Nesbitt v. Sears, Roebuck and Co.

• Citation: 415 F.Supp.2d 530
• Decision Date: 20 October 2005
• Docket Number: No. Civ.A. 03-6747.,Civ.A. 03-6747.
• Parties: Stephen NESBITT, Plaintiff, v. SEARS, ROEBUCK AND CO., et al., Defendants.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

415 F.Supp.2d 530

Stephen NESBITT, Plaintiff, v. SEARS, ROEBUCK AND CO., et al., Defendants.

No. Civ.A. 03-6747.

United States District Court, E.D. Pennsylvania.

October 20, 2005.

COPYRIGHT MATERIAL OMITTED

James A. Keating, Mark J. Lewinter, Anapol Schwartz Weiss Cohan Feldman & Smalley PC, Philadelphia, PA, for Plaintiff.

Johnna Lynn D'Aurora, Warren E. Voter, John Michael Kunsch, Sweeney & Sheehan, PC, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

DAVIS, District Judge.

Presently before the Court are Plaintiffs Motion to Preclude Reference to Plaintiffs Juvenile Conviction and Past Alcohol and Drug Use (Doc. No. 50), Plaintiffs Motion to Preclude Defendants' Expert, Michael L. Gililland ("Gililland"), From Testifying as to Human Factors at Trial (Doc. No. 51), Plaintiffs Motion to Preclude Evidence of or from the Insurance Claims Investigation (Doc. No. 52), Plaintiffs Motion to Preclude Defendants' Expert, Paul A. Cyr ("Cyr"), from Testifying at Trial (Doc. No. 53), Plaintiffs Motion to Preclude Evidence of the Taping Up of the Lower Blade Guard (Doc. No. 54), Plaintiff's Motion to Preclude Evidence of Plaintiff's Own Conduct (Doc. No. 55), Plaintiffs Motion to Preclude Cyr's Supplemental Report from Trial (Doc. No. 74), Defendants' Motion to Preclude Evidence of Other Accidents Involving Radial Arm Saws (Doc. No. 56), Defendant's Motion to Preclude Plaintiffs Exhibits P41, P50, P51, P52, and P82 (Doc. No 57), Defendants' Motion to Preclude Reference to Plaintiffs Exhibits P29-P40, P42-49, and P58-64 (Doc. No. 59), and all responses and reply briefs thereto.

For the following reasons, this Court makes the following rulings. The Court grants defendants' three motions upon the conditions expressed in this opinion. (Doc. No. 56, 57, 59). In addition, the Court grants plaintiffs motion to preclude defendant from referring to plaintiffs juvenile conviction and past alcohol and drug use (Doc. No. 50); grants plaintiff's motion to preclude Michael Gililland from testifying that plaintiff would not have followed additional warnings based upon human factors principles, unless plaintiff first presents evidence that this supplemental warning would have been directed to plaintiff (Doc. No. 51); and grants plaintiffs motion to preclude evidence from the insurance claims investigation to the extent that plaintiffs motion seeks to preclude opinion testimony from George J. Lampman on the issue of the saw's condition during his investigation (Doc. No. 52). The Court denies plaintiffs remaining motions upon the conditions expressed in this opinion. (Doc. No. 53, 54, 55, 74).

I Brief Factual and Procedural History

On January 13, 2003, plaintiff Stephen Nesbitt ("plaintiff') suffered injuries to his left hand during the use of a Craftsman Model 113.1964621 10" radial arm saw (the "saw"). (See Pl. Compl., at ¶ 9). Plaintiff was using the saw during the course of his employment at S & S Packaging ("S & S"). (Id., at ¶ 7). Plaintiff does not remember how the accident occurred, although the parties' experts agree that the available evidence suggests that plaintiff pulled the saw carriage across his hand during a crosscut maneuver on cardboard material. (See Pl. Pre-trial Mem., at 8).

The saw was manufactured by defendant Emersion Electric Company ("Emerson") in March 1995, and was sold by defendant Sears, Roebuck and Company ("Sears") to S & S in that same year. (See Compl., at ¶ 8). An Owner's Manual (the "Manual") accompanied the sale of the saw. (See Pl. Pre-trial Mem., at 8).

The saw came equipped with a Metzger guarding system, which includes, inter alia, an upper blade guard, a lower blade guard, a hold down, a riving knife, and a set of pawls. According to the Manual, the riving knife acts as a partial barrier to the front blade during cross-cutting operations, and the pawls grab into the workpiece surface, helping stop kickback motion from outfeed to infeed side during ripping operations. (See Manual, attached as Ex. A to Pl. Pre-trial Mem., at 6). Although the riving knife and pawls accompanied the sale of the product, both parties agree that the riving knife and pawls were absent from the saw at the time of plaintiffs accident on January 13, 2003. (See Pl. Pre-trial Mem., at 8).¹ A dispute exists as to whether the owner and safety officer of S & S, Bradley Stewart ("Stewart"), failed to install this safety equipment on the saw during its assembly in 1995; or whether this safety equipment was pre-installed and S & S purposefully removed the riving knife and pawls from the saw upon receipt. (See Def. Mot. To Preclude Prior Accidents, at ¶ 12; Pl. Mot. In Opp'n., at ¶ 12).

Although plaintiff's complaint alleged claims of negligence, strict liability, and breach of warranty, plaintiff proceeds solely under a strict liability theory. (See Pl. Pre—Trial Memorandum, Doc. No. 44, at 1, 16-17; Pl. Stipulation, Doc. No. 37). Plaintiff's lone theory of liability is that the saw was defective due to inadequate warnings regarding the safety function of the riving knife and anti-kickback pawls in crosscutting operations. (Id., at 1, 7-9).

II. Discussion

Both plaintiff and defendants have filed an array of motions in limine. In ruling upon these motions, the Court is guided by the following evidentiary rules. First, Federal Rule of Evidence 402 states that "evidence which is not relevant is not admissible." Fed.R.Evid. 402. Relevant evidence is defined as any evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The Supreme Court has characterized this standard as a "liberal one." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Second, even if a piece of evidence is relevant, it may still be inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, waste or time, or needless presentation of cumulative evidence." See Fed.R.Evid. 403. The Third Circuit has defined the phrase "danger of unfair prejudice" as an "undue tendency to suggest decision on an improper basis." Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 188 (3d Cir.1990).

A. Defendants' Motion to Preclude Plaintiff's Exhibits P41, P50, P51, P52, and P82

Defendants seek to preclude plaintiff from offering Exhibits P41, P50, P51, P52, and P82, which pertain to industry standards and Occupational Safety and Health Administration ("OSHA") regulations, at trial for the purpose of establishing that the saw was defective due to a lack of warnings. (See Def. Br., at 5-8). Plaintiff does not oppose defendants' motion, to the extent that defendants themselves are precluded from introducing such evidence of OSHA and ANSI standards at trial. (See Pl. Br., at 2).

It is clear that a manufacturer may not introduce evidence of compliance with industry and OSHA standards to demonstrate the absence of a produce defect. See, e.g., Holloway v. J.B. Systems, Ltd., 609 F.2d 1069, 1073 (3d Cir.1979) (trial judge erred under Pennsylvania law by permitting tank manufacturer to introduce testimony regarding compliance with trade custom in strict liability failure to warn case, as manufacturer's compliance with trade custom was irrelevant to whether product itself was defective); Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590, 594 (1987) (evidence of industry standards inadmissible for purpose of establishing reasonableness of defendant's conduct in making design choice in strict product liability claim); Sheehan v. Cincinnati Shaper Co., 382 Pa.Super. 579, 555 A.2d 1352, 1355 (1989) (evidence of OSHA standards inadmissible in strict liability claim for purpose of showing absence of design defect, as such evidence shifts jury's focus from existence of defect to reasonableness of manufacturer's conduct in not providing safety device for shear). However, in one of the earliest strict liability cases in Pennsylvania jurisprudence, the Pennsylvania Supreme Court held that a plaintiff could introduce evidence of a defendant's non-compliance with industry standards to demonstrate the existence of a product defect. See Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593, 598 (1968) (concluding that jury could infer existence of product defect from manufacturer's failure to comply with design and manufacturing customs of tire industry); 3 West's Pa. Prac., Torts: Law and Advocacy § 9.28 ("Presumably, Forry remains an accurate statement of Pennsylvania law"). Although the Pennsylvania Supreme Court has never retreated expressly from this position, the Court need not address this issue because plaintiff has agreed not to oppose defendant's motion, perhaps for fear that the introduction of such evidence would "open the door" for defendants to introduce evidence of compliance with such standards. See, e.g., Markovich v. Bell Helicopter Textron, Inc., 805 F.Supp. 1231, 1239 (E.D.Pa.1992) (plaintiffs introduction of defendant's noncompliance with industry standards in strict liability suit opens door for defendant to rebut testimony in its case-in-chief). Accordingly, this Court grants defendant's motion, finding that both defendant and plaintiff are precluded from introducing P41, P50, P51, P52, and P82 at trial for the purpose of establishing the existence or absence of a product defect.

B. Defendants' Motion to Preclude Evidence of Other Accidents Involving Radial Arm Saws

Defendants seek to preclude plaintiff from introducing any evidence of previous accidents of defendants' radial arm saws. (See Def. Br., at 9-11). Defendants claim that evidence regarding other accidents is not relevant to the determination of whether the saw is defective and, even if relevant, this evidence should be excluded because its probative...