plaintiffs' claim based upon defendants' choice of restraint system
consisting of a two-point passive shoulder belt and a manual lap belt. In
that same order, we denied defendants' motion for summary judgment as to
claims that "(1) the Protégé was negligently designed and
defective in design in that it lacked an adequate seat back, seat track
mechanism and knee bolster; and (2) [that] defendants failed to warn
adequately of the risk of harm associated with the lack of an adequate
seat back, seat track mechanism and knee bolster." See Order #1.
Also on September 25, 2001, we denied defendants' motion in limine to
permit evidence related to the existence of manual lap belts as part of
the Protégé's available restraint system and their lack of
use by the car's occupants. See Order #2.
Defendants subsequently moved for clarification of the court's orders of
September 25, 2001.
On October 25, 2001, plaintiffs filed a motion in limine to adopt the
burden of proof for a crashworthiness case as adopted in Stecher v. Ford
Motor Co., 779 A.2d 491 (Pa. Super. 2001), appeal granted by 2001 WL
1630213 (Pa. Dec. 19, 2001) (TABLE, NO. 662). The motion was fully
By order dated December 19, 2001, defendants' motion for clarification
was denied. There, we ruled that plaintiffs' claim that the
Protégé was negligently designed and defective in design in
that it lacked an adequate knee bolster does not present a challenge to a
restraint system option available to defendants under FMVSS 208 and,
therefore, is not preempted. Cf. Geier v. Am. Honda Motor Co., Inc.,
529 U.S. 861 (2000). We deferred for another time our ruling on
defendants' challenge to the constitutionality of the Pennsylvania's
Occupant Protection Act, 75 Pa. Con. Stat. Ann. § 4581(e) as applied
to the instant case. Defendants were granted leave to file an additional
motion in limine addressing the sufficiency of the evidence in support of
plaintiffs' knee bolster claim and/or defendants' argument that
Pennsylvania's Occupant Protection Act is unconstitutional as applied.
On January 14, 2002, defendants filed a motion in limine to preclude
evidence regarding the existence of a defect in the knee bolsters in the
Protégé and to preclude application of Pennsylvania's seat
belt statute as unconstitutional. The motion was fully briefed.
By order dated March 20, 2002, pursuant to 28 U.S.C. § 2403(b), the
court certified to the Attorney General of the Commonwealth of
Pennsylvania that the constitutionality of Pennsylvania's Occupant
Protection Act is drawn in question with respect to plaintiffs'
crashworthiness claim, and provided the Attorney General with notice of
its statutory right to intervene. The Attorney General's office
subsequently notified the court that it would not be entering an
appearance or intervening in this action.
Set forth below is the court's ruling on the aforementioned motions in
I. BURDEN OF PROOF IN CRASHWORTHINESS CASES
We note from the outset that this case raises difficult issues relating
to a federal court's duties to interpret state law.
Plaintiffs filed a motion in limine on October 25, 2001, requesting
that the court adopt as the law of the Commonwealth of Pennsylvania the
so-called Fox-Mitchell rule — recently adopted by the Pennsylvania
Superior Court in Stecher v. Ford Motor Co., 779 A.2d 491 (Pa. Super. 2001),
appeal granted by 2001 WL 1630213 (Pa. Dec. 19, 2001) (TABLE, NO.
662) — as it pertains to the burden of proof in the context of the
instant crashworthiness case.
Defendants, on the other hand, contest the adoption of Stecher on the
grounds that it essentially overrules a prior decision of the same court
(e.g., Kupetz v. Deere & Co., 644 A.2d 1213 (1994) (finding enhanced
injury doctrine a permissible theory of recovery in Pennsylvania)), and
contravenes basic principles of Pennsylvania tort law. Additionally,
defendants submit that we should not adopt Stecher as a prediction of
Pennsylvania law given Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976),
which set forth a burden of proof in crashworthiness cases different from
that set forth in Stecher.
A. Prediction of State Law In Federal Court
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 154, 158 (3d Cir. 2000) (citing Erie R.R. v.
Tompkins, 304 U.S. 64, 78 (1938)). See also Walsh v. Strenz,
63 F. Supp.2d 548, 551 (M.D. Pa. 1999) ("A federal court sitting with
diversity jurisdiction applies the law of the state whose law governs the
action, Greater New York Mutual Insurance Co., 85 F.3d 1088, 1091 (3d
Cir. 1996), which generally is the law of the forum state. Clark v.
Modern Group. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) ."). In this case,
it is undisputed that Pennsylvania law applies.
"The federal court may not impose its view of what the state law should
be, but must apply existing state law as interpreted by the state's
highest court in an effort to determine how the state court would decide
the precise legal issue before the federal court." Walsh, 63 F. Supp.2d
at 551 (citing Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440,
1445 (3d Cir. 1996)). 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). The
standard used by a federal court when predicting how the state's highest
court would rule on the issue is as follows:
[T]he federal court must look to decisions of any
intermediate state appellate court, other federal courts
interpreting the law of the state, and other state supreme
courts that have decided the issue, as well as analogous
decisions, dicta, scholarly works, and any other reliable
data which would tend to show convincingly how the
state's highest court would rule.
Walsh, 63 F. Supp.2d at 551 (citing Paolella v. Browning-Ferris, Inc.,
158 F.3d 183, 189 (3d Cir. 1998); Koppers Co., Inc., 98 F.3d at 1445)).
See also McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir.
1980). "Intermediate appellate court decisions are given `significant
weight' in the absence of any indication that the state's highest court
would rule otherwise." Walsh, 63 F. Supp.2d at 551 (citation omitted).
It is clear 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. As we pointed
out in our recent opinion in Hittle v. Scripto-Tokai Corp., "[l]ess
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." 166 F. Supp.2d 159, 162 (M.D. Pa. 2001). There, we stated that:
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. 1971) ("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 Lennig 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.'
Stepanuk 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).
Id. Presented with the state court decision of Stecher, "we will assume
without deciding, that we are not strictly bound" by the Third Circuit's
holding in Huddell, and are, therefore, "free to make a contrary
prediction." Hittle, 166 F. Supp.2d at 162.
In Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976), the United States
Court of Appeals for the Third Circuit explained that in an enhanced
injury or crashworthy case, a plaintiff must prove: (1) that a
practicable alternative, safer design existed; (2) what injuries, if any,
would have resulted if the alternative, safer design had been used; and
(3) some method of establishing the extent of the enhanced injuries
attributable to the defective design. See id. at 737-38. There, the court
was predicting New Jersey law.
The Huddell approach "has been followed by the Third Circuit and the
district courts within Pennsylvania when predicting Pennsylvania Law."
Stecher, 779 A.2d at 496, n. 13 (citing Oddi v. Ford Motor Co.,
234 F.3d 136 (3d Cir. 2000), cert. denied, 532 U.S. 921 (2001); Dorsett
v. American Isuzu Motors, Inc., 805 F. Supp. 1212 (E.D. Pa. 1992), aff'd
without opinion, 977 F.2d 567 (3d Cir. 1992); Craigie v. General Motors
Corp., 740 F. Supp. 353 (E.D. Pa. 1990)). Several other circuits have
followed this approach, referred to as the Huddell/Caiazzo approach. The
Huddell/Caiazzo approach "requires a plaintiff to quantify the extent of
his or her injuries that were caused by the defect and permits recovery
from the manufacturer of the product that allegedly enhanced the injures
only for the precise injuries caused by the defective product." Stecher,
779 A.2d at 496 (citing Huddell, 537 F.2d at 738); see also Caiazzo v.
Volkswagenwerk A.G., 647 F.2d 241 (2d Cir. 1981).*fn1
It is the approach articulated in Huddell, along with Oddi, 234 F.3d 136,
and Kupetz, 644 A.2d 1213, that defendants request the court adopt as the
burden of proof in this case. We will, however, decline to do so. After
review of the standard for predicting state law in federal court, we
believe the Pennsylvania Superior Court's decision in Stecher is not
controlling, but must be accorded substantial weight.
In Stecher, the Superior Court of Pennsylvania addressed the precise
issue of the allocation of the burden of proof of an enhanced injury
claim. 779 A.2d at 494. The court noted that "this specific question is
an issue of first impression in the appellate courts of Pennsylvania."
Essentially, Stecher eased the burden of proof for plaintiffs in
crashworthiness cases, departing specifically from the aforementioned
Huddell/Caiazzo approach. The court adopted, instead, the so-called
Fox/Mitchell approach toward allocation of the burden of proof in
enhanced injury cases which "requires a plaintiff to prove only that a
defect was a substantial factor in producing damages over and above those
which were probably caused as a result of the original impact or
collision." Stecher, 779 A.2d at 495, n. 8 (quoting Mitchell v.
Volkswagenwerk, AG, 669 F.2d 1199, 1206 (8th Cir. 1982); citing Fox v.
Ford Motor Co., 575 F.2d 774 (10th cir. 1978)). Once a plaintiff is able
to meet his burden of proof, "`the burden of proof shifts to the
tortfeasors to apportion the damages between them.'" Stecher, 779 A.2d at
495 (citing Trull v. Volkswagen of America, Inc., 761 A.2d 477, 481
(N.H. 2000)). "If the defect `is found to be a substantial factor in
causing an indivisible injury such as paraplegia, death, etc., then
absent a reasonable basis to determine which wrongdoer actually caused
the harm, the defendants should be treated as joint and several
tortfeasors.'" Id. (quoting Mitchell, 669 F.2d at 1206).
The Stecher court set forth the rationale behind the Fox/Mitchell
approach as follows:
This placement of the burden of proof is justified by
considerations of fairness. If we were to impose upon
an injured party the necessity of proving which impact
in a chain collision did which harm, we would actually
be expressing a judicial policy that it is better that
a plaintiff, injured through no fault of his own, take
nothing, than that a wrongdoer pay more than his
theoretical share of the damages arising out of a
situation which his wrong has helped to create. In
other words, the rule is a result of a choice made as
to where a loss due to failure of proof shall fall
— on an innocent plaintiff or on defendants who
are clearly proved to have been at fault.
Stecher, 779 A.2d at 496 (quoting Mitchell, 669 F.2d at 1208).
The majority of jurisdictions to consider the issue at hand have
adopted the Fox/Mitchell approach. Stecher, 779 A.2d at 495.*fn3
Moreover, the Fox/Mitchell approach is reflected in the Restatement
(Third) of Torts, Section 16, providing:
§ 16. Increased Harm Due to Product Defect
(a) When a product is defective at the time of commercial
sale or other distribution and the defect is a substantial
factor in increasing the Plaintiff's harm beyond that
which would have resulted from other causes, the
product seller is subject to liability for the
(b) If proof supports a determination of the harm that
would have resulted from other causes in the absence
of the product defect, the product seller's liability
is limited to the increased harm attributable solely
to the product defect.
(c) If proof does not support a determination under
Subsection (b) of the harm that would have resulted in
the absence of the product defect, the product seller
is liable for all of the plaintiff's harm attributable
to the defect and other causes.
Stecher, 779 A.2d at 495-96 (quoting Restatement (Third) Torts, §