1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3860

_____________

DAVID W. COVELL; MARGARET COVELL, Plenary 

Guardians of the Person of David F. Covell, 

 Appellants

v.

BELL SPORTS, INC.; EASTON-BELL SPORTS, INC.; 

PERFORMANCE, INC.

v.

MICHAEL KENIG; ARCHDIOCESE OF PHILADELPHIA.

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cv-02470)

District Judge: Honorable Paul S. Diamond

__________

Argued on June 21, 2011
2

Before: HARDIMAN and ALDISERT, Circuit Judges, and 

RESTANI,*Judge.

(Filed: July 12, 2011)

Daniel L. Thistle, Esq. ARGUED

THE THISTLE LAW FIRM

1845 Walnut Street, Suite 2350

Philadelphia, PA 19103

Attorneys for Appellant

Barbara R. Axelrod, Esq.

THE BEASLEY FIRM, LLC

1125 Walnut Street

Philadelphia, PA 19107

Clifford A. Rieders, Esq.

Pamela L. Shipman, Esq.

RIEDERS, TRAVIS, HUMPHREY, HARRIS, WATERS & 

WAFFENSCHMIDT

161 West Third Street

Williamsport, PA. 17701

Amicus Curiae for Appellant

C. Scott Toomey, Esq. ARGUED

Katherine A. Wang, Esq.

 

* Honorable Jane A. Restani, Judge of the United States Court 

of International Trade, sitting by designation.
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LITTLETON JOYCE UGHETTA PARK & KELLY LLP

150 N. Radnor Chester Road, Suite F-200

Radnor, PA 19087

Attorneys for Appellee

Edward M. Koch, Esq.

Edward F. Beitz, Esq.

WHITE AND WILLIAMS LLP

1650 Market Street

One Liberty Place, Suite 1800

Philadelphia, PA 19103-7395

Amicus Curiae for Appellee

__________

OPINION OF THE COURT

__________

ALDISERT, Circuit Judge.

David W. Covell and Margaret Covell, who are 

plenary guardians of their adult son David F. Covell, appeal 

from a jury‟s verdict for the defendant in their products 

liability suit against Easton-Bell Sports, Inc. They urge us to 

order a new trial on the ground that the District Court erred 

by admitting evidence and charging the jury pursuant to 

sections 1 and 2 of the Restatement (Third) of Torts (1998), 
4

rather than section 402A of the Restatement (Second) of Torts

(1965). Having held in Berrier v. Simplicity Manufacturing, 

Inc., 563 F.3d 38 (3d Cir. 2009), cert. denied, 130 S. Ct. 553 

(2009), that federal district courts applying Pennsylvania law 

to products liability cases should look to sections 1 and 2 of 

the Restatement (Third) of Torts, and seeing no reason to 

reverse course now, we will affirm.

I.

David F. Covell, a 36 year-old schoolteacher, 

sustained serious brain injuries when he was struck by a car 

while bicycling to work in 2007. Tragically, he is now so 

disabled that his parents (the “Covells”) have been appointed 

his legal guardians. In that capacity, they filed this products 

liability suit against Easton-Bell Sports, Inc. (“Bell”), which 

manufactured the “Giro Monza” bicycle helmet their son 

wore during the collision. Their suit, filed in the Pennsylvania 

Court of Common Pleas, alleged that the Giro Monza helmet 

was defectively designed and that it lacked adequate warnings 

about danger from impact to the helmet‟s edge. Bell removed 

the case to the United States District Court for the Eastern 

District of Pennsylvania, where the trial proceeded according 

to Pennsylvania substantive law.

At trial, and over the Covells‟ strident objections, the 

District Court permitted Bell to introduce expert testimony

that was based in part upon the United States Consumer 

Product Safety Commission‟s Safety Standard for Bicycle 

Helmets (the “CPSC Standard”). The CPSC Standard is an 

administrative regulation that provides an exacting set of 

guidelines for impact resistance, head covering, labels on 

helmets and helmet boxes, helmet resistance to temperature
5

and moisture, manufacturer recordkeeping, and much more. 

See 16 C.F.R. § 1203. Forced to respond to Bell‟s expert, the 

Covells offered their own expert testimony regarding the 

CPSC Standard. Ultimately, experts for both sides agreed that 

the CPSC Standard forms the starting point for any bicycle 

helmet design, and that the Giro Monza helmet satisfied the 

CPSC Standard in all respects.

At the trial‟s conclusion, the District Court instructed 

the jury pursuant to sections 1 and 2 of the Restatement 

(Third) of Torts. The Court also instructed the jury that, in 

determining whether the Giro Monza helmet was or was not 

defective, it could consider evidence of standards or customs 

in the bicycle helmet industry, including the CPSC Standard. 

The jury returned a verdict for the defense, finding that the 

helmet was not defective. The Covells timely filed this 

appeal.

II.

The District Court had diversity jurisdiction pursuant 

to 28 U.S.C. § 1332(a)(1). We have jurisdiction pursuant to 

28 U.S.C. § 1291.

We review issues of law de novo. Bear Mt. Orchards, 

Inc. v. Mich-Kim, Inc., 623 F.3d 163, 169 (3d Cir. 2010). 

This includes a District Court‟s decision to admit or exclude 

evidence pursuant to Pennsylvania law. Dillinger v. 

Caterpillar, Inc., 959 F.2d 430, 434-435 (3d Cir. 1992).

III.

The Covells call to our attention two assignments of 
6

error. First, they contend that the District Court should not 

have applied the Restatement (Third) of Torts when 

instructing the jury and when admitting evidence of the CPSC 

Standard. Second, they contend that even if it was proper to 

apply the Restatement (Third) of Torts, the CPSC Standard 

was nonetheless inadmissible. We disagree and will affirm 

the District Court on both counts.

A.

We begin with the District Court‟s decisions to admit 

evidence and to instruct the jury pursuant to the Restatement 

(Third) and not the Restatement (Second) of Torts. We note at 

the outset that the question the Covells present—what is the 

law of Pennsylvania: section 402A of the Restatement 

(Second) of Torts, or sections 1 and 2 of the Restatement 

(Third) of Torts?—is one we laid to rest only 24 months ago 

in Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38, 40 

(3d Cir. 2009) (holding that if confronted with the question, 

the Supreme Court of Pennsylvania would apply sections 1 

and 2 of the Restatement (Third) of Torts to products liability 

cases), cert. denied, 130 S. Ct. 553 (2009). After examining 

the contentions of the parties and the recent decisions of 

Pennsylvania‟s highest court, we conclude that the state of the 

law is no different now than it was when we decided Berrier. 

Rather than exhume the arguments and considerations we laid 

to rest there, we will apply stare decisis.

1.

In past products liability cases, the Supreme Court of 

Pennsylvania has looked to section 402A of the Restatement 

(Second) of Torts. E.g., Webb v. Zern, 220 A.2d 853, 854 
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(Pa. 1966) (“We hereby adopt the foregoing language [of 

§ 402A] as the law of Pennsylvania.”). Section 402A makes 

sellers liable for harm caused to consumers by unreasonably 

dangerous products, even if the seller exercised reasonable 

care:

(1) One who sells any product in a defective 

condition unreasonably dangerous to the 

user or consumer or to his property is 

subject to liability for physical harm thereby 

caused to the ultimate user or consumer, or 

to his property, if

(a) the seller is engaged in the business of 

selling such a product, and

(b) it is expected to and does reach the user 

or consumer without substantial change 

in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies 

although

(a) the seller has exercised all possible care

in the preparation and sale of his product, 

and

(b) the user or consumer has not bought the 

product from or entered into any 

contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965). Section 402A 

thus creates a strict liability regime by insulating products 
8

liability cases from negligence concepts. See id.

§ 402A(2)(a); Azzarello v. Black Bros. Co., 391 A.2d 1020, 

1025-1026 (Pa. 1978) (charging courts to avoid negligence 

concepts when instructing a jury pursuant to § 402A.).

During the past 40 years, however, the Supreme Court 

of Pennsylvania has repeatedly addressed confusion arising 

from a core conflict in the structure of section 402A itself: 

Section 402A instructs courts to ignore evidence that the 

seller “exercised all possible care in the preparation and sale 

of his product,” § 402A(2)(a), yet imposes liability only for 

products that are “unreasonably dangerous,” § 402A(1). In 

many cases it is difficult or impossible to determine whether a 

product is “unreasonably dangerous” to consumers without 

reference to evidence that the seller did or did not exercise 

“care in the preparation” of the product. See Schmidt v. 

Boardman Co., 11 A.3d 924, 940 (Pa. 2011) (“This nonegligence-in-strict-liability rubric has resulted in material 

ambiguities and inconsistency in Pennsylvania‟s 

procedure.”); see also Phillips v. Cricket Lighters, 841 A.2d 

1000, 1015-1016 (Pa. 2003) (Saylor, J., dissenting).

Nonetheless, the Supreme Court of Pennsylvania has 

endeavored to segregate strict liability‟s “product-oriented”

analysis from the “conduct-oriented” analysis of negligence. 

Phillips, 841 A.2d at 1006 (“[W]e have remained steadfast in 

our proclamations that negligence concepts should not be 

imported into strict liability law . . .”). In so doing, 

Pennsylvania‟s high court has stated repeatedly that 

negligence concepts have no place in products liability. E.g., 

id.; Azzarello, 391 A.2d at 1025-1026. That endeavor has not 

always been successful, see Davis v. Berwind Corp., 690 

A.2d 186, 190 (Pa. 1997) (holding that if a “product has 
9

reached the user or consumer with substantial change,”

liability depends upon “whether the manufacturer could have 

reasonably expected or foreseen such an alteration of its 

product.”) (emphasis added), nor has it been uniformly 

embraced by the Justices of that Court, see Schmidt, 11 A.3d 

at 940 (disapproving of Pennsylvania‟s “almost unfathomable 

approach to products litigation”) (quotation omitted).

The American Law Institute responded to the core 

conflict in section 402A when it published the Restatement 

(Third) of Torts. Sections 1 and 2 of the Restatement (Third) 

of Torts abandon entirely the negligence-versus-strict-liability 

distinction that has caused so much trouble in Pennsylvania:

§ 1: Liability of Commercial Seller or 

Distributor for Harm Caused by 

Defective Products

One engaged in the business of selling or 

otherwise distributing products who sells 

or distributes a defective product is subject 

to liability for harm to persons or property 

caused by the defect.

§ 2: Categories of Product Defect

A product is defective when, at the time of 

sale or distribution, it contains a 

manufacturing defect, is defective in 

design, or is defective because of 

inadequate instructions or warnings. A 

product:

(a) contains a manufacturing defect when 
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the product departs from its intended 

design even though all possible care 

was exercised in the preparation and 

marketing of the product;

(b) is defective in design when the 

foreseeable risks of harm posed by the 

product could have been reduced or 

avoided by the adoption of a 

reasonable alternative design by the 

seller or other distributor, or a 

predecessor in the commercial chain of 

distribution, and the omission of the 

alternative design renders the product 

not reasonably safe;

(c) is defective because of inadequate 

instructions or warnings when the 

foreseeable risks of harm posed by the 

product could have been reduced or 

avoided by the provision of reasonable 

instructions or warnings by the seller or 

other distributor, or a predecessor in 

the commercial chain of distribution, 

and the omission of the instructions or 

warnings renders the product not 

reasonably safe.

Restatement (Third) of Torts §§ 1-2 (1998).

Section 1 thus makes sellers liable only for the sale of 

products that are “defective,” and section 2 provides that a 

product may qualify as “defective” if it meets one of three 
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sets of criteria. The criteria—which incorporate negligence 

concepts such as “foreseeable risk” and “care” directly into

the definition of “defective”—amount to an express rejection 

of the “no negligence in products liability” regime that the 

Supreme Court of Pennsylvania has endorsed in cases like 

Azzarello, 391 A.2d at 1025-1026. Several Justices of the 

Supreme Court of Pennsylvania have expressed the view that 

section 402A‟s approach is antiquated and should be 

replaced. See, e.g., Phillips, 841 A.2d at 1015-1016 (Saylor, 

J., Castille, J., & Eakin, J., concurring) (“I believe that the 

time has come for this Court, in the manner of so many other 

jurisdictions, to expressly recognize the essential role of riskutility balancing, a concept derived from negligence doctrine, 

in design defect litigation.”). Whether or when that Court will 

move from the Restatement (Second) to the Restatement 

(Third) of Torts are questions that have engendered much 

debate.

They are also questions that have challenged this 

Court. In Berrier, we noted that the Supreme Court of 

Pennsylvania had not yet answered whether bystanders could 

recover on design defect claims. This question, in turn, 

required us to determine whether products liability cases are 

governed by the Restatement (Second) or the Restatement 

(Third) of Torts, and we stated that “[i]n the absence of a 

controlling decision by the Pennsylvania Supreme Court, a 

federal court applying that state‟s substantive law must 

predict how Pennsylvania‟s highest court would decide this 

case.” 563 F.3d at 45-46. After reviewing “relevant state 

precedents, analogous decisions, considered dicta, scholarly 

works, and . . . other reliable data,” id. at 46, we concluded 

that “if the Pennsylvania Supreme Court were confronted 

with this issue, it would adopt the Restatement (Third) of 
12

Torts, §§ 1 and 2,” id. at 40. Thus, we held that federal courts 

sitting in diversity and applying Pennsylvania law to products 

liability cases should look to sections 1 and 2 of the 

Restatement (Third) of Torts. Id. The precedential holding in 

Berrier, as set forth above, represents this Court‟s view of 

Pennsylvania‟s products liability law.

2.

The District Court followed Berrier. In so doing it 

admitted evidence of the CPSC Standard as relevant to the 

amount of care Bell exercised, and it instructed the jury 

according to the framework set forth in sections 1 and 2 of the 

Restatement (Third) of Torts. The Covells contend that these 

decisions by the District Court were erroneous, because they 

would be improper under section 402A of the Restatement 

(Second) of Torts. They maintain that section 402A “has been 

the law in Pennsylvania since it was adopted in Webb v. Zern, 

[220 A.2d 853 (Pa. 1966)]” and that “[n]o decision of the 

Pennsylvania Supreme Court has changed this.” If the District 

Court had applied the Restatement (Second) of Torts, it 

would not have permitted Bell to admit evidence of the CPSC 

Standard (because due care is irrelevant under the 

Restatement (Second) of Torts), and it would not have 

instructed the jury to consider whether the Giro Monza 

helmet was “unreasonably” dangerous (because the only 

relevant inquiry under the Restatement (Second) of Torts is 

whether the product itself was defective). The Covells 

maintain that each of these decisions by the District Court 

violated the doctrine of Erie Railroad Co. v. Tompkins, 304 

U.S. 64 (1938), as set forth in Van Dusen v. Barrack, 376 

U.S. 612 (1964), which requires federal courts sitting in 

diversity to apply state substantive law. 376 U.S. at 638 
13

(Stating that, “[t]he nub of the policy that underlies [Erie] is 

that . . . a suit by a non-resident litigant in a federal court 

instead of in a State court a block away, should not lead to a 

substantially different result.”). In short, the Covells‟ position 

is that section 402A is the law of Pennsylvania, and that when 

the District Court applied the Restatement (Third) of Torts it 

permitted Bell to illicitly “utilize a transfer to achieve a result 

in federal court which could not have been achieved in the 

courts of the State where the action was filed.” Id.

In response, Bell directs us to our decision in Berrier, 

563 F.3d at 40, wherein we held that if confronted with the 

issue, the Supreme Court of Pennsylvania would apply 

sections 1 and 2 of the Restatement (Third) and not section 

402A of the Restatement (Second) of Torts. Such predictions 

by a federal court sitting in diversity are permissible absent a 

controlling decision by a state‟s highest court. Nationwide 

Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). 

Bell‟s position is that the District Court in this case did not 

err, because it followed Berrier‟s precedential prediction of

Pennsylvania law.

We will affirm the District Court‟s application of 

sections 1 and 2 of the Restatement (Third) of Torts. Much of 

the briefing from the parties, and all of the briefing from the 

amici, is devoted to which Restatement of Torts is best as a 

matter of policy, and which most logically extends the

decisions of the Supreme Court of Pennsylvania—all of 

which are issues we waded through and resolved only two 

years ago when we decided Berrier. This means that, 

notwithstanding the volume of briefing in this case, the 

dispositive question we must answer is straightforward: do 

we follow Berrier?
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3.

We will follow Berrier, and affirm the District Court. 

First, our Internal Operating Procedures instruct us to follow 

prior panels‟ decisions:

Policy of Avoiding Intra-circuit Conflict of 

Precedent.

It is the tradition of this court that the holding of 

a panel in a precedential opinion is binding on 

subsequent panels. Thus, no subsequent panel 

overrules the holding in a precedential opinion 

of a previous panel. Court en banc consideration 

is required to do so.

3d Cir. I.O.P. 9.1 (2010).

“Although a panel of this court is bound by, and lacks 

authority to overrule, a published decision of a prior panel, a 

panel may reevaluate a precedent in light of intervening 

authority,” including intervening decisions of state law but its 

highest court. Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d. 

Cir. 1996) (internal citation omitted). In this vein, the Covells 

direct our attention to Bugosh v. I.U. North America, Inc., 

942 A.2d 897 (Pa. 2008), appeal dismissed as improvidently 

granted by 971 A.2d 1228 (Pa. 2009). The Bugosh petitioner 

had sought a holding from the Supreme Court of 

Pennsylvania declaring that the Restatement (Third) and not 

the Restatement (Second) of Torts reflects the law of 

Pennsylvania. The Court granted allocatur on the issue in 

2008, but in 2009 dismissed the appeal as improvidently 
15

granted. Bugosh, 971 A.2d 1228. The Covells urge us to hold 

that the dismissal of Bugosh indicates the Supreme Court of 

Pennsylvania‟s contentment with the Restatement (Second) of 

Torts.

We will not do so. Reading the tea leaves of a 

certiorari or allocatur dismissal is risky business; one could 

just as reasonably conclude that the dismissal here indicates 

the Court‟s approval of Berrier as much as it indicates its 

approval of section 402A. That is why the Supreme Court of 

Pennsylvania has warned against reading between the lines of 

an allocatur dismissal:

In the circumstance where we have accepted an 

issue by granting allowance of appeal, and this 

Court, after conducting our review of the issue, 

enters an order dismissing the appeal as having 

been improvidently granted, the effect is as 

though this Court never granted allowance of 

appeal. In other words, a dismissal as being 

improvidently granted has the exact same effect 

as if this Court had denied the petition for 

allowance of appeal (allocatur) in the first place.

Where we dismiss an appeal as improvidently 

granted, the lower tribunal‟s opinion and order 

stand as a decision of that court and this Court‟s 

order has no precedential value. 

Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) 

(emphasis in original); see also Salazar v. Allstate Ins. Co., 

702 A.2d 1038, 1043 n.10 (Pa. 1997) (“[T]he fact that this 

court denied allowance of appeal . . . is no indication of our 

endorsement of the reasoning used by the Superior Court.”).
16

We therefore conclude that, in light of the Supreme Court of 

Pennsylvania‟s directives in Tilghman and Salazar, the 

Bugosh appeal was an intervening event, but not an 

intervening “authority” sufficient to revisit our holding in 

Berrier.

Given that Bugosh is of no consequence, we conclude

that the state of the law in Pennsylvania is exactly as it was 

when we decided Berrier. Absent a change in Pennsylvania‟s 

law, we see no reason to upset our precedent. Applying 

Berrier, we hold that the District Court did not err in using the 

Restatement (Third) of Torts to guide its decisions to admit 

evidence, and to frame its jury instructions.

B.

The Covells‟ fallback contention is that even if 

sections 1 and 2 of the Restatement (Third) of Torts were the 

law of Pennsylvania (i.e., even if the jury instructions in this 

case were correct), the District Court nonetheless erred by 

admitting evidence of the CPSC Standard. The Covells point 

out that the CPSC Standard is an “industry regulation” as 

described in section 4 of the Restatement (Third) of Torts,

which—unlike sections 1 and 2—has not been cited or 

discussed by the Supreme Court of Pennsylvania. Cf. Berrier,

563 F.3d at 40 (holding only that the Supreme Court of 

Pennsylvania would apply sections 1 and 2 of the 

Restatement (Third) of Torts to products liability cases), The 

Covells maintain that if we affirm the District Court on this 

point we will apply section 4 before the Supreme Court of 

Pennsylvania does so—something to be avoided in a diversity 

case. Cf. Van Dusen, 376 U.S. at 638. We conclude that we 

need break no new ground today; we will affirm the District 
17

Court without resort to section 4 of the Restatement (Third) 

of Torts because the CPSC Standard was admissible pursuant 

to section 2.

The Covells are correct that most jurisdictions 

applying the Restatement (Third) of Torts to products liability 

cases hold that evidence of compliance with product 

regulations is admissible to prove whether or not a product is 

defective. E.g., Doyle v. Volkswagenwerk Aktiengesellschaft,

481 S.E.2d 518, 521 (Ga. 1997). Courts in jurisdictions that 

have incorporated the entirety of the Restatement (Third) of 

Torts are free to admit such evidence under section 4, which 

provides:

Noncompliance and Compliance with 

Product Safety Statutes or Regulations

In connection with liability for defective design 

or inadequate instructions or warnings:

(a) a product‟s noncompliance with an 

applicable product safety statute or 

administrative regulation renders the product 

defective with respect to the risk sought to 

be reduced by the statute or regulation; and

(b) a product‟s compliance with an applicable 

product safety standard or administrative 

regulation is properly considered in 

determining whether the product is defective 

with respect to the risks sought to be 

reduced by the statute or regulation, but such 

compliance does not preclude as a matter of 
18

law a finding of a product defect.

The District Court admitted such evidence in this case. 

It permitted Bell to demonstrate its compliance with the 

CPSC Standard, 16 C.F.R. § 1203, as evidence that its helmet 

was not “defective,” under section 2 of the Restatement 

(Third) of Torts.

The Covells contend that this was reversible error 

because section 4, not section 2, of the Restatement (Third) of 

Torts deals with governmental regulations, and—setting aside 

all debate over the validity of our holding in Berrier—there 

has been no indication from the Supreme Court of 

Pennsylvania that it would apply section 4. Because section 4 

is not in play, they contend, there was no basis upon which 

the District Court could have admitted evidence of Bell‟s 

compliance with the CPSC Standard, regardless of which 

version of the Restatement it applied. For support, they rely 

upon Lewis v. Coffing Hoist Division, Duff-Norton, Co., 528 

A.2d 590, 594 (Pa. 1987), which applied section 402A and 

held that evidence of industry practice or regulation is 

inadmissible in products liability cases. The Lewis Court 

reasoned that to admit industry practice and regulation in 

products liability cases would be to “improperly [bring] into 

the case concepts of negligence law.” Id.

We are not persuaded. As a threshold matter, we 

believe that to cite to Lewis is to beg the very question at 

issue in this appeal: may district courts applying Pennsylvania 

law to products liability cases admit evidence that is relevant 

to negligence-type concepts, like duty of care or 

forseeability? To rely upon Lewis (handed down in 1987, 

during the zenith of Pennsylvania‟s no-negligence-in-strict-
19

liability regime) would be to assume the question out of 

existence, because Lewis based its reasoning entirely upon 

the premise that there shall be no negligence in products 

liability. See id. No longer can a court assume that premise is

true—see Davis, 690 A.2d at 186 (applying certain 

negligence principles to products liability)—which means, by 

extension, that no longer can a court assume Lewis accurately 

reflects the law of Pennsylvania, cf. Aetna Life & Casualty

Co. v. Barthelemy, 33 F.3d 189, 193 (3d Cir. 1994) (“Where 

stops the reason, there stops the rule.” (quoting Karl N. 

Llewellyn, Jurisprudence: Realism in Theory and Practice

217 (1962))).

Whether the District Court erred in admitting evidence 

of the CPSC Standard thus depends not on pre-Berrier

decisions like Lewis, but upon the post-Berrier legal 

framework that controls Pennsylvania products liability cases. 

In our view, it is highly unlikely that the Supreme Court of 

Pennsylvania would apply sections 1 and 2 of the 

Restatement (Third) of Torts (allowing negligence concepts), 

but not section 4 (providing for relevant industry regulation).

We have difficulty imagining a negligence-friendly products 

liability regime that ignores compliance or non-compliance 

with pertinent state and federal regulations. At any rate, we 

need not determine whether the Supreme Court of 

Pennsylvania would adopt section 4 because we agree with 

Bell that evidence of its compliance with the CPSC Standard 

was relevant to section 2 of the Restatement (Third) of Torts

as applied in Berrier, and was admissible pursuant to the 

Federal Rules of Evidence. The relevancy provisions of the 

Federal Rules of Evidence control in this case because they 

are “arguably procedural.” See Kelly v. Crown Equip. Co., 

970 F.2d 1273, 1278 (3d Cir. 1992) (Federal Rules of 
20

Evidence that are “arguably procedural” control in diversity 

actions, “notwithstanding Pennsylvania law to the contrary.”). 

Under the Federal Rules of Evidence, “„[r]elevant evidence‟

means evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the 

action more probable or less probable than it would be 

without the evidence,” Rule 401, and “[a]ll relevant evidence 

is admissible, except as otherwise provided by the 

Constitution of the United States, by Act of Congress, by 

these rules, or by other rules prescribed by the Supreme Court 

pursuant to statutory authority,” Rule 402.

Applying this standard, we conclude that evidence of 

Bell‟s compliance with the CPSC Standard was relevant to 

the jury‟s inquiry because it went to at least two facts of 

consequence under section 2 of the Restatement (Third) of 

Torts, section 2. First, the CPSC Standard sets forth detailed 

rules for impact resistance and testing, and for labels and 

warning—both on the helmet and its sales packaging. 

Evidence that Bell complied with the CPSC Standard‟s 

requirement for impact resistance testing makes it “more 

probable,” Rule 401, that “all possible care was exercised in 

the preparation and marketing of the product,” Restatement 

(Third) of Torts § 2(a). Second, evidence that Bell complied

with the CPSC Standard makes it “less probable,” Rule 401, 

that “the foreseeable risks of harm posed by the product could 

have been reduced or avoided by the provision of reasonable 

instructions or warnings,” Restatement (Third) of Torts 

§ 2(c). Of course, such evidence was not conclusive on these 

points, but it was relevant and therefore presumptively 

admissible under the Federal Rules.

Our conclusion in this respect—i.e., that industry 
21

standards and government regulations are relevant to facts of 

consequence in this case—is also in line with the 

Commentary to section 2 of the Restatement (Third) of Torts. 

Comment (b) explicitly states that industry regulations may 

be relevant to a plaintiff‟s case under section 2, irrespective of 

section 4:

Section 4, dealing with violations of statutory 

and regulatory norms, also provides an alternate 

method of establishing defect. A plaintiff is not 

required to establish the standard for design or 

warning under § 2, but merely to identify a 

government-imposed standard. 

Id. § 2 comment (b). Further, comment (d) states that 

defendants may admit evidence of industry practice to show 

that an alternative design would not have made their product 

safer:

The defendant is thus allowed to introduce 

evidence with regard to industry practice that 

bears on whether the omission of an alternative 

design rendered the product not reasonably safe. 

While such evidence is admissible, it is not 

necessarily dispositive.

Id. § 2 comment (d). The commentary to section 2 of the 

Restatement (Third) of Torts thus buttresses our conclusion 

that evidence related to the CPSC Standard was properly 

admitted in this case.

In sum, we conclude that we need not consider 

whether evidence of the CPSC Standard was admissible 
22

pursuant to section 4 of the Restatement (Third) of Torts 

because in this case the evidence was admissible pursuant to 

section 2, as applied in Berrier. We will therefore affirm the 

District Court.

* * * * *

We have considered all of the arguments advanced by 

the parties and conclude that no further discussion is 

necessary. The judgment of the District Court will be 

AFFIRMED.

__________