A Warning Sign? The Washington Supreme Court Declines to Adopt the Draft Restatement (Third)

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The Washington Supreme Court recently issued its decision in Erickson v. Pharmacia LLC, one of a number of related lawsuits filed by teachers and their family members seeking damages for chemical exposure at Washington schools—cases collectively seeking over a billion dollars in damages. While the case is significant in its own right, it is of particular interest to practitioners and scholars focused on the American Law Institute’s ongoing project of drafting the Restatement (Third) of Conflict of Laws.  At issue was a recurring question of choice-of-law methodology: when, if ever, courts should apply different states’ laws to different issues in a single case—what conflict scholars call dépeçage. The case attracted competing amicus briefs from luminaries in the conflicts field. On one side, Professor Kermit Roosevelt III, Reporter for the Restatement (Third), urged the court to adopt the in-process Restatement draft. On the other, a group of distinguished scholars led by Professor Symeon Symeonides—widely regarded as one of the world’s leading experts on choice of law—defended Washington’s established approach under the Restatement (Second). Ultimately, the Court sided with Symeonides, reaffirming Washington’s commitment to the Restatement (Second)’s flexible, issue-by-issue methodology. The decision provides an early indication of how state courts may respond to the Restatement (Third)—and suggests potential obstacles to its widespread adoption.

The Case: PCB Exposure in Washington Schools

Three public school teachers became ill after working at old school buildings in Monroe, Washington, that contained polychlorinated biphenyls (PCBs) manufactured decades ago by a predecessor-in-interest to defendant Pharmacia LLC—a company with its principal place of business in Missouri, where the PCBs were manufactured. The teachers sued Pharmacia, and, after a trial, a jury awarded the plaintiffs both compensatory and punitive damages.

The choice-of-law issues were complex. All three teachers lived in Washington, suffered injuries in Washington, and filed suit in Washington. But the defendant’s predecessor was based in Missouri, where the products were manufactured. The trial court applied Washington’s product liability statute (the WPLA) to assess liability but applied Missouri’s law on the statute of repose—which, unlike Washington’s 12-year limit, imposed no time bar on the claims. The trial court also applied Missouri law to authorize punitive damages.

The Court of Appeals reversed in part. On the statute of repose, the court disagreed with the trial court, holding that Washington law—not Missouri law—applied. The court reasoned that because the WPLA is a comprehensive statutory scheme that includes within it a statute of repose, the legislature intended to integrate the statute of repose’s limitation on liability into the WPLA itself. The court held that statutes of repose are “claim-defining” and cannot be separated from the underlying law of liability. Because the trial court had applied Washington’s product liability statute to assess liability, the Court of Appeals concluded that Washington’s statute of repose must also apply.

With respect to punitive damages, the Court of Appeals affirmed that Missouri law applies to authorize such damages. However, the court held that even though Washington law supplies the substantive product liability standards, the availability of punitive damages must be limited to claims recognized under Missouri product liability law—which does not include a post-sale failure-to-warn claim. Because the jury’s verdict form did not require specification of which liability theory supported the punitive damages award, the court remanded with instructions to include a special interrogatory on that question.

Professor Roosevelt’s Amicus Brief

Roosevelt has long defended the Restatement (Third) as the fulfillment of the Restatement (Second)’s original vision. In particular, Roosevelt has argued that the Reporter for the Restatement (Second), Willis Reese, understood his project as “a transitional document”—a framework that would generate the information necessary to write a Restatement (Third). Reese hoped that courts applying the Restatement (Second)’s multifactor balancing test would “produce patterns of decisions that could be captured in narrow rules that reflected state policies and interests.” According to Roosevelt, that hope has been fulfilled: case law “has gradually converged into uniform and, indeed, sensible results in several patterns of tort conflicts.” The Restatement (Third) attempts to provide the specific rules that Reese could not, synthesizing decades of case law decided under modern choice-of-law approaches into clearer, more predictable standards.

In his Erickson brief, Roosevelt pressed this continuity argument to the Washington Supreme Court. He framed adoption of the Restatement (Third) not as a departure from Washington’s existing jurisprudence, but as the natural next step in a process Washington began when it adopted the Restatement (Second) in 1974. Roosevelt argued that while the Restatement (Second) improved upon rigid territorial rules, it suffers from significant defects: it is “labor-intensive and unpredictable,” and “said almost nothing about when selecting the laws of different states would be a mistake.” The Restatement (Third), by contrast, offers “narrow, policy-sensitive rules that incorporate the insights of modern analysis while retaining a simple and user-friendly form.”

Roosevelt next pointed to specific provisions of the Restatement (Third) that would resolve the choice-of-law disputes in Erickson. Section 6.11 provides special rules for products liability cases, generally applying the law of the state where the product was delivered to the initial end user if that state is also the plaintiff’s domicile or place of injury—here, Washington. Section 6.11, comment h, further explains that statutes of repose should be governed by the same law that governs liability, because, as Roosevelt writes, “it is part of the definition of the claim in much the same way as an element of a tort.” Roosevelt further notes that this understanding was consistent with the Court of Appeals’ interpretation that the WPLA’s statute of repose is “inextricably linked to the cause of action” provided by the statute.

Section 6.12 addresses punitive damages, providing that they should be governed by the same law selected for liability (or by the specific tort rules if applicable). The rationale is “to avoid the distortion that can result from selecting different states’ laws to govern liability and punitive damages”—recognizing that dépeçage (issue-by-issue analysis) for punitive damages is generally inappropriate. Since products liability is listed as a specific tort in § 6.11, Washington law should govern both liability and punitive damages.

Based on this analysis, Roosevelt urged the Washington Supreme Court to hold that Washington law governs both the statute of repose and punitive damages. Roosevelt’s brief concluded that adopting the Restatement (Third)’s approach would allow the Court to “resolve this case easily and correctly while providing clear guidance for the future.”

The Symeonides et al. Amicus Brief

A separate amicus brief was filed by a group of distinguished conflicts scholars led by Professor Symeon Symeonides. This brief took a different approach, defending Washington’s established practice of issue-by-issue analysis and arguing that the Restatement (Second) supported dépeçage on the facts of Erickson.

The Symeonides brief emphasized that Washington has consistently applied issue-by-issue analysis in tort cases since it adopted the Restatement (Second) decades ago. The brief more broadly noted that “issue-by-issue analysis has become an integral feature of all the approaches produced by the choice-of-law revolution and followed in the more than 40 states that have abandoned the first Restatement.” According to the brief, such analysis “yield[s] more nuanced and individualized solutions to conflicts cases.” The brief further argued that, under the Restatement (Second), statutory causes of action are treated the same as common law ones for choice-of-law purposes. Thus, absent an explicit choice-of-law rules that would displace Washington’s common-law issue-by-issue approach, courts should apply the most significant relationship test separately to each issue, including the statute of repose and punitive damages—just as the trial court did.

Though the Symeonides brief did not explicitly address either the Restatement (Third) or Roosevelt’s brief, by defending the appropriateness of dépeçage under Washington’s existing Restatement (Second) framework, its position complicated Roosevelt’s argument that the Restatement (Third)’s rules—eschewing dépeçage under the facts here—are simply an extension of Washington’s current practice.

The Supreme Court’s Decision

In a decision filed October 30, 2025, the Washington Supreme Court reversed in part. Chief Justice Debra Stephens, writing for the majority, reasoned that the WPLA contains no express choice-of-law directive that would displace Washington’s common-law methodology for resolving conflicts relating to either the statute of repose or damages. The Court agreed with the Symeonides brief that, absent such a legislative directive, courts should apply Washington’s established Restatement (Second) approach. Analyzing the statute of repose and punitive damages separately under the most significant relationship test, the Court concluded that Missouri had a stronger interest than Washington in both issues.

For the statute of repose, the Court found that Washington’s 12-year limitation was designed primarily to protect Washington defendants from stale claims, whereas Missouri’s lack of any products liability statute of repose reflected that state’s policy judgment about manufacturer liability. Given that the principal place of business of Pharmacia’s predecessor and the place of manufacture were both in Missouri, the Court concluded Missouri had the more significant relationship to the repose issue. Similarly, for punitive damages, the Court found that Missouri’s interest in regulating the conduct of Missouri-based manufacturers outweighed Washington’s interest in limiting damages. In explaining its decision, the Court emphasized continuity with Washington precedent. The Court stated that common law—including Washington’s choice-of-law methodology—“is not to be lightly discarded,” noting it had followed the Restatement (Second) for over fifty years.

Justice Gordon McCloud, joined by two other justices, dissented. The dissenting justices disagreed with the majority primarily on statutory interpretation. In their view, the WPLA’s plain language demonstrates clear legislative intent that the statute of repose is part of the substantive law that defines the WPLA claim itself. The dissent argued that the statute of repose is “mandatory to the existence of a WPLA claim” and therefore cannot be separated from the liability provisions through choice-of-law analysis. The dissent criticized what it saw as an anomalous result: applying Washington law to define liability while applying Missouri’s absence of any repose period—a configuration that, in the dissent’s view, serves neither state’s actual policies.

Looking Ahead: Implications for the Restatement (Third)

The Erickson decision highlights what may be a challenge facing the Restatement (Third): persuading courts that its new rules represent continuity with, rather than departure from, existing precedent. This is particularly important for Restatement (Second) jurisdictions like Washington, which represent the largest bloc of potential adopters. Roosevelt’s brief made this pitch, arguing that the Restatement (Third) fulfills the Restatement (Second)’s original vision by synthesizing convergent patterns in case law into specific rules. Yet the Washington Supreme Court nonetheless chose to adhere to the Restatement (Second)’s more flexible approach.

While a single data point is hardly a trend, one potential implication is that the Restatement (Third)’s theoretical apparatus may be obscuring this continuity message. The draft Restatement is heavily invested in what Roosevelt calls the “two-step” approach—first determining whether conflicting laws have overlapping “scope,” then using “priority rules” to determine which law governs. This framework has roots in governmental interest analysis, which, despite its influence in legal academia, remains a minority approach among American courts. If courts perceive the Restatement (Third) as requiring them to reconceptualize their jurisprudence around a particular theory rather than simply adopting clearer rules, they may resist even those rules they find attractive. This is particularly true when—as was the case here—leading scholars express disagreement on the appropriate outcome, likely engendering further skepticism of claims that new rules simply codify established practice.

As Lea Brilmayer and I have suggested, for the Restatement (Third) to achieve widespread adoption, it may need to present its rules more explicitly as descriptive summaries of convergent judicial practice—emphasizing empirical patterns rather than theoretical frameworks. The Restatement (Second) succeeded because it accommodated multiple theoretical orientations. Courts could apply the most significant relationship test while understanding it through various lenses, whether as implementing state interests, identifying the state with the strongest connection, or simply as a pragmatic method for resolving difficult cases. A Restatement (Third) that emphasizes this kind of flexibility—presenting specific rules as emerging from patterns in actual decisions rather than from theoretical commitments—would respect the theoretical pluralism that exists in American choice of law. This approach would avoid the danger that courts will see the Restatement (Third) as asking them to choose between their established Restatement (Second) jurisprudence and a new theoretical approach.

The Washington Supreme Court’s decision to stay the course with the Restatement (Second), despite Roosevelt’s argument for continuity, could be read to suggest that the Restatement (Third)’s theoretical framework may be getting in the way of its own practical contributions. The lesson may be that the most promising path to widespread acceptance involves further centering empirical convergence and continuity with existing practice, rather than theoretical structure and analytical innovation.