Moyer v. United Dominion Industries, Inc.

• Decision Date: 09 January 2007
• Docket Number: No. 04-2104.,04-2104.
• Citation: 473 F.3d 532
• Parties: Donald E. MOYER; Jayne L. Moyer; Karen L. Weidner; Michael T. Williams; Rebecca Williams; Thomas C. Sechrist; Patricia D. Sechrist; Steve R. Kern; Bonnie Kern, David P. Weidner v. UNITED DOMINION INDUSTRIES, INC., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 532

473 F.3d 532

Donald E. MOYER; Jayne L. Moyer; Karen L. Weidner; Michael T. Williams; Rebecca Williams; Thomas C. Sechrist; Patricia D. Sechrist; Steve R. Kern; Bonnie Kern, David P. Weidner v. UNITED DOMINION INDUSTRIES, INC., Appellant.

No. 04-2104.

United States Court of Appeals, Third Circuit.

Submitted pursuant to Third Circuit LAR 34.1(1) June 20, 2006.^*

Filed January 9, 2007.

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Lauren R. Goldman (Argued), Andrew L. Frey, Evan A. Creutz, Mayer, Brown, Rowe & Mawe, LLP, New York, NY, for Appellant.

Rosemary Pinto (Argued), Christopher D. Warren, Feldman & Pinto PC, Philadelphia, PA, for Appellees.

Before FUENTES, CHAGARES, and ROTH,^** Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

Plaintiffs are five factory workers who allege serious and permanent hand injuries after years of using defendant's swager, a machine used to form metal. Plaintiffs claim that the swager was defectively designed because it emitted excessive vibration, and that the defendant failed to warn them of the vibration risk.

Before trial, and in accordance with Pennsylvania law, the District Court conducted a risk-utility analysis and determined, as a threshold matter, that the swager was "unreasonably dangerous." After a two-week jury trial on the design defect and failure to warn claims, a jury awarded plaintiffs and their wives approximately $13.5 million. On appeal, we consider several evidentiary issues, as well as whether plaintiffs' claims are barred by the applicable statute of limitations. For the reasons that follow, we will affirm in part, reverse in part, and remand for further proceedings.

I. Background

Plaintiff-Appellees Donald Moyer, David Weidner, Michael Williams, Thomas Sechrist, and Steve Kern are employees of Brush Wellman, a company that manufactures beryllium copper alloys.¹ Defendant-Appellant United Dominion Industries, Inc. ("UNI") controls Fenn Manufacturing Corporation ("Fenn"), which produced the swager at issue in this litigation and sold it to Brush Wellman in 1983.² Brush Wellman installed the Fenn swager in its rod and wire department as a component of a bull block, a collection of machinery that operates to reduce the diameter of beryllium copper wire. As part of this process, metal coils are fed into a swager, which shapes the end of the coil into a point.

Plaintiffs claim that vibrations generated by the Fenn swager caused them to develop Hand-Arm Vibration Syndrome ("HAVS"), a dysfunction that can lead to severe pain, numbness, and motor difficulties in the operator's hands and arms. Plaintiffs state that they experience near-constant pain and that they have difficulty performing ordinary activities such as driving a car, mowing the lawn, and playing sports with their children. The workers' wives state that their husbands' moods and temperaments have worsened since the injuries. Each plaintiff continues to work at Brush Wellman.

In 1994, some bull block operators complained of hand problems attributed to the Fenn swager. Brush Wellman hired WorkAbility, an ergonomic consulting firm, to look into the complaints. Following a January 1995 visit to Brush Wellman, Jeffrey Eckel, a WorkAbility representative, sent a letter to Brush Wellman offering various suggestions. At trial, Eckel testified that his letter suggested that operators use anti-vibration gloves and perform certain hand and wrist exercises, and that Brush Wellman rotate duties among employees and distribute discomfort surveys to operators. Eckel also testified that the letter attributed a "fair amount of vibration" to the swager but it noted that the amount of time each worker spent at the swager was minimal. In June 1995, Brush Wellman formed a committee to consider replacing the Fenn swager with a new model. In 1996, the company purchased a new model along with an optional feature sold separately: an automatic feed that eliminates exposure of the swager operator to the machine's vibration. Brush Wellman paid approximately $27,000 for the swager and $9,200 for the automatic feed.

In 1997, plaintiffs filed a strict liability action in the U.S. District Court for the Eastern District of Pennsylvania, alleging (1) that the Fenn swager was defectively designed because it did not have an automatic feed, and (2) that Fenn had a duty to provide adequate warnings about the vibrations generated by the Fenn swager and did not do so. The wives of the factory workers claimed loss of consortium. Following trial, the jury awarded $2,450,000 to Donald Moyer; $2,800,000 to Steve Kern; $1,600,000 to Thomas Sechrist; $3,400,000 to Michael Williams; $2,700,000 to David Weidner; and $100,000 to each employee's wife. Fenn then moved for judgment as a matter of law or, in the alternative, for a new trial, and plaintiffs sought delay damages under Rule 238 of the Pennsylvania Rules of Civil Procedure.³ The District Court denied Fenn's motions and awarded plaintiffs a total of $3,242,566 in delay damages.

On appeal, Fenn argues that the District Court erred by (1) making the "unreasonably dangerous" determination under an incorrect standard; (2) excluding evidence of misuse and improper maintenance of the swager by plaintiffs and by Brush Wellman; (3) excluding evidence of the lack of previous claims against Fenn for injuries caused by swager vibration; (4) excluding vibration exposure guidelines proffered by Fenn; (5) excluding evidence about foreseeability in relation to plaintiffs' failure-to-warn claim; (6) improperly instructing the jury; (7) failing to bar the claims of plaintiffs Moyer, Sechrist, and Kern under Pennsylvania's two-year statute of limitations for personal injury claims; (8) failing to find the damages awarded by the jury to be grossly excessive; and (9) awarding delay damages and excessive post-judgment interest to the plaintiffs. Fenn asserts that, based on all the relevant evidence, it is entitled to judgment as a matter of law on all claims. In the alternative, Fenn argues that in light of the District Court's various errors, a new trial is necessary.

II. Discussion

A. "Unreasonably Dangerous" Analysis

Under Pennsylvania law, strict liability allows recovery when a defective product that is "unreasonably dangerous" causes harm to a user or consumer. See Phillips v. A-Best Prod. Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995) (quoting Restatement (Second) of Torts § 402A). Yet, in Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1026 (1978), the Pennsylvania Supreme Court rejected the use of the "unreasonably dangerous" formulation as part of the jury instructions in products liability cases. In Azzarello, the Court was concerned that, although a jury is obviously competent to resolve disputes about the condition of a product, whether that condition justifies placing liability upon the supplier presents an entirely different question. Id. Because the Supreme Court believed the "unreasonably dangerous" decision to be a question of law, the resolution of which depends upon social policy considerations, it concluded that the judge must make that decision.

In Surace v. Caterpillar, Inc., 111 F.3d 1039 (3d Cir.1997), we considered how the trial judge should make the threshold unreasonably dangerous determination. Applying Pennsylvania law, we held that the judge should "engage in a risk-utility analysis, weighing a product's harms against its social utility." Id. at 1044. We identified some of the factors relevant to this analysis:

(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole; (2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury; (3) The availability of a substitute product which would meet the same need and not be as unsafe; (4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; (5) The user's ability to avoid danger by the exercise of care in the use of the product; (6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instruction; and (7) The feasibility, on the part of the manufacturer, of spreading the loss of [sic] setting the price of the product or carrying liability insurance.

Id. at 1046 (quoting Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408, 423 n. 5 (1984)). Relying on these factors, the judge makes the pre-trial determination as a matter of law. Id. (explaining that determination of "whether the product's condition justifies placing the risk of loss on the manufacturer or supplier" is a question of law for the judge); see also A-Best Prod. Co., 665 A.2d at 1171 n. 5; Azzarello, 391 A.2d at 1026. Furthermore, the judge makes the determination under a weighted view of the evidence, considering the facts in the light most favorable to the plaintiff. See A-Best Prod. Co., 665 A.2d at 1171 n. 5.

If the judge concludes that a product is "unreasonably dangerous" the case is submitted to the jury, which then decides, based on all the evidence presented, "whether the facts of the case support the averments of the complaint." Azzarello, 391 A.2d at 1026. In making this determination, however, the jury does not balance the risk-utility factors, even though the judge has only done so as a threshold matter. See, e.g., Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 527 A.2d 134, 138 (1987) (holding that the jury is not to be presented with riskutility factors); Restatement (Third) of Torts: Products Liability § 2, Reporters' Note, cmt. d, at 55 (1998) (noting that in Pennsylvania "the court has reserved to itself risk-utility balancing . . . ."); James Henderson, Jr. & Aaron D. Twerski, Achieving...