                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 13-3570
                                      ____________

                                  HAROLD DEJESUS;
                                   MARIA DEJESUS,
                                              Appellants

                                             v.

                    KNIGHT INDUSTRIES & ASSOCIATES, INC.,
                     d/b/a Knight Global and Knight Industries, Inc.;
                              GEMINI PRODUCTS INC,
                     d/b/a Knight Ergonomics & Assembly Systems;
                        ENGMAN-TAYLOR COMPANY, INC.


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D. C. No. 2-10-cv-07434)
                     District Judge: Honorable Mary A. McLaughlin


                       Submitted under Third Circuit LAR 34.1(a)
                                   on June 3, 2014

              Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges

                                   (Filed: April 6, 2015)



                                        OPINION*



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge:

       Harold and Maria DeJesus appeal the District Court’s order, which granted

(i) Knight Industries & Associates, Inc.’s motion to preclude expert testimony, and

(ii) Knight’s motion for summary judgment on negligence and strict liability claims

arising from an alleged defectively designed lift table.

       In opposing summary judgment, DeJesus argued that the Restatement (Second) of

Torts was the substantive law that applied to his product liability claims.1 The District

Court applied the Restatement (Third) of Torts, consistent with this Court’s decision in

Covell v. Bell Sports, Inc.,2 holding that district courts must apply the Restatement

(Third) to design defect claims arising under Pennsylvania law, absent a controlling

contrary holding from the Pennsylvania Supreme Court. After the grant of summary

judgment for Knight and while the case was pending on appeal, the Supreme Court of

Pennsylvania decided Tincher v. Omega Flex, Inc. and held that “Pennsylvania remains a

Second Restatement jurisdiction.”3 At the same time, the Court overruled the long-

standing method of applying the Restatement (Second) outlined in Azzarello v. Black

Brothers.4

       DeJesus properly preserved his rights with respect to the issue resolved by

Tincher. He moved for a stay of the appeal pending the resolution of Tincher, which we




1
  See DeJesus v. Knight Industries, No. 10-7434, Doc. No. 69 at 24-28 (Dec. 7, 2012).
2
  651 F.3d 357 (3d Cir. 2011).
3
  104 A.3d 328, 399 (Pa. 2014).
4
  391 A.2d 1020 (Pa. 1978).
                                             2
denied.5 He also reserved his right to brief the issue of applicability of Tincher to his

claims in his appellate brief.6

       Because the law as decided by the highest court of the state has changed while the

case was on appeal, and because DeJesus preserved his rights with respect to the issues

that have since been resolved in Tincher, we will vacate the District Court’s grant of

summary judgment and remand the case for further proceedings in light of Tincher.7 As

to the issue of admissibility of the testimony of DeJesus’s expert witness, whether that

witness be Dr. Rider or another expert, we will leave the resolution of that question to the

District Court to be determined at the time that expert witness testimony is offered by

DeJesus.




5
  See Motion for Stay, No. 13-3570 (Nov. 25, 2013).
6
  See DeJesus Br. at 50.
7
  See Air Prods. & Chems., Inc. v. Hartford Accident and Indem. Co., 25 F.3d 177 (3d
Cir. 1994) (vacating the portion of the district court’s order allocating defense and
indemnity costs and remanding where intervening decision of state supreme court altered
the statement of law relied upon by the district court in its allocation).
                                              3
