The opinion of the court was delivered by: Cindrich, District Judge.
I Plaintiffs Negligence Claim
Defendants argue that the court erred by sua sponte granting summary
judgment to plaintiff on its negligence claim. The court did no such
thing. In resolving defendants' motion for summary judgment, the court
was required to address each element of the cause of action (duty, breach
of duty, causation and damages.) We rejected defendants' argument that
they did not owe plaintiffs a duty as a matter of law. As we explained,
Griggs v. BIC Corp., 981 F.2d 1429 (3d Cir. 1992), and Hittle v.
Scripto-Tokai Corp., 2001 WL 1116556 (M.D.Pa. September 21, 2001),
mandated that defendants did owe plaintiffs a duty. This finding was
sufficient to defeat defendants' motion. However, because a trial would
be necessary, we examined the other elements to ascertain what issues
actually needed to be tried. Fed.R.Civ.P. 56(d). Thus, we concluded that
defendant breached its duty as a matter of law by not manufacturing a
"child-resistant" lighter.*fn1 Defendants never contended that their
product had appropriate child-resistant features and they apparently do
not take issue with this portion of our opinion. As to causation, we
found: "There are material disputes of fact that prevent causation from
being established as a matter of law." November 2, 2001 Memorandum at 3.
We noted that a jury would have to determine damages. In conclusion, we
stated: "The case will proceed to trial on the issues of causation and
damages." Id. Thus, defendants have misread our opinion. We simply did
not enter summary judgment or direct a finding of negligence against
II Plaintiff's Strict Liability Claim
We granted plaintiffs motion for reconsideration of their products
liability claim because of developments in the law in Pennsylvania and in
the Court of Appeals. See Phillips v. Cricket Lighters, 773 A.2d 802,
2001 WL 346061 (Pa.Super. April 10, 2001). Defendants' reliance on
Griggs is misplaced. In Surace v. Caterpillar, Inc., 111 F.3d 1039, 1046
n. 6 (3d Cir. 1997), the Court of Appeals stated that Griggs had no
precedential value as to the approach to be used in strict products
liability claims. Instead, the Court of Appeals directed us to follow the
risk-utility analysis outlined in Motter v. Everest & Jennings,
Inc., 883 F.2d 1223, 1227 (3d Cir. 1989). In Phillips, the Pennsylvania
Superior Court employed the risk-utility analysis in a very analogous
case and we adhere to our conclusion that Phillips is presumptive
evidence of how the Pennsylvania Supreme Court would decide the matter.
We respectfully disagree with our sister court's opinion in Hittle v.
Scripto-Tokai Corp., 166 F. Supp.2d 159 (M.D.Pa. 2001)*fn2, in this
regard. We also adhere to our conclusion that the products liability
claim, in its current procedural posture, may support punitive damages.
Defendants ask us to certify our memorandum opinion for interlocutory
appeal pursuant to 28 U.S.C. § 1292 (b). There are several
preconditions to such a certification: (1) the order must involve a
"controlling question of law"; (2) there must be a "substantial ground
for difference of opinion"; and (3) immediate appeal must "materially
advance the ultimate termination of the litigation." As this case
presently stands, there will be a trial on plaintiffs negligence claim
under negligent design and negligent failure to warn theories). In
addition, there may be additional pretrial development of plaintiffs
strict liability claim. Our November 2, 2001 memorandum directed the
parties to propose a new case management order, if necessary.
a. Controlling Question of Law
The "duty" element of the negligent design claim involves a controlling
question of law. The strict liability claim also involves a controlling
question of law. As to both of these claims, reversal of our conclusions
by the Court of Appeals would (legally or practically) result in their
dismissal. The negligent failure to warn claim does not turn on a
controlling question of law. Rather, the Court of Appeals has instructed
us that such issues are best resolved by a jury. Metzgar v. Playskool,
Inc., 30 F.3d 459, 460, 465-66 (3d Cir. 1994).
b. Substantial Ground for Difference of Opinion
We are unaware of any substantial ground for difference of opinion on
the negligent design claim. The Court of Appeals has emphasized the
continuing viability of Griggs for negligence claims and our analysis
agrees with Hittle. Indeed, defendants do not seek reconsideration of our
denial of their motion for summary judgment on the negligent design
claim. Defendants' Motion for Reconsideration at 3 n. 2. We acknowledge
that Hittle dismissed a similar negligent failure to warn claim.
However, as we explained above, this issue must be submitted to a jury
for an evaluation of the evidence rather than decided on legal
principles. As to the products liability claim, there is substantial
ground for difference of opinion. This is an unsettled and complex area
of Pennsylvania law. The Pennsylvania Supreme Court has not resolved the
issue and the relevant opinions from the Superior Court are arguably
contradictory. Hittle's analysis of the recent Phillips decision is
thorough, well-reasoned and adverse to ours.
c. Advancement of the Litigation
We conclude that an interlocutory appeal would not advance the
litigation. Appellate proceedings will not prevent a trial of the
negligent design and negligent failure to warn claims. Indeed, defendants
seek a trial on the negligence claim. See Defendants' Proposed Order of
Court. Based on the parties' approach to this litigation, we believe
defendants' vow that "appeal is certain." Thus, we see little downside to
trying the negligence and strict liability claims together. The parties
can then present all of their appellate issues at once. We acknowledge
that the Pennsylvania Supreme Court has granted allocatur in Phillips.
However, we do not believe that it would be practical or fair to stay
this case pending the Supreme Court's decision in that matter. Likewise,
it would not be wise or efficient ...