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Pennsylvania News Flash Bugosh Appeal Dismissed

By James M. Beck and Mark Herrmann

Over a blistering two-justice dissent (Saylor and Castille), the Pennsylvania Supreme Court just dismissed the appeal in Bugosh v. I.U. North America, Inc., No. 7 WAP 2008, as improvidently granted.

Bugosh was the case that the Court had taken expressly to address whether to change Pennsylvania product liability law from its current idiosyncratic form of limited, but extreme, strict liability, to the more mainstream Restatement Third reasonableness-based approach.

While the dismissal order gives no reason, Bexis (who filed an amicus brief for PLAC in Bugosh) believes that the status of the defendant as an intermediate seller, rather than as an actual manufacturer (it was an asbestos case) was the basis for the dismissal. The Third Restatement treats intermediate sellers more "strictly" than manufacturers.

This result leaves Pennsylvania law more confused than ever, as recently the Third Circuit predicted that Pennsylvania would adopt the Third Restatement. See Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009). We blogged about Berrier here. Thus, in state court, the old Azzarello-based (that's Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), for you non-Pennsylvanians) form of strict liability prevails, while the federal courts are bound by Berrier to apply the Third Restatement in diversity cases based upon Pennsylvania law.

We can only hope that the Pennsylvania Supreme Court resolves this rather bizarre situation quickly - but it's now been almost six years since Azzarello was explicitly called into question in Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003).

Full post as published by Drug and Device Law on June 17, 2009 (boomark / email).