Defenses The Thistle Law Firm Faced in a Products Liability Suit Governed by the Restatement Third of Torts

The Restatement Second of Torts §402A  has applied to products liability suits in Pennsylvania since the Pennsylvania Supreme Court adopted it in 1966 in Webb v. Zern, 422 Pa. 424, 220 A.2d 853.  However this may all change with the United States Court of Appeals for the Third Circuit recently predicting that the Pennsylvania Supreme Court would adopt the Restatement Third of Torts and applying it in products liability suits brought in Pennsylvania Federal Courts.  The Pennsylvania Supreme Court itself has also granted allowance of appeal on the issue of whether it should adopt the Third Restatement in Tincher v. Omega Flex, Inc., 64 A.3d 626, 619 Pa. 395 (2013).

There are drastic differences between the Second and Third Restatement.  The Restatement Second of Torts makes the manufacturer a guarantor of the safety of its product and simply looks at whether the product lacked an element necessary to make it safe regardless of whether the manufacturer has taken all possible care in the manufacture of the product.  The Third Restatement however takes into account the conduct and the reasonableness of the manufacturer in designing the product.  Some of the factors that can be considered in determining whether a product is defective are: production price and costs, product longevity and durability, ease and cost of maintenance and repair, aesthetics, and convenience and ease of use.  Therefore under the Third Restatement a manufacturer could argue that its product is not defective because it would have a more difficult time selling an alternative design that was less aesthetically pleasing or not as easy to use.

The Thistle Law Firm handled one of the seminal products liability cases in which the Court of Appeals for the Third Circuit held §§ 1 and 2 of the Restatement Third of Torts applied to products liability suits in Pennsylvania.  That case was Covell v. Bell Sports Inc., 2010 U.S. Dist. LEXIS 126626 (E.D.Pa. 2010); affirmed by Covell v. Bell Sports, Inc. 651 F.3d 357, (3rd Circuit, 2011).  In Covell the Thistle Law Firm claimed that a helmet being worn by its client while riding his bike was defectively designed by the defendant, Bell Sports, and had inadequate warnings.  The client was hit by a car while riding his bike and suffered severe brain injuries.  The Thistle Firm claimed that the client’s head struck the car’s windshield at the edge of the helmet where it was tapered and offered less protection.  When struck at the edge at an impact speed of 13.3 m.p.h., The Thistle Firm claimed the helmet allowed unacceptably high levels of force to be transferred to a biker’s head.  Therefore the Thistle Firm claimed the helmet was defective because it offered inadequate protection for side impacts, and if adequate protection was offered, The Thistle Firm’s client would not have suffered severe brain injuries from the accident.  As an alternative design the Thistle Firm argued that Bell Sports itself sold helmets with more protection at the side such as its bicycle/BMX skateboard helmet.

The Thistle Firm also claimed that the helmet had inadequate warnings as it did not warn that it was tested only up to speeds of 13.9 m.p.h., that the edges of the helmets were not tested to see what amount of force they can absorb, and that the edges of the bike helmet at issue are tapered and do not offer as much protection as other helmets sold by Bell Sports.

At the time of the accident there was a Consumer Product Safety Commission (“CPSC”) industry standard for bicycle helmets which required them to be tested down to a test line that encircled the helmet.  The standard stated the helmets must not allow more than 300 Gs of force to be transferred to a biker’s head when struck by a blow of 13.9 m.p.h. or less above this test line.  The helmet at issue in Covell met this standard, however The Thistle Law Firm claimed that its client’s helmeted head struck the car at the edge which was below the industry standard’s test line.

How did the manufacturer of the helmet defend itself under §§1 and 2 of the Restatement Third of Torts?  Defendant, the manufacturer, raised that the bicycle helmet at issue met all relevant industry standards and that The Thistle Firm’s biomechanical engineering expert had no criticism of these standards.  The manufacturer also pointed out the industry standards for bicycle helmets were more demanding than the standards for motorcycle helmets.  The manufacturer also argued that every bicycle helmet doesn’t perform as well when testing its durability at its edge.  The manufacturer also argued that its BMX/skateboard helmet was not an adequate alternative design because it wouldn’t sell as well to bikers based on the helmet’s size and design.  In fact at the time of the trial the Tour de France was also being held, and defendants pointed out that none of the bikers in the Tour de France wore a BMX/skateboard helmet.  They all were wearing the style of helmet that The Thistle Firm’s client was wearing.  Finally, the manufacturer presented evidence through its own experts that before the CPSC industry standards came out there were a lot of lousy bike helmets being sold, and the standards greatly improved the quality of the helmets.

Regarding The Thistle Firm’s claims on warnings, the helmet manufacturer pointed out that the Consumer Product Industry Standards don’t require the warnings the Thistle Firm was claiming should be on the helmet.  The manufacturer also argued that no helmet manufacturer in the world warns that its helmets are only tested to impact speeds of 13.9 m.p.h., that every helmet in the world has limitations, and that no helmet manufacturer warns that there is less protection at the edges of their helmet.  The manufacturer also claimed that over 90% of bicycle accidents involve impact speeds of 13.9 m.p.h. or less, and thus the 13.9 m.p.h. impact speed it tested its bicycle helmet at encompassed the vast majority of accident scenarios.  Finally, the manufacturer argued that the warnings on its bicycle helmet went beyond what the CPSC standards required.

Even if the Pennsylvania Supreme Court chooses to adopt the Third Restatement its not clear to what extent they would adopt it.  For example §4 of the Third Restatement is the section specifically dealing with industry standards, not §§ 1 and 2 which were at issue in the Covell case, although they are still arguably relevant under those sections.  However if the Third Restatement is adopted, it can be expected that similar defense like those raised above will be raised in design defect and failure to warn cases.  Specifically whether the product’s design and warnings meet, or go above, the relevant industry standards, looking at how manufacturers of the same or similar products design them and what they warn about, looking at whether consumers prefer the product as designed, and criticism of either the production costs or the difficulty to sell alternative designs raised by the plaintiff.

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