By Pamela C. Maloney, J.D.
The Pennsylvania Supreme Court’s ruling in Tincher v. Omega Flex, Inc., which established a new test for determining if a product was “defective,” did not alter a Pennsylvania federal district court’s decision to exclude expert testimony regarding the existence of a defect in an industrial lift table on the basis that the expert’s conclusions were the result of an unreliable methodology. Thus, the court granted the lift manufacturer’s renewed motion to exclude the expert’s testimony (DeJesus v. Knight Industries & Assoc., Inc., April 18, 2016, Pappert, G.).
The worker—a tool and die maker who worked for a Harley Davidson factory—was standing with his back to a lift table holding motorcycle clutches when another employee attempted to raise the lift table. A clutch on the table knocked over a chain rack holding several motorcycle chains, and the rack fell onto the worker’s leg causing serious injuries. The worker and his wife brought strict liability and negligence claims based on defective design against Knight Industries & Associates, Inc., the manufacturer of the lift table. The federal district court granted the manufacturer’s motion to exclude the worker’s expert testimony, finding that it was based on unreliable methodology, and also granted the manufacturer’s motion for summary judgment based on its finding that the worker failed to produce evidence that the addition of audio or visual warnings would constitute a reasonable alternative design as required under the Restatement (Third) of Torts.
Third Circuit appeal. While the worker’s appeal to the U.S. Court of Appeals for the Third Circuit was pending, the Pennsylvania Supreme Court issued its decision in Tincher, holding that the Restatement (Second) of Torts governed Pennsylvania products liability cases and that the Restatement (Third) would not be adopted as the law in Pennsylvania. In that same decision, the state high court rejected the long-standing method of applying the Restatement (Second) outlined in Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978), which had required Pennsylvania juries to be instructed that in cases of a supplier’s strict liability in tort, “the product must … be provided with every element necessary to make it safe for its intended use”; and that while a manufacturer of a product is not an insurer of a product’s safety, it may be a guarantor of the product’s safety. Instead, the state high court opted for a more “incremental approach,” holding that a plaintiff may prove that a product was defective under either the consumer expectations standard or the risk-utility standard.
Following the Pennsylvania Supreme Court’s decision, the Third Circuit, in a non-precedential decision, vacated the summary judgment for the manufacturer and remanded the case for further proceedings in light of Tincher [see Products Liability Law Daily’s April 7, 2015 analysis].
Third Circuit mandate on remand. On remand, the federal district court clarified that the only question the Third Circuit raised in its opinion was whetherTincher altered the court’s original decision. According to the district court, the Third Circuit did not address the merits of its previous order granting the manufacturer’s motion to exclude the expert’s testimony and the motion for summary judgment. Thus, consistent with “the mandate rule,” the remand court interpreted the Third Circuit’s decision as a limited mandate to evaluate how, if at all, Tincher altered the prior decision to exclude the expert’s testimony. Explaining that the Tincher decision articulated a new standard for assessing whether a product was defective, the court concluded that the change in Pennsylvania common law did not affect any aspect of the initial decision to exclude the expert’s testimony.
Admissibility of expert testimony. In reviewing the initial ruling on the manufacturer’s motion to exclude the opinions proffered by the worker’s expert, the federal district court found that the decision was not clearly erroneous. Instead, the initial decision had “parsed each of [the expert’s] conclusions and subjected them to the well-established admissibility framework articulated by the Third Circuit ....” Specifically, the court had determined that the expert had relied on facts not in the record, had used an academic source without attempting to replicate the environment at the time of the accident, and had relied on the “three-step safety hierarchy,” which the court said was of minimal value in assessing whether the lift table was defective.
In addition, there was no evidence to support the expert’s conclusion that the worker would have seen a visual warning because his back was to the lift table at the time of the accident. There was also no evidence that the worker would not have been injured if certain warning labels had been affixed to the lift table. Based on this review, the court decided to adhere to its previous decision to exclude the expert’s testimony.
The case is Civil Action No. 10-07434.
Attorneys: Peter M. Patton (Galfand Berger, LLP) for Harold DeJesus and Maria T. DeJesus. Anthony R. Sherr (Mayers Mennies & Sherr LLP) for Knight Industries & Associates, Inc. d/b/a Knight Global and Knight Industries, Inc.
Companies: Knight Industries & Associates, Inc. d/b/a Knight Global and Knight Industries, Inc.
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