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September 21, 2001


The opinion of the court was delivered by: McCLURE, District Judge.



This is a products liability action. Before the court is plaintiffs' motion for reconsideration of the dismissal of their strict liability claims. Plaintiffs contend that there has been a recent change in the law, as evidenced by a Pennsylvania Superior Court case decided after this court's dismissal of their claims. We disagree, and will deny the motion.

On May 6, 1999, plaintiffs Shirley and John Hittle (the Hittles) commenced this action with the filing of a complaint, alleging that a fire in their home was caused by a household lighter manufactured and distributed by defendants Scripto-Tokai Corporation, Tokai Corporation, and JMP Mexico, S.A. de C.V (collectively, ("Tokai"). John Hittle is the administrator of the estate of Jessica Hittle, who was fatally injured in the fire. The complaint advances legal theories of strict products liability, negligent design, negligent failure to warn, breach of warranty, and misrepresentation. On December 6, 1999, we dismissed the strict liability claims under Federal Rule of Civil Procedure 12(b)(6) on the grounds that Jacob Hittle, the four-year-old child who lit the flame which caused the fire, was not an "intended user" of the lighter. Our decision was premised on the holding of Griggs v. BIC Core., 981 F.2d 1429 (3d Cir. 1992), a Third Circuit case addressing that very issue.

On May 25, 2001, the Hittles filed a motion for reconsideration of the December 6, 1999 order. The motion was filed after the Pennsylvania Superior Court's April 10. 2001 decision in Phillips v. Cricket Lighters, 773 A.2d 802 (Pa. Super. 2001), which holds, directly contrary to Griggs, that liability under strict liability principles does not require the use of the product by an intended user. According to the Hittles, Phillips supercedes Griggs in the former's prediction of the Pennsylvania Supreme Court's treatment of the "intended user" concept in strict liability.


As a preliminary matter, we note that we may and will exercise discretion to entertain the Hittles' motion for reconsideration notwithstanding the fact that it was filed some 16 months after our order dismissing the strict liability claims. Even though the Hittles technically violated Local Rule 7.10,*fn1 we will excuse this violation because Phillips was not decided until April 2001, well over a year after our dismissal order, and because the Hittles did not delay in filing their motion. Accord Philadelphia Reserve Supply Co. v. Nowalk & Associates, Inc., 864 F. Supp. 1456, 1460-61 (E.D. Pa. 1994) (entertaining "untimely" motion for reconsideration after state appellate court commented on the relevant issues); Graco Children's Products v. Reoalo International LLC, No. CIV.A. 97-CV-6885, 2001 WL 392886, at *1 (E.D. Pa. April 17, 2001)

This case raises sensitive issues relating to a federal court's duties to interpret state law. We first set out some general principles. It is axiomatic that a federal court sitting in diversity must apply state substantive law and federal procedural law. Chamberlain v. Giampapa, 210 F.3d 254, 258 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). In this case, it is undisputed that Pennsylvania law applies. In the absence of a reported decision by the state's highest court addressing the precise issue before it, a federal court applying state substantive law must predict how the state's highest court would rule if presented with the case. See Nationwide Mutual Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000) (citation omitted). A federal court may give due regard, but not conclusive effect, to the decisional law of lower state courts. Id. (citation omitted). "The opinions of intermediate appellate state courts are "not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.'" Id. (quoting West v. AT & T Co., 311 U.S. 223, 237 (1940)). "In predicting how the highest court of the state would resolve the issue, [a federal court] must consider "relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'" Id. (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980))

From the above recitation of the law, it is apparent that in general, a federal court applying state law, when faced with an absence of state supreme court precedent, must predict how the state supreme court would decide the issue before it. Less clear, however, is the extent to which a federal district court is bound by its court of appeals' interpretation of state law, especially if a subsequent state appellate court contradicts the federal appellate court. The Third Circuit has not given very much guidance on the subject, but has suggested that the only law that is binding on a federal court is the jurisprudence of the state supreme court, and that even a decision by a federal court of appeals does not bind a district court. See. e.g., Aceto v. Zurich Insurance Co., 440 F.2d 1320, 1321 (3d Cir. 1970) ("No one may properly rely upon what we have held as more than persuasive on a question of Pennsylvania law so long as the Supreme Court has not ruled upon that legal question."); but see Lenning v. New York Life Insurance Co., 130 F.2d 580, 581 (3d Cir. 1942) (indicating that where a federal court of appeals interprets state law, a district court is bound by that interpretation at the retrial of the case unless it is clear by subsequent statute or binding state court decision that the court of appeals erred) District courts in this circuit have been inconsistent, but it has been written that a district court is bound by its court of appeals on questions of state law unless "later state court decisions indicate that the Court of Appeals' earlier prediction of state law was in error." Srepanuk v. State Farm Mutual Automobile Insurance Co., No. CIV. A. 92-6095, 1995 WL 553010. at *2 (E.D. Pa. September 19, 1995) (collecting cases). We will assume without deciding that we are not strictly bound by Griggs and that we are free to make a contrary prediction.


The Griggs decision, written in 1992 by a three-judge panel, featured facts similar to those of the instant case. The Griggses sued BIC Corporation on behalf of their 11-month-old son Zachary, who was injured when his three-year-old stepbrother Kenneth started a fire in the their home by igniting a BIC disposable butane cigarette lighter. The Griggses asserted claims of strict liability and negligent design of the lighter, specifically contending that the lighter should have been designed to be "childproof." The Third Circuit, applying Pennsylvania law and Section 402A of the Restatement (Second) of Torts, found that the Griggses could not sustain a claim for design defect because three-year-old Kenneth was not an intended user of the lighter.

The court began by stating that the first task of a district court in analyzing a claim for a design defect is to determine whether, under the Pennsylvania Supreme Courts interpretation of § 402A as set forth in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), the risk of loss should fall on the manufacturer as a matter of law. Griggs, 981 F.2d at 1432. In other words, the court must decide whether the product is "unreasonably dangerous." See id. at 1432 n. 4 (citations omitted). Only after the court decides this issue in the affirmative may the case be submitted to the jury for consideration of the facts. Id. at 1432 (citation omitted). That is, [La] judicial determination that Pennsylvania's social policy does not support placing the risk of loss on the manufacturer in a strict products liability case is the equivalent of a judicial conclusion that the product is not defective under strict products liability law . . . Id. at 1433. Applying Azzarello, the court stated that "the existence of a defect is intimately related to the product's intended use because the product is defective only if it left the suppher's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use." Id. (citing Azzarello, 391 A.2d at 1027). The Griggs court designated the "intended use" inquiry as the "Azzarello approach," and predicted that the Pennsylvania Supreme Court would adopt this approach in order to make the "threshold determination" that is necessary before the case is submitted to the jury. Id. at 1433 n. 6 (citations omitted)

The court then applied the "intended use" approach to the lighter, agreeing with the trial court that "a product may not be deemed defective unless it is unreasonably dangerous to intended users." Id. at 1433 (citation omitted). The circuit court found that Kenneth was not an intended user of the lighter because he was only three years old. Id. The Griggses contended that the district court erred when substituting intended user for intended use. The Third Circuit rejected this argument: "This is an illusory distinction . . . because the concept of intended use impliedly encompasses the participation of an intended user. Thus, because children are not intended users, SIC is not strictly liable." Id. The Griggses also maintained that Kenneth did in fact use the lighter for its intended use, i.e., to produce a flame. The Third Circuit responded that "this suggestion requires a convoluted reading of the standard that is nowhere suggested by the Pennsylvania courts' application." Id. at 1433 n. 7.

Finally, the Griggs court declared that even if use by a child was foreseeable, SIC was free from liability: "Alternatively, the Griggses seem to be trying to equate intended use with expected use, which then allows them to connect children with lighters by using foreseeability evidence, where something that. may be foreseeable may be expected. Foreseeability, however, plays no part in the initial determination ...

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