Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc.

• Citation: 502 A.2d 210,348 Pa.Super. 285
• Decision Date: 13 December 1985
• Docket Number: WILKES-BARR,WILKES-BARRE,INC
• Parties: IRON & WIRE WORKS, INC., Appellant, v. PARGAS OFv. Edward CALADIE, Appellee. 02469 Phila. 1984.
• Court: Superior Court of Pennsylvania

Page 210

502 A.2d 210

348 Pa.Super. 285

WILKES-BARRE IRON & WIRE WORKS, INC., Appellant, v. PARGAS OF WILKES-BARRE, INC. v. Edward CALADIE, Appellee.

02469 Phila. 1984.

Superior Court of Pennsylvania.

Argued March 25, 1985.

Filed Dec. 13, 1985.

Miles A. Jellinek, Philadelphia, for appellant.

Arthur Silverblatt, Sr., Wilkes-Barre, for appellee.

Before BECK, POPOVICH and TROMMER ^*, JJ.

BECK, Judge:

This is an appeal from an order granting a new trial in a products liability action. Plaintiff/appellant Wilkes-Barre Iron & Wire Works' plant sustained severe damage when a liquid propane cylinder supplied by defendant/appellee Pargas of Wilkes-Barre exploded. While an employee of appellant was using the cylinder, it slipped and fell. The valve on the cylinder broke off in the fall, and propane gas leaking from the damaged cylinder caused an explosion.

Appellant's suit against Pargas sounded in both negligence and strict liability under section 402A of the Restatement (Second) of Torts (1965). The negligence claim was non-suited at the close of appellant's case. The essence of appellant's strict liability claim was that the cylinder was defectively designed because it lacked a protective collar around the valve which would have shielded the valve from the impact received in the fall.

The jury returned a verdict in favor of appellant, but the trial court granted appellee's motion for a new trial, holding that crucial testimony of appellant's expert witness should have been excluded because it exceeded the "fair scope" of his pretrial report under Pa.R.C.P. No. 4003.5(c). This is the principal issue before us on appeal. For the reasons stated below we affirm the order granting a new trial.

The decision whether to grant or deny a new trial is within the sound discretion of the trial court. Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). Although appellant cites us to a statement in Hilbert v. Katz, 309 Pa.Super. 466, 471, 455 A.2d 704, 706 (1983), that "an appellate court may be more exacting in reviewing a new trial grant than a new trial denial," because the grant of a new trial interferes more with the function of the jury, the context of that statement was strictly with respect to new trials granted on the ground that the verdict was against the weight of the evidence. Elsewhere in the Hilbert opinion, we specifically state with respect to new trials awarded for other reasons, including as in the instant case erroneous rulings on the admission of evidence, the trial court has "broader discretion." Therefore the appropriate standard is still whether the trial court has abused its discretion.

We hold that the trial court did not abuse its discretion in ruling that a new trial was required because the testimony of appellant's expert witness exceeded the fair scope of his pretrial report. Discovery of information concerning expert testimony is governed by Pa.R.C.P. No. 4003.5. Subsection (a)(1)(b) of the Rule states in pertinent part:

A party may through interrogatories require ... the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Subsection (c) of the Rule then defines the permissible scope of the expert's trial testimony:

To the extent that the facts known or opinion held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.

In the instant case, appellant retained Mr. Frederic Blum, a mechanical engineer, to testify regarding the cause of the explosion with particular reference to the design of the propane tank. In response to interrogatories served by Pargas, appellant Wilkes-Barre Iron & Wire Works disclosed Mr. Blum's identity and attached his report which read as follows:

National Fire Protection Association/ANSI Standard No. 58, concerning Storage and Handling of Liquified Petroleum Gases (1976) states in Paragraph 2130 that:

Portable containers of 1,000 pounds (nominal 120 gallons) water capacity or less shall incorporate protection against physical damage to container appurtenances and immediate connections to these while in transit, storage, while being moved into position for use, and when in use ... by (means of): (b) A ventilated cap or collar.... Construction (of the cap or collar) shall be such that the force of a blow will not be transmitted to the valve.

The subject tank had no such protective collar, although many similar tanks provided by Pargas did. If the subject tank had been provided with such a collar, it is clear the accident would not have occurred.

The falling tank would have struck the object with the collar instead of the valve. The valve would have experienced only a low-acceleration force due to inertia instead of the high-acceleration shock of direct impact. As a result, the valve would not have broken off. It is just such accidents that protective collars are designed to prevent.

C. CONCLUSIONS

(1) The tank's shut-off valve broke off due to impact with a foreign object, as reported.

(2) The accident would not have occurred if the tank had been fitted with a protective collar around its shut-off valve as required by NFPA/ANSI regulations. The lack of a collar represents a clear safety violation on the part of the supplier, Pargas.

Record at 71a, 72a, 76a (emphasis added).

Significantly, Mr. Blum's report was silent as to the means for attaching the protective collar to the cylinder. The NFPA/ANSI standards cited do not state that the collar must be welded on. At trial, however, Blum specifically testified that the cylinder was defective because it lacked a permanently welded-on protective collar. Blum stated that a cylinder supplied only with a detachable collar would not be completely safe because the collar could be accidentally or deliberately removed, leaving the valve unprotected.

The trial court allowed this testimony over Pargas' objection. Pargas argues that Blum's trial testimony exceeded the fair scope of his report because the report did not put Pargas on notice that only a permanently attached collar would have been sufficient, in Blum's opinion, to discharge Pargas' duty to produce a safe product.

We agree. Both parties cite the same line of cases construing Rule 4003.5(c) and similar local rules, each side claiming that the cases support its position. See, e.g., Augustine v. Delgado, 332 Pa.Super. 194, 481 A.2d 319 (1984); Klyman v. SEPTA, 331 Pa.Super. 172, 480 A.2d 299 (1984); Mapp v. Dube, 330 Pa.Super. 284, 479 A.2d 553 (1984); Martin v. Johns-Manville Corp., 322 Pa.Super. 348, 469 A.2d 655 (1983); Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 452 A.2d 743 (1982).

The experience of this Court as revealed in these cases has been that it is impossible to formulate a hard and fast rule for determining when a particular expert's testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide us is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary's request, "the substance of the facts and opinions to which the expert is expected to testify" is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa.Super. at 199, 481 A.2d at 321 ("Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise"); Martin v. Johns-Manville Corp., 322 Pa.Super. at 358, 469 A.2d at 659 ("[W]e have found experts' reports to be adequate ... when the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness.")

In other words, in deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word "fair." The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.

In the instant case it is clear that appellee Pargas was prejudiced by the discrepancy. The fundamental issue in this products liability action is whether the propane cylinder was in a safe condition when it left appellee's control. Mr. Blum's report simply indicated that it was his opinion that a cylinder lacking a protective collar was defective. Appellee was therefore prepared to defend with evidence that the cylinder in question was equipped with a collar (albeit a removable one) when it was delivered to appellant. This...