DiFrancesco v. Excam, Inc.

• Decision Date: 10 May 1994
• Citation: 434 Pa.Super. 173,642 A.2d 529
• Parties: Charles DiFRANCESCO and Anna M. DiFrancesco v. EXCAM, INC., Joffe's Gun Shop, Inc. and RSR Wholesale Guns, Inc., Appellants.
• Court: Pennsylvania Superior Court

Page 529

642 A.2d 529

434 Pa.Super. 173

Charles DiFRANCESCO and Anna M. DiFrancesco v. EXCAM, INC., Joffe's Gun Shop, Inc. and RSR Wholesale Guns Inc., Appellants.

Superior Court of Pennsylvania.

Argued Feb. 8, 1994.

Filed May 10, 1994.

Michael J. Cawley, Philadelphia, for appellants.

Alexander A. DiSanti, Media, for appellees.

Before KELLY, POPOVICH and HESTER, JJ.

HESTER, Judge:

Excam, Inc., Joffee's Gun Shop, Inc., and RSR Wholesale Guns, Inc., appeal following a jury award of $125,000.00 in favor of appellees. Appellants were held responsible for the injuries sustained by Charles DiFrancesco after the Excam TA38S derringer hand pistol he was carrying in a sweater pocket accidentally discharged. The jury held appellants liable on a theory that the pistol was defectively designed and manufactured. Appellants maintain that they were entitled to a judgment notwithstanding the verdict or a new trial. Their arguments lack merit, and we affirm.

In this appeal from a jury verdict in a firearms products liability case, the following facts are pertinent. On December 6, 1987, Charles DiFrancesco, ("appellee"), purchased an Excam TA38S derringer pistol from Joffee's Gun Shop. The derringer was manufactured by Excam and distributed to Joffee's by RSR.

On November 15, 1988, at approximately 4:00 p.m., appellee, who was working in his son's bar, was carrying the derringer pistol in the right-hand pocket of his sweater vest. When appellee bent over the ice machine, he inadvertently struck the hammer spur of the loaded derringer pistol on a box causing the pistol to discharge. As a result, appellee suffered a gun shot wound which penetrated his right abdomen and exited his posterior right flank. He required extensive emergency surgery and further follow-up surgery.

On August 13, 1990, appellee and his wife, Anna, instituted this action against appellants based upon a theory of strict liability. They contend that two different aspects of the design of the Excam model TA38S derringer made the product unreasonably dangerous, unsafe, and defective. First, they maintained that the design of the gun posed an unreasonable danger due to the fact that a blow to the exposed hammer when resting against the breach, or down position, could cause an accidental discharge. Second, appellees maintained that in addition to the three hammer positions identified in the instruction manual, there was, in fact, a fourth or "pseudo half-cocked position." Appellees argued that this fourth position constituted a defect since pressure on the thumb safety would cause the hammer to drop into the down position.

At trial, appellee testified that he placed the gun in the third or half-cocked position as described in the instruction manual. Appellee understood this to mean that the safety was in place. He called several expert witnesses who supported his theory regarding the existence of the fourth hammer position. Appellants likewise called upon experts to defend the design of the derringer. Based upon the evidence presented at trial, the jury concluded that the pocket pistol was defective in design and manufacture.

Appellants filed post-verdict motions arguing that prejudicial error and appellees' inability to establish the defective design of the derringer entitled them to judgment notwithstanding the verdict or a new trial. The court denied the motions. This appeal followed.

First, appellants argue that they are entitled to judgment notwithstanding the verdict since appellees did not provide evidence of an alternative feasible design and therefore, did not establish the defective nature of the derringer's design. Our standard of review of an order denying judgment notwithstanding the verdict is whether

there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: j.n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske-Olds-Cadillac-GMC, 413 Pa.Super. 308, 312, 605 A.2d 373, appeal denied, 532 Pa. 665, 616 A.2d 985 (1992). An appellate court will reverse a trial court ruling only if it finds there was not sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably drawn from the evidence. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991, 993 (1982).

Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 42, 633 A.2d 605, 608 (1993).

Pennsylvania law requires a plaintiff to prove two elements in a products liability action: first, that the product was defective, and second, that the defect in the product was a substantial factor in causing the injury. Berkebile v. Brantley, 462 Pa. 83, 337 A.2d 893 (1975). In determining whether or not a product is defective, the design and operation of the product must be considered, including whether the product was equipped with the proper safety devices which would allow the user to avoid danger when using the product. Id. We have held that in a defective design case, the question is whether the product should have been designed more safely. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984).

Instantly, appellants argue that they are entitled to judgment notwithstanding the verdict because appellees offered no evidence of an alternative, feasible design which would support the jury's conclusion that the Excam .38 caliber derringer was defective. ¹ Appellants suggest that current Pennsylvania law requires a plaintiff to produce relative costs of the design considerations as well as any new dangers created and any reduction in the benefit of the newer, safer design. ² In essence, appellants suggest that case law requires a plaintiff to provide specifications and plans for safer designs as well as risk/effectiveness ratios. Pennsylvania courts have not imposed such rigorous restrictions in strict liability cases. To the extent that other courts have evaluated similar issues, they have held that evidence regarding design defects is subject to a risk-benefit analysis when determining whether a product is unreasonably dangerous pursuant to Restatement (Second) Torts § 402A. ³ Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978); Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983). There is no similar requirement in Pennsylvania.

Further, our review of the record reveals that testimony was offered based upon registered patents for designs which would eliminate the potential for the specific way in which appellee's gun discharged accidentally. The experts offered evidence that other hand guns on the market were equipped with safety features which reduced the risk of accidental discharge. While admittedly there were no comparables available with regard to a single-action pistol such as the TA38S derringer, appellees' expert, Robert S. Krauss, explained this was due solely to the fact that the appealability of concealable pocket firearms such as the derringer had waned in recent years. Therefore, most manufacturers had discontinued production, and there were few comparables. However, there were double action derringers on the market which incorporated the safety mechanisms recommended by Mr. Krauss. Whether installation of the recommended safety device would change the operation of the derringer was an issue at trial. Mr. Krauss explained that the "idea is not to have a gun, it's to have what the gun does." Notes of Testimony, ("N.T."), 4/15/92, at 136.

Testimony found to be credible by the jury established that the hammer of the gun could be placed in a false half-cocked position which was not described in the instruction manual. The experts testified that in this position, the hammer of the gun could easily move into the discharge position if bumped. The voluminous evidence presented throughout this ten-day trial which supports the jury's determination that the derringer pistol was defective in both its design and manufacture is aptly summarized and evaluated by the trial court. The pertinent portions follow.

Plaintiff's witnesses, George Fassnacht and Robert Krauss, were qualified as experts and were properly allowed to testify on design alternatives for the TA38S derringer.

....

Whether a witness has been properly qualified to give expert opinion testimony is vested in the discretion of the trial court. Gottfried v. American Can Co., 489 A.2d 222 (1985). The standard for qualification of expert witnesses in Pennsylvania is a liberal one. "If a witness has any reasonable pretention to specialized knowledge on the subject under investigation, he may testify, and the weight to be given to his evidence is for the jury." Id. [489 A.2d] at 226. Although the witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire expertise as a result of formal schooling; expertise acquired by experience, is experience nonetheless. Id. In addition, a witness need not have had practical experience in a given industry in order to qualify as an expert on a product manufactured by a party to litigation. Wolford v. General Cable Co., 58 F.R.D. 583 (D.C.Pa.1973).

Plaintiff's expert, George Fassnacht, testified and was extensively cross-examined by Defendants' counsel regarding his credentials. (4/14/92 N.T. at 134-44). He is a forensic firearms consultant with many years of experience using and studying the science of ballistics. He spent three years with the Ordinance Technical Intelligence Service at Aberdeen Proving Ground in Maryland where he was assigned to the Chief of the small arms and aircraft weapons branch. In that capacity he examined, evaluated, and tested various types of small...