On Appeal From the United States District Court For the Middle District of Pennsylvania-Scranton, Civil Action No. 85-1322.
Sloviter and Stapleton, Circuit Judges, and Brotman, District Judge.*fn*
STAPLETON, Circuit Judge.
In this product liability, diversity action, appellant Nancy Hon seeks recovery for the death of her husband, William. The district court entered summary judgment for appellee Stroh Brewery Company (Stroh). See Hon v. Stroh Brewery Co., 665 F. Supp. 1140 (M.D. Pa. 1987). Because we find that triable issues of fact exist, we will reverse.
It is undisputed that William Hon died from pancreatitis at the age of 26. Prior to contracting this disease, Mr. Hon had been in excellent health. Mrs. Hon claims that her husband's pancreatitis resulted from his consumption of alcohol.
The record contains evidence of Mr. Hon's drinking habits only for the six years immediately preceding his death. During that time, according to the evidence tendered by Mrs. Hon, Mr. Hon's alcohol consumption consisted mainly of Old Milwaukee Beer and Old Milwaukee Light Beer, both of which are manufactured by Stroh. He may also have consumed other brands of beer from time to time and only occasionally drank hard liquor. Mr. Hon consumed beer at the rate of two to three cans per night on an average of four nights per week. Mr. Hon never gave a reason for preferring Old Milwaukee other than its taste. In particular, he never indicated that he was in any way influenced by Stroh's advertisements for its beer.
In response to Stroh's summary judgment motion, Mrs. Hon introduced an affidavit of Dr. Harry Plotnick, a toxicologist and pharmacologist.*fn1 In his affidavit, Dr. Plotnick expresses his opinion that Mr. Hon's drinking caused his pancreatitis.*fn2 Dr. Plotnick then goes on to state several other opinions, which may be summarized as follows: (1) the understanding shared by members of the public is that excessive and prolonged use of alcoholic beverages is likely to result in disease, principally of the liver; (2) Mr. Hon's case was not within the risk thus appreciated by the public both because (a) his use was prolonged but not excessive and (b) his disease was of the pancreas; and (3) the public's understanding is "archaic" because medical science has now established that either excessive or prolonged, even though moderate, use of alcohol may result in diseases of many kinds, including pancreatic disease.
Mrs. Hon also filed an affidavit of Dr. Jack Marks, a medical doctor, which states that "small amounts of alcohol taken for a relatively brief period of time are occasionally lethal." Dr. Marks relies in part on medical literature reporting that "no threshold of toxicity can be established with ethanol consumption . . . ." App. at 188a-189a.
Finally, Mrs. Hon tendered television advertising boards showing commercials that have been aired to promote Old Milwaukee beer. See App. at 173a-184a. Mrs. Hon offered these advertising boards to show that Stroh has attempted to cultivate a belief among the consuming public that moderate consumption of its product is safe.
We exercise plenary review over grants of summary judgment motions to determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could find for the party opposing the motion. Equipmark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987). We must review all facts in a light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).
The law of Pennsylvania applies to this diversity case. Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Since no Pennsylvania or Third Circuit case specifically addresses the liability of an alcoholic beverage manufacturer to a Pennsylvania consumer who dies as the result of consuming its produce, we are required by controlling precedent to predict how the Supreme Court of Pennsylvania would decide the issues before us. E.g., McGowan v. Univ. of Scranton, 759 F.2d 287, 291 (3d Cir. 1985). In performing such a task, we accept decisions of Pennsylvania's intermediate courts as presumptive evidence of Pennsylvania law. ...