In 1998, the American Law Institute (ALI) issued the Third Restatement of Torts which contained several changes to product liability. These changes of the Third Restatement do not represent Pennsylvania jurisprudence. Some of these changes are a drastic departure from existing law and do not reflect a consensus of other jurisdictions and is certainly a step in the wrong direction.

The Pennsylvania Supreme Court is currently considering the application of the Restatement (Third) of Torts §2 (1998) in Bogush v. IU North America. The Bogush case involves Edward Bogush who died due to mesothelioma which, of course, was caused by asbestos. At trial, Defendants offered no testimony or argument to the jury that the asbestos products were safe or not defective (frankly, how could they proffer that type of testimony.) To the contrary, Defendants only offered defense expert testimony that the Plaintiff/Decedent’s mesothelioma was idiopathic and not caused by asbestos. Plaintiff offered experts to establish that the asbestos products were defective and caused Decedent’s fatal condition. The jury awarded Plaintiffs $1.4M.

On appeal to the Pennsylvania Supreme Court in Bogush, Defendants are arguing for the wholesale rejection of product liability law and the standards of Section 402 (a) which have been uniformly adopted throughout almost every jurisdiction. Instead, Appellants are pushing for the Restatement (Third) of Torts regarding product liability. The Restatement (Third) addresses, among other things, the failure to provide an adequate warning for products. Under the revised Restatement, a product is defective when, at the time of sale or distribution, it has inadequate instructions or warnings when a foreseeable risk of harm that is posed by the product could have been reduced or avoided by reasonable instructions or warnings by the seller or other persons in the chain of distribution. Restatement (Third) of Torts – Product Liability §2 ( c).

The plain meaning of the Restatement (Third) clearly mandates that if there was a foreseeable risk to anyone, all persons in the chain of distribution would bear responsibility. However, in Bogush, Defendants are trying to argue that foreseeable risk means foreseeable to them, only. This is not what the Restatement provides and the Pennsylvania Supreme Court must reject that broad interpretation.

This proposed interpretation and application of §2 of the Restatement (Third) will result in a fundamental shift in Pennsylvania law which is not justified by any change in policy rationale. Pennsylvania product liability law is deeply rooted in the concept that the manufacturer who places a product in the commercial stream is in a better position than the consumer to take steps to reduce the risk of injury from its product or the accept the costs of injuries that result from its product. The axis of product of liability law has always been a cost shifting analysis. Pennsylvania law has long required a manufacturer/seller/distributor to be liable although it may not have been at fault. Of course, Plaintiff was not at fault either since contributory negligence is inapplicable in a product liability action. The roots of strict liability require that if that there is a split between two faultless entities, the party who caused the injury, who designed the product, who manufactured the product, who sold it and who profited from it, should pay for the injuries caused by the defective product.

The Appellants argument in Bogush for an expanded application of §2 of the Restatement (Third) will change strict liability for design defects in warning cases for a broad “foreseeability test.” As commentators and Courts have pointed out, a foreseeability test effectively eradicates the distinction between strict liability and negligence. A return to a negligence based system is clearly contrary to the law as it has developed in Pennsylvania since the adoption of §402(a). As the Pennsylvania Supreme Court has long recognized, negligence concepts have no place in strict liability. Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978) and this separation of negligence concepts from strict liability actions was reaffirmed recently Pennsylvania Supreme Court. Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003). Such a division between negligence and strict liability is not a senseless exercise in semantics; rather, it is dictated by the very underpinnings of a strict liability action. The adoption of these broad foreseeability concepts for all parties across the chain of distribution, would inject impermissible negligence concepts that have been routinely rejected by the Pennsylvania Courts. The abandonment of current strict liability law would present a reversion to a society that no longer protects the innocent consumer but rather the responsible manufacturer/ supplier of the defective product. Certainly, the latter is more able to bear the burden in our society. As such, the Pennsylvania Supreme Court must reject the proposed changes of the Third Restatement because a foreseeability test will not protect innocent parties injured by defective products.