hereby granted; and
2. Judgment is hereby entered in favor of defendants Brown & Williamson Tobacco Corporation and Lorillard, Inc. and against plaintiff Gisela Miller.