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April 22, 2002


The opinion of the court was delivered by: James F. McClure, Jr., United States District Judge:



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 briefed.

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 limine.



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.

B. Huddell

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.

C. Stecher

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." Id.*fn2

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 ...

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