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Charles Thompson v. Med-Mizer

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 30, 2012

CHARLES THOMPSON, PLAINTIFF,
v.
MED-MIZER, INC. DEFENDANT.

The opinion of the court was delivered by: Henry S. Perkin, M.J.

MEMORANDUM

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 Advanced Technology and Dewert.

I adopt the reasoning set forth by the Honorable James Knoll Gardner in his Order denying Defendant's Motion for Judgment on the Pleadings regarding Plaintiff's alleged failure to join indispensable parties. *fn15 In his Order, Judge Gardner set forth his reasoning as to why Advanced Technology and Dewert were not necessary parties under Rule 19 of the Federal Rules of Civil Procedure in this matter, namely that (1) joint tortfeasors are not generally considered necessary parties and (2) absence of Advanced Technology and Dewert did not preclude the court from effecting relief. *fn16 For these reasons I deny Defendant's Motion for Summary Judgment with respect to Plaintiff's alleged failure to join indispensable parties.

An Order follows.


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