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December 28, 2001


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 defendants.

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.

III Interlocutory Appeal

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 ...

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