We posted before about a case, Sikkelee v. Precision Airmotive, Corp., ___ F. Supp.2d ___, 2012 WL 2552243 (M.D. Pa. July 3, 2012), in which the court persisted in applying the Restatement Second §402A rather than Restatement (Third) of Torts, Products Liability §2 (1998), despite not one, but two, published Third Circuit opinions predicting that the Pennsylvania Supreme Court would abandon the former and adopt the latter. Well, we've just learned (thanks to Scott Toomey of Littleton Joyce) that the Third Circuit has said STOP! in Sikkelee. In an order handed down yesterday (that we haven't found on the court's website) involving an attempted interlocutory appeal, the Third Circuit told the parties:
As stated in Covel, a federal court applying Pennsylvania substantive law must predict how the Commonwealth's highest court would decide the case. We concluded in Berrier that "[if] the Pennsylvania Supreme Court were confronted with [the] issue, it would adopt the Restatement (Third) of Torts." Thus, we held 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, as set forth above, represents the Court's view of Pennsylvania's product liabilty law.
The Pennsylvania Supreme Court has not issued a definitive opinion on whether the Restatement (Third) of Torts or the Restatement (Second) of Torts applies to to strict liabilty and product defect cases. Accordingly, we will follow the precedent set out in Covell and Berrier.
Sikkelee Order (denying rehearing) at 1-2 (emphasis added).
We hope this finally puts an end to the muddle that has developed in this area, with some federal judges electing to ignore Third Circuit precedent. The Third Circuit considers the question settled, unless and until the one court with the power to hold otherwise − the Pennsylvania Supreme Court − finally weighs in on this important issue.