We read Michelle Yeary’s recent post about In re Fosamax Products Liability Litigation, ___ F.3d ___, 2017 WL 1075047 (3d Cir. March 22, 2017), with particular interest. We were especially intrigued with the research demonstrating that the Fosamax court had departed from numerous prior Third Circuit precedents (including an en banc decision) on the question of preemption being a matter of law – as all the prior decisions had held – as opposed to a question of fact (the Fosamax result).

We note that the defendant in Fosamax shares the same view, and has itself sought en banc reconsideration.

Since Michelle cited over a dozen prior decisions, it’s highly likely that this issue will arise again. That raises the question (if the Fosamax opinion stands, which it shouldn’t) , what happens when precedential decisions of the Third Circuit are in conflict? There certainly appears to be a direct conflict between the cases Michelle cited and the Fosamax decision.

We took a look.

In the Third Circuit, when two precedential opinions are in conflict, the earlier one – that is to say, in this instance, not Fosamax – controls. This proposition was described in Pardini v. Allegheny Intermediate Unit, 524 F.3d 419 (3d Cir. 2008). After referencing the same Third Circuit Internal Operating Procedure that Michelle did, Pardini held:

“This Circuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as precedents.” United States v. Rivera, 365 F.3d 213, 213 (3d Cir. 2004); see also Holland v. New Jersey Dep’t of Corrections, 246 F.3d 267, 278 (3d Cir. 2001) (“[T]o the extent that [a case within the circuit] is read to be inconsistent with earlier case law, the earlier case law . . . controls”); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel of this court cannot overrule a prior panel precedent. To the extent that [the later case] is inconsistent with [the earlier case, the later case] must be deemed without effect.”).

Id. at 426 (parenthetical and internal citations omitted). As Pardini pointed out, this rule is the opposite of what happens when two statutes are irreconcilable. Id. But instead of the doctrine of implied repeal, the Third Circuit gives effect to its IOPs in a situation of precedential conflict – since the IOPs forbid what Fosamax sought to do, which was to ignore prior holdings of precedential Third Circuit opinions.

Pardini was followed in United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), where later “statements suggesting otherwise” in Third Circuit opinions about waiver were ineffective to defeat prior precedent:

This suggestion, however, is in conflict with our earlier decisions . . . which we derive our holding [today]. Because these cases were decided earlier, the rule derived from them is controlling.

Id. at 341. Accord Goldman v. Citigroup Global Markets Inc., 834 F.3d 242, 252 (3d Cir. 2016) (a decision that “is contrary to our own prior precedent” “does not bind us on the question”); United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009) (“when our panel decisions conflict and our Court has not spoken en banc, however, the earlier decision is generally the controlling authority”); Kossler v. Crisanti, 564 F.3d 181, 194 n.8 (3d Cir. 2009) (“Even assuming arguendo that [the two opinions] are in unavoidable conflict, this Circuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as precedents”).

Indeed, we remember precisely this happening in connection with a Pennsylvania product liability issue a number of years ago. In Griggs v. BIC Corp., 981 F.2d 1429, 1433 n.6 (3d Cir. 1992), the court held that Pennsylvania did not use a “risk/utility” approach to the former (this law was all overruled in Tincher v. Omega-Flex, Inc., 104 A.3d 328 (Pa. 2014)) “threshold determination” of defect. However, in Motter v. Everest & Jennings, Inc., 883 F.2d 1223 (3d Cir. 1989) – a case Griggs did not cite – a prior Third Circuit panel had held, “[u]nder Pennsylvania law, a trial judge must evaluate the risks of a product versus its social utility in determining whether the issue of the defective product is to be submitted to the jury.” Id. at 1227. When confronted with both Griggs and Motter, a later Third Circuit panel resolved the conflict thusly:

to the extent that the panel’s decision [in Griggs] can be read as rejecting outright the use of a risk-utility analysis as a part of the threshold determination, it is contrary to our decision in Motter, supra, which . . . sanctioned this approach, and, therefore, carries no precedential weight. See O. Hommel Co. v. Ferro, 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel of this court cannot overrule a prior panel precedent…. To the extent that [the later case] is inconsistent with [the earlier case, the later case] must be deemed without effect.”

Surace v. Caterpillar, Inc., 111 F.3d 1039, 1046 (3d Cir. 1997).

Thus, unless and until the determination in Fosamax that preemption is an issue of fact is confirmed by an en banc Third Circuit panel, or by an intervening decision of the United States Supreme Court, that determination should have no binding effect in future Third Circuit cases. Third Circuit law is quite clear that where, as in Fosamax, a panel has made a ruling in conflict with prior Third Circuit decisions, the earlier decisions control.

But, as we’ve said before, strange things happen in tort preemption cases. We would have thought that the proposition that preemption was a legal question was supported equally clear precedent, but look at what happened in Fosamax.