Josephs v. Harris Corp.

• Citation: 677 F.2d 985
• Decision Date: 13 May 1982
• Docket Number: No. 81-2159,81-2159
• Parties: 10 Fed. R. Evid. Serv. 612 Howard Jay JOSEPHS, Appellant, v. HARRIS CORPORATION, a Delaware Corporation.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 985

677 F.2d 985

10 Fed. R. Evid. Serv. 612

Howard Jay JOSEPHS, Appellant, v. HARRIS CORPORATION, a Delaware Corporation.

No. 81-2159.

United States Court of Appeals Third Circuit.

Argued Feb. 19, 1982.

Decided May 13, 1982.

Arthur D. Rabelow (argued), Artzt & Rabelow Associates, Bensalem, Pa., for appellant.

Charles W. Craven (argued), John P. Penders, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellee, Harris Corp.

Before ADAMS and SLOVITER, Circuit Judges, and STERN, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

In this products liability action filed in federal court on the basis of diversity jurisdiction, plaintiff Howard Jay Josephs appeals following a jury verdict in favor of the defendant, Harris Corporation. Josephs was injured while cleaning a printing press which was manufactured by Harris Corporation in 1963, and sold in a used condition by Harris to Josephs' employer, Pocono Press, Inc., in 1973. Josephs alleged that his injuries were caused by a defective design and by Harris' failure to adequately warn and instruct on the safe operation of the press. After a three-day trial, the jury found by special interrogatory that "the Harris Press (was not) defective at the time of its sale to Pocono Press." Accordingly, judgment was entered for the defendant and plaintiff appeals.

Plaintiff claims (1) that the court erred in granting defendant's in limine motion which precluded plaintiff from introducing any testimony relating to standards and publications promulgated and published subsequent to 1963, the year that defendant manufactured the press in issue, when in fact defendant resold the press to plaintiff's employer in 1973; (2) that the court erred in refusing to allow plaintiff redirect examination of his expert witness and cross-examination of defendant's witnesses with regard to standards, publications or textual material adopted or published subsequent to 1963; (3) that the court erred in excluding evidence of or reference to remedial measures undertaken and warnings issued by defendant subsequent to plaintiff's injury; and (4) that the court erred in denying plaintiff's motion to compel answers to interrogatories requesting information as to prior accidents involving the press which injured Josephs and as to similar Harris presses.

II. FACTS

On the date of the accident, June 18, 1979, Josephs was employed for the summer by Pocono Press, Inc. ¹ as a pressman's helper. He was nineteen years of age and had begun working at Pocono Press a few weeks earlier. As a pressman's helper, Josephs' duties included cleaning the printing press at the end of the day.

The press in question, Harris Model LUM, stood over seven feet tall and had five different control stations. At each control station there was a series of three buttons, positioned vertically. The top button was labeled "safe", and when pushed in the machine would not run. This button also had a lock out feature, i.e., it was surrounded by a ring which when rotated clockwise prevented the press from being operated from any control station. The middle button was labeled "jog" and when depressed the press ran forward; when released the press stopped by inertia. The third button was labeled "reverse" and operated in the same manner as the "jog" button except that the press ran in the opposite direction.

In order to clean the LUM press, it was necessary for someone to crawl under the press and wipe the cylinders. On June 18, 1979, Josephs was lying underneath the press wiping the second, or bottom cylinder, with a cleaning cloth and solvent. Only a small portion of the cylinder is exposed beneath the press. After cleaning the exposed portion, Josephs had to use the "jog" button to inch the cylinder around, thus exposing more of the cylinder's surface. The process of jogging and wiping would normally continue until the entire surface of the cylinder was cleaned.

The control box that is used while cleaning the cylinder is located underneath the press. Because of the way Josephs was positioned, he could not see the control buttons and the cylinder at the same time. He was using his left hand to push the "jog" button and his right hand to wipe the cylinder. Although Josephs cannot recall the actual accident, and there was no one watching him clean the cylinder, it appears that he was pushing the jog button to advance the cylinder when the cleaning rag in his right hand got caught in the cylinder. His hand was dragged in with the cleanup rag, causing the injury for which suit was brought, a crush amputation of the thumb and portions of the first three fingers.

In face of the jury's adverse verdict, Josephs must demonstrate that the court's evidentiary rulings and discovery rulings which he challenges were not only erroneous but were so prejudicial as to amount to reversible error. Fed.R.Civ.P. 61; Fed.R.Evid. 103(a).

III. EVIDENTIARY RULINGS

Josephs challenges the court's action in granting Harris' in limine motion presented and ruled upon the morning the trial began which, in effect, limited Josephs' proof of the alleged defective condition to the date of manufacture, 1963, rather than the date of sale to Josephs' employer, 1973. The court's order precluded Josephs from introducing at trial: "Any evidence relating to standards, publications or text materials adopted or published subsequent to the manufacture of the Harris Press in 1963." App. at 79a, 82a. Inexplicably, although all of plaintiff's evidence was required to focus on the date of manufacture, the time frame referred to in the interrogatory given to the jury was "the time of (the) sale to Pocono Press."

Although the record does not contain any statement by the district court as to the basis for its evidentiary rulings limiting the introduction of post-1963 evidence, the parties appear to have understood that the court ruled that in determining whether a defendant will be held strictly liable for a defective product under § 402A of the Restatement (Second) of Torts, the defectiveness of the product must be decided by reference to the date of manufacture rather than the date of sale. We believe the court erred in so ruling. The Pennsylvania Supreme Court has held that § 402A of the Restatement (Second) of Torts is the applicable law in Pennsylvania. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The language of § 402A manifestly applies to the act of "selling" rather than "manufacturing." It provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965) (emphasis added).

A further indication that this section focuses upon the date of the sale of the product rather than the date of its manufacture can be gleaned from the official comments to § 402A. They state, in relevant part:

g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the condition that it was then defective, the burden is not sustained.

Safe condition at the time of delivery by the seller will, however, include proper packaging, necessary sterilization, and other precautions required to permit the product to remain safe for a normal length of time when handled in a normal manner.

Restatement (Second) of Torts § 402A, Comment g (emphasis added).

By its express language, § 402A applies to sellers engaged in the business of selling the relevant product. There has been no contention that Harris does not fall within this category. The policy of § 402A is to protect the ultimate user for defects in goods caused by those who put such goods in commerce. Had Harris sold the used press manufactured by another, it would be liable if the product was defective at the time of sale. There is no reason why the fact that Harris was the manufacturer as well as the subsequent seller should change this result. ² Thus, we hold that under § 402A the relevant date in determining defective condition is the date of sale by a seller covered by the section, rather than the date of manufacture of the product.

In order to determine whether the court's ruling caused prejudicial error, it is necessary to consider the context in which the issue arose. It was Josephs' contention that the press was defective because it did not have two jog buttons on the underside of the press requiring the simultaneous depression of both buttons, using both hands, in order to advance the cylinder. If the press had been designed in that manner, both hands would have been required to push the buttons, so that it would have been impossible for Josephs' hand to have been caught in the moving cylinder. Josephs sought to prove this theory by the testimony of his expert witness, Stanley Jakubowski, who testified that the press was not safe because the single jog button permitted the...