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Jason Sweitzer, et al v. Oxmaster

December 22, 2010


The opinion of the court was delivered by: Gene E.K. Pratter, J.


In the course of performing his job as a paste mixer operator on April 29, 2009, Jason Sweitzer was scraping residue inside a paste mixer manufactured by Oxmaster, Inc. when a mixer paddle allegedly amputated Mr. Sweitzer's right index finger. Mr. Sweitzer and his wife, Kristin Sweitzer, filed this products liability action against Oxmaster Inc. and Wirtz Manufacturing Company, Inc. in the Court of Common Pleas of Philadelphia County, Pennsylvania, on November 3, 2009, and the case was removed to this Court on November 24, 2009 on the basis of diversity jurisdiction. Mr. and Mrs. Sweitzer are proceeding on strict liability theories of liability.

The Sweitzers filed three motions in limine in anticipation of the upcoming jury trial: 1) Plaintiffs' Motion in Limine to Preclude Evidence of Negligence Concepts at Trial (Docket No. 25) (hereafter "Pls.' Mot. No. 25"); 2) Plaintiffs' Motion in Limine to Preclude Any Evidence Regarding Plaintiff Jason Sweitzer's Alleged Failure to Lockout and Tagout (Docket No. 24) (hereafter "Pls.' Mot. No. 24"); and 3) Plaintiffs' Motion in Limine to Preclude Any Evidence of Compliance with Industry Standards and OSHA Government Regulations (Docket No. 26) (hereafter "Pls.' Mot. No. 26"). Oxmaster and Wirtz oppose these motions.*fn1 Because each of these motions raise a common issue of law-whether Section 402A of the Restatement (Second) of Torts or Sections 1 and 2 of the Restatement (Third) of Torts applies in this action-the Court will address this controlling issue first and then address the individual motions ad seriatim.


The Court's inherent authority to manage the cases brought before it allow this Court to decide the present motions in limine. Luce v. United States, 469 U.S. 38, 40 n.4 (1984). The Court exercises its discretion to rule in limine on evidentiary issues "in appropriate cases." In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Accordingly, the Court may decide such motions to ensure the jury is not exposed to unfairly prejudicial, confusing, or irrelevant evidence, even if doing so may limit a party's defenses. See United States v. Romano, 849 F.2d 812, 815 (3d Cir. 1988). An in limine motion "is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990). It may also be appropriate for the Court to consider an in limine motion when it is more efficient to rule prior to trial and the pre-trial motion facilitates more thorough briefing than would likely be available during the course of trial. Japanese Elec., 723 F.2d at 260. Even so, if the context of trial would provide clarity, the Court may defer the issues until trial. Id.*fn2


This diversity action requires the Court to apply the substantive law of the state in which the claim arose. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). While the parties agree that Pennsylvania products liability law governs as the substantive law in this action, they dispute whether Pennsylvania follows the Second or Third Restatement of Torts on strict liability.

The Pennsylvania Supreme Court adopted § 402A of the Second Restatement in Webb v. Zern, 220 A.2d 853 (Pa. 1966). Since Webb, Pennsylvania courts and federal courts applying Pennsylvania law have followed the Second Restatement, although, as the state's Supreme Court has acknowledged, confusion has emerged as to the role negligence principles have in Pennsylvania strict liability cases. See, e.g., Phillips v. Cricket Lighters, 841 A.2d 1000, 1006-07 (Pa. 2003) (plurality opinion) ("While we have remained steadfast in our proclamations that negligence concepts should not be imported into strict liability law, we have muddied the waters at times with the careless use of negligence terms in the strict liability arena." (footnote omitted)). In coincidence with the existing confusion under the Second Restatement, the adoption of the Third Restatement has been proposed as a remedy. See, e.g., id. at 1018-19 (Saylor, J., concurring) ("[The] summation of Pennsylvania law demonstrates a compelling need for consideration of reasoned alternatives, such as are reflected in the position of the Third Restatement.").

The Pennsylvania Supreme Court recently appeared poised to address "whether this Court should apply § 2 of the Restatement (Third) of Torts in place of 402A of the Restatement (Second) of Torts" when it granted allocator on that very issue in Bugosh v. I.U. N. Am., Inc., 942 A.2d 897, 897 (Pa. 2008). In Bugosh, the Superior Court had refused to grant a new trial to manufacturers of asbestos products, who argued the trial court should have applied § 2 of the Third Restatement instead of § 402A of the Second Restatement. Bugosh v. Allen Refractories Co., 932 A.2d 901, 910-11 (Pa. Super. Ct. 2007). In its decision, the Superior Court noted that the trial court had "applied the law currently accepted as authoritative in Pennsylvania on the subject of strict liability," and stated that "until and unless our Supreme Court alters its approach to strict liability, we will continue to adhere to established principles." Id. Ultimately, despite having received extensive briefing from the parties and amici, and holding oral argument, the Supreme Court dismissed the appeal as "having been improvidently granted" in a per curiam decision. 971 A.2d 1228, 1229 (Pa. 2009).

A. Erie Doctrine

The Erie doctrine requires this Court to apply the state law as pronounced by the highest state court. Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir. 2007). "[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law unless it has later given clear and persuasive indication that its pronouncement will be modified, limited or restricted." West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940) (citing Wichita Royalty Co. v. City Nat'l Bank of Wichita Falls, 306 U.S. 103, 107 (1939)). Here, the Supreme Court pronounced in 1966 that § 402A of the Second Restatement is the applicable state law in strict liability actions. Specifically, in Webb the Second Restatement was adopted "as the law of Pennsylvania," 220 A.2d at 854, and the Supreme Court has continuously and consistently affirmed that the Second Restatement is the governing law in subsequent decisions. Lower courts in the Commonwealth as well as federal courts in diversity actions have for more than four decades accepted that lead.

Furthermore, the Supreme Court has not provided a "clear and persuasive indication" that Pennsylvania no longer follows the Second Restatement. In fact, upon close consideration, the Court concludes that Bugosh confirms quite the opposite. "By dismissing the appeal in Bugosh the Pennsylvania Supreme Court obviously decided not to throw out the Restatement (Second) and Azzarello." Durkot v. Tesco Equip., LLC, 654 F. Supp. 2d 295, 299 (E.D. Pa. 2009); see also Milesco v. Norfolk S. Corp., No. 1:09-CV-1233, 2010 WL 55331, at *3 (M.D. Pa. Jan. 5, 2010) ("Namely, it is instructive that when faced with the opportunity to supplant the Second RST with the Third RST the Pennsylvania Supreme Court declined the invitation to do so."). And in light of the Bugosh dismissal in the Supreme Court, the Superior Court's Bugosh decision affirming the Second Restatement stands unreversed. See 932 A.2d at 911 ("Until and unless our Supreme Court alters its approach to strict liability, we will continue to adhere to established principles [under § 402A of the Second Restatement]."). Moreover, Justice Saylor's Bugosh dissent confirms that Pennsylvania continues to follow the Second Restatement. 971 A.2d at 1229-49 (Saylor, J., dissenting); see also Durkot, 654 F. Supp. 2d at 299. Accordingly, pursuant to the Erie doctrine, this Court is guided by § 402A of the Second Restatement as the governing law in Pennsylvania for strict liability. Cf. Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 204 (1956) (applying older state cases when "there is no later authority from the [state] courts, . . . no fracture in the rules announced in those cases has appeared in subsequent rulings or dicta, and . . . no legislative movement is under way in [the state] to change the result of those cases.").

B. Berrier Decision

The Court acknowledges that the determination to follow ยง402A of the Second Restatement may appear to be at odds with certain Third Circuit Court of Appeals case law. The Court ...

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