Sunday, June 21, 2009

Pennsylvania Supreme Court Declines Opportunity to Add Negligence Principles to Strict Liability Doctrine

Last week, in the case of Bugosh v. I.U. North America, 2009 WL 1663998, PICS Case No. 09-1010 (Pa. June 17, 2009), the Pennsylvania Supreme Court declined an opportunity to address an important issue of whether negligence concepts should be introduced into the strict liability doctrine currently employed under Pennsylvania law.

The appeal arose out of a 2005 jury verdict that held I.U. North America, a successor of a supplier that sold non-asbestos products, liable for Edward Bugosh's exposure to asbestos. Bugosh, who died while his case was in trial, worked with asbestos provided by Pittsburgh Gage, I.U. North America's predecessor, until 1966. His wife, Judith R. Bugosh, pursued the case in her own right and as administrator of her late husband's estate.

During arguments before the Supreme Court before the case was dismissed as improvidently granted, the Defendant Corporation argued that the company should be allowed to present expert testimony that mesothelioma -- the disease caused by exposure to asbestos -- was a medical unknown until 1965. The defense was raising the concept of foreseeability in this strict liability case by arguing that, since the danger was unknown and not foreseeable, blame could not be attached to the defendant for an alleged failure to warn.

Such an argument would apparently be allowed under the proposed adoption of the Third Restatement of Torts but is currently not allowed under the present status of Pennsylvania strict liability law, which does not allow for consideration of negligence principles of law; rather, if a plaintiff proves the case, a defendant is "strictly liable."

In a one-line Order and without explanation, the Pennsylvania Supreme Court dismissed the appeal as "improvidently granted." However, two justices -- Thomas G. Saylor and Chief Justice Ronald D. Castille -- dissented from the majority and wrote that "adjustments [to the state's current law] are long overdue."

One wonders why the Court, after having the issues briefed and after having heard oral argument from the attorneys, simply did not see the matter through and settle the issues presented with a decision and a reasoned opinion. Apparently, the majority of the court did not feel that the case before them properly and fully presented the issue for their full consideration.

In his lengthy dissent, noting his disagreement with that proposition, Justice Saylor reviewed the currently recognized strict product liability law under Section 402A of the Second Restatement of Torts, and why he explained why he felt the Pennsylvania courts would be better served to replace it with Section 2 of the Third Restatement of Torts, which allows for consideration of negligence concepts in strict liability cases.

According to Justice Saylor, "the court should no longer say negligence concepts have no place in 'strict-liability' doctrine in Pennsylvania, when this simply is not accurate in our tort scheme, or in any scheme purporting to recognize that manufacturers and distributors are not outright insurers for all harm involving their products."

Justice Saylor also stated that the "reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essentially thirty years behind. The Restatement would serve as a far more rational platform from which to make modest future adjustments, if necessary."

This dissenting opinion will surely assist defendants in attempting to push through this change in the law in the future. Until then products liability litigators will have to await another day for either the Court or the Legislature to update Pennsylvania law in this regard.

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