At Least Pennsylvania Is Not That Completely Different

Back in 2020, we encountered Gustafson v. Springfield, Inc., 2020 Pa. Super. Lexis  843 (Pa. Super. Sept. 20, 2020), a decision so bizarre that it reminded us of a Monty Python movie.  That decision “employ[ed] a rationale, at once both paleolithically conservative and pro-plaintiffly radical, that would render any federal “tort reform” statute unconstitutional.”  Gustafson involved a federal statute that preempted most tort litigation involving firearms, the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§7901, et seq., (“PLCAA”), and declared that the PLCAA violated the Tenth Amendment.

Since it did not involve prescription medical product liability litigation, the Blog did not follow Gustafson all that closely – our last mention of it was in 2021, noting that en banc reargument had been granted and the singular panel opinion had been withdrawn.  However, the decision that resulted from the reargument was a mess.  Gustafson v. Springfield, Inc., 282 A.3d 739 (Pa. Super. 2022) (en banc), produced no majority and five different opinions from the nine judges.  Moreover, the overall result, which was to reverse the trial court’s dismissal of the suit, was contrary to the majority votes of the individual judges.  How could that be?  Here’s a brief description from a Pennsylvania appellate procedure article Bexis wrote about Gustafson:

The outcome in Gustafson thus differed dramatically from the votes of the nine en banc judges on the merits of the two issues.  The outcome was 5-4 in favor of reversal, as four judges would reverse on constitutional grounds, and one judge would reverse solely on statutory grounds.  On both of the two issues, however, the position advocated by the defendants was in the majority.  Seven justices agreed that, factually, the Arms Act was applicable to the Gustafson plaintiffs’ claims.  By a slimmer margin of 5-4, a majority of the Gustafson judges agreed that the Arms Act was constitutional.

J. Beck, “What Happens When Precedent Splinters? A Look at Gustafson,” Law.com (Nov. 17, 2022).

This bizarre result had one beneficial effect, it virtually forced the Pennsylvania Supreme Court to take the inevitable appeal in order to clean up the mess.  Which it did.  See Gustafson v. Springfield, Inc., 296 A.3d 560 (Pa. 2023) (granting review).

And last month, the Pennsylvania Supreme Court did indeed clean up the mess.  See Gustafson v. Springfield, Inc., 2025 Pa. Lexis 442 (Pa March 31, 2025).

We didn’t have a lot of interest in the preemption side of Gustafson, since only express preemption was at issue, and the PLCAA’s preemption language is not similar to any of the FDCA’s express preemption language.  Indeed, the amicus brief Bexis co-wrote (with Matt Vodzak) in Gustafson solely addressed the constitutional issue.  But the Pennsylvania Supreme Court’s Gustafson decision actually overperformed on preemption – from our perspective.  The decision recognizes the demise of the presumption against preemption in express preemption cases

[W]hen a Congressional statute contains an express preemption clause, courts do not invoke any presumption against pre-emption.  Instantly, we find that the PLCAA contains such an express preemption clause, which explicitly preempts state law relative to qualified civil liability actions.  Thus, we do not apply any presumption against preemption and, instead, focus on the PLCAA’s plain language.

Id. at *19 (citations and quotation marks omitted) (emphasis added). 

From now on we’ll be citing this holding from Gustafson, in addition to the Supreme Court case it quoted and followed, Commonwealth of Puerto Rico v. Franklin California Tax-free Trust, 579 U.S. 115, 125 (2016), in any express preemption briefing in Pennsylvania state court.  It shouldn’t be necessary, given the United States Supreme Court holding, but if the Third Circuit can ignore the Supreme Court, and not mind sticking out like a sore thumb, then we could see some of the Pennsylvania court judiciary doing the same – but not after Gustafson confirmed the presumption’s demise.

After all, four judges on the Gustafson en banc panel bought an unprecedented argument that the Tenth Amendment somehow makes all federal tort reform unconstitutional.  Fortunately, cooler heads prevailed – unanimously – at the Pennsylvania Supreme Court.  First, the court followed the “presumption of constitutionality.”  2025 Pa. Lexis 442, at *43.  Next, it found that the federal constitution’s Commerce Clause was plenty broad enough to cover express preemption of state common-law claims.  This evaluation does not occur in a vacuum; rather Congress has considerable leeway.  “[W]e are not required to determine if a regulated activity actually has a substantial effect on interstate commerce, but only whether a rational basis exists for so concluding.”  Id. at *49 (citation and quotation marks omitted).  Here, the “interstate nature of the [regulated] industry cannot be disputed,” since the product was made in one state but sold and caused harm in another.  Id. at 49-50.  “Under these circumstances, . . . it was reasonable for Congress to conclude that these suits would financially impact the firearms industry.”  Id. at *50 (citation omitted).  “Congress carefully crafted the PLCAA to ensure the Act only barred suits that directly involved products and defendants engaged in interstate commerce.”  Id. at *52 (citation omitted).  The statute’s definitions ensured that it “require[d] activity in interstate commerce to have already occurred,” and thus did “not compel anyone” to create the commerce that it regulated.  Id. at *53.

Because the PLCAA’s preemption of state tort law was within Congress’ Commerce Clause power, the Tenth Amendment, which applies only to “powers not delegated to the United States,” could not touch it.  Id. (quoting U.S. Const. amendment X).  “[N]umerous courts” had already “rejected arguments that the PLCAA violates the Tenth Amendment.”  It did not “commandeer” Pennsylvania or any other state to do anything “affirmative,” only to refrain from entertaining certain types of product liability lawsuits.  Id. at *56-57.

Likewise, the plaintiffs’ (and the original Superior Court opinion’s) reliance on Erie Railroad v. Tompkins, 304 U.S. 64 (1938) – ordinarily one of the Blog’s favorite cases – was not well taken.  Erie simply requires application of existing state law in diversity cases.  Id. at 63-64.  Gustafson was never even in federal court.  The decision recognized, that immediately before the Erie quote that plaintiffs touted was the phrase:  “[e]xcept in matters governed by the Federal Constitution or by acts of Congress” – precisely the niche for any federal tort reform statute.  Id. at  *58 (emphasis original).  Federal acts are “enforced over applicable state law pursuant to the Supremacy clause.”  Id. (footnote omitted):

To the extent the PLCAA requires state judges to dismiss civil actions that could otherwise proceed under state law, that requirement does not violate the anticommandeering doctrine, but is rather a product of the Supremacy Clause.

Id.  That is to say, preemption properly applies.  States are not commandeered.  They remain free to enact or create any state law they wish – subject to the preemptive power of this (or any other) congressional statute.

[T]he PLCAA does not bar states from enacting any law and instead merely preempts state law in relation to qualified civil liability actions. . . .  Under the PLCAA state legislatures remain free to pass any statute they deem appropriate, while the [PLCAA] does not limit states’ ability to recognize new causes of action through common law.  Nor does the predicate exception prohibit states from interpreting state statutes through their courts.. . . .  States remain free, either through their legislatures or their courts, to recognize any cause of action they deem appropriate.  All the PLCAA . . ., does is preempt certain causes of actions.

Id. at *60-61 (citations omitted).

Finally, the Supremacy Clause demonstrates that federalism does not give states the unfettered power to impose tort liability that plaintiffs claimed.  Federal preemption applies under the PLCAA (and generally) against “tort actions regardless of what branch creates them.  It does not matter if they are developed by the court or codified by the legislature.”  Id. at *65 (citation and quotation marks omitted).  Preemptive statutes thus have “no impact on how states choose to allocate their lawmaking authority.”  Id. at *66.

The Pennsylvania Supreme Court’s Gustafson opinion was unanimous.  That court has a well-deserved pro-plaintiff reputation, but even it balked the notion that the Tenth Amendment somehow precludes Congress from limiting state common-law tort litigation through preemptive statutes.  We hope that Gustafson is the final nail in the coffin of that bizarre idea, the antediluvian views of a handful of law school professors (2023 Pa S. Ct. Briefs Lexis 179) notwithstanding.