The opinion of the court was delivered by: Henry S. Perkin, M.J.
Before the Court is Defendant Med-Mizer's Motion for Summary Judgment (Dkt. No. 73) filed on October 15, 2012. For the reasons set forth below, this Motion is granted in part and denied in all other respects. Defendant asserts six independent grounds for granting summary judgment, which are discussed below.
(1) Defendant requests summary judgment on Plaintiff's claims under the Restatement (Second) of Torts §402A based on the theory that the Federal Courts have adopted the Restatement (Third) of Torts §2.
Defendant argues that Plaintiff's claims under the Restatement
(Second) of Torts should be dismissed with prejudice because the
United States Court of Appeals for the Third Circuit has predicted
that the Pennsylvania Supreme Court will adopt the Restatement (Third)
of Torts in cases of product liability actions, *fn1
thus requiring federal courts sitting in diversity to
apply the Restatement (Third) of Torts. In light of recent case
development, I am now inclined to agree with Defendant that this Court
must apply the Restatement (Third) of Torts as mandated by the Third
Circuit. See Sikkelee v. Precision Airmotive
Corp., No. 12-CV-8081 at 2-3 (3d Cir. October 17, 2012) (in denying a
request to accept interlocutory appeal on the issue of whether
the Pennsylvania Supreme Court would adopt the Restatement (Third)
of Torts or continue its application of the Restatement (Second) of
Torts, the Third Circuit determined that "[r]ather than examine the
arguments and considerations we laid to rest [in
Berrier ], we will apply stare decises
"). The Third Circuit concluded that "federal courts sitting in
diversity and applying Pennsylvania law to products liability cases
should look to sections 1 and 2 of the Restatement (Third) of Torts.
The precedential holding in Berrier. represents the
Court's view of Pennsylvania product liability law." Id. Adhering to
the Third Circuit's reiteration that Berrier and
Covell represent this Circuit's view on the
matter, and heeding instructions to apply stare decisis
, I will apply the Restatement (Third) of Torts in this case.
Accordingly, I grant Defendant's Motion for Summary Judgment with
respect to Plaintiff's claims arising under the Restatement (Second)
of Torts §402A. *fn2
(2) Defendant requests summary judgment on Plaintiff's negligence (Count I) claim under the theory that Plaintiff cannot show duty or breach, and that Plaintiff is barred by assumption of the risk and misuse doctrines.
In Defendant's second ground for summary judgment, Defendant
alleges that Count I should be dismissed for, inter
alia , lack of duty, lack of a breach of care, assumption of
the risk and misuse. *fn3 While Defendant
correctly notes that finding duty is a matter of law, *fn4
this issue depends upon factual issues which are
currently in dispute. *fn5 Similarly,
Defendant's allegations of misuse and contributory negligence require the resolution of
disputed facts. *fn6 As there are numerous
genuine issues of fact in dispute to assess Plaintiff's claims of
negligence in Count I, Defendant's Motion for Summary Judgment is
denied on these grounds.
(3) Defendant requests summary judgment under the theory of spoliation of evidence.
Defendant alleges that spoliation of the evidence in connection with Plaintiff's expert's examination of the bed precludes Plaintiff from recovering. *fn7 Specifically, Defendant alleges that potential expert Roger Boyell manipulated the pins of the RJ45 connector and removed the connector from its original place on the bed, rendering the evidence different from its original condition at the time of the incident. *fn8 Additionally, Defendant claims it was "unable to examine, inspect and deduce what the condition of the Med-Mizer bed and RJ45 connector were on June 15, 2008" *fn9 thus precluding Defendant from preparing a full defense.
As highlighted in Plaintiff's Response, Defendant's Vice President was present at this examination, the examination was conducted 17 months prior to Defendant's Answer being filed, numerous parties were present, and photographs were taken to ensure accuracy. *fn10 Any decision regarding manipulation of the device involves examination of contested factual issues; *fn11 as such, it is not an appropriate decision at the summary judgment stage. Moreover, I do not find that this rises to the level of destruction or withholding of evidence, and sanctions in the form of summary judgment are not appropriate. (4) Defendant requests summary judgment on Plaintiff's Restatement (Third) of Torts §2 claims under the theory that Plaintiff cannot establish liability under the manufacturing defect, design defect or lack of adequate warning theories.
Defendant requests summary judgment on all three grounds alleged under the Restatement (Third) of Torts, including (1) manufacturing defect, (2) design defect, and (3) improper warning. Defendant incorporates its argument on spoliation of evidence as grounds for dismissing Plaintiff's manufacturing defect, which is denied for the reasons set forth above. *fn12
With respect to Plaintiff's design defect claim, resolution of this issue involves contested issues of material fact. *fn13 Similarly, Plaintiff's lack of adequate warning claim requires resolution of contested issues of material fact. *fn14 As such, Defendant's Motion for Summary Judgment on these claims is denied.
(5) Defendant requests summary judgment on Plaintiff's Restatement (Second) of Torts §402A claims under the theory that there is no evidence to show Defendant's product was defective.
As discussed in Section (1) of this Memorandum, I am granting Defendant's Motion for Summary Judgment with respect to Plaintiff's claims arising under the Restatement (Second) of Torts §402A as Plaintiff must now proceed under the Restatement (Third) of Torts §2.
(6) Defendant requests summary judgment under the theory that Plaintiff failed to join indispensable parties ...