Facciponte et al v. Briggs & Stratton Corporation et al
Filing
113
MEMORANDUM and ORDER denying 70 pltfs' Motion in Limine re prior incidents; granting 71 pltfs' Motion in Limine re preclusion of evidence re alleged drug use; denying 72 pltf's Motion in Limine re pltfs' negligence; granting 73 pltfs' Motion in Limine re precluding evidence of charges of DUI/ retail theft of pltfs; denying dfts' 74 76 78 Motions in Limine re certain expert opinions; Denying dfts' motion to bifurcate trial 82 and dfts' motion in limine re exclusion of evidence re failure to inspect will be discussed at the previously scheduled pretrial conference.Signed by Honorable James M. Munley on 8/29/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SALVATORE FACCIPONTE, JR.,
Individually and as Co-Administrator of
the Estate of Salvatore Facciponte, III, deceased,
DEBORAH P. FACCIPONTE, Individually and
as the Co-Administrator of the Estate of
Salvatore Facciponte, III, deceased,
STEVEN JAY LARSON, Individually and as
Co-Administrator of the Estate of
Andrew Thomas Larson, deceased,
MARY AGNES HIGGINS-LARSON,
Individually and as Co-Administrator of the Estate
of Andrew Thomas Larson, deceased,
MICHAEL F. MCGOVERN, SR., Individually
and as Co-Administrator of the Estate of
Michael F. McGovern, Jr., deceased,
THERESA L. MCGOVERN, Individually and as
Co-Administrator of the Estate of
Michael F. McGovern, Jr., deceased,
MARGARET ANN WATT, Individually and as
Administrator of the Estate of Michael P. Hopkins,
deceased,
Plaintiffs
v.
BRIGGS & STRATTON CORPORATION,
TRUE VALUE COMPANY,
Defendants
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3:09cv1584
(Judge Munley)
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MEMORANDUM
Before the court are motions in limine filed by the parties to this case. Having
been fully briefed, the matters are ripe for disposition.
Background
This cases arises from the death of four young men, Salvatore Facciponte III,
Andrew Larson, Michael McGovern, Jr. and Michael Hopkins, on February 9, 2008.
The young men died after using a portable generator manufactured by Defendant
Briggs & Stratton Corporation to provide electricity in a home. Plaintiffs allege that
the men’s deaths were caused by failings in the design of the generator and
defendants’ failure to warn them about dangers from the generator. These design
failings allegedly caused the young men to be unaware of the dangers of running the
generator in an enclosed space.
After the court denied defendants’ motion for summary judgment, the parties
filed motions in limine in anticipation of the pre-trial conference. The parties then
briefed the issues, bringing the case to its present posture.
Jurisdiction
Plaintiffs and decedents are citizens of Pennsylvania. Defendant Briggs &
Stratton is a Wisconsin Corporation with its principal place of business in that state.
Defendant True Value is a Delaware Corporation with its principal place of business
in Illinois. The amount in controversy exceeds $75,000. The court therefore has
jurisdiction to 28 U.S.C. § 1332. The court is sitting in diversity, and therefore the
substantive law of Pennsylvania shall apply. Chamberlain v. Giampapa, 210 F.3d
154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Discussion
The parties filed various motions. The court will address each in turn.
Plaintiffs’ Motions
2
i. Motion to Preclude Evidence of the Lack of Incidents Involving
Carbon Monoxide Poisoning Injury or Aspyxiation (Doc. 70)
Plaintiffs argue that defendants should be excluded from introducing any
evidence of a lack of prior incidents involving carbon monoxide poisoning from the
use of portable generators. They argue that the Third Circuit of Court of Appeals
has ruled that evidence of a lack of prior incidents cannot be introduced without
proper foundation, and that defendants have not provided any evidence that
indicates that a lack of carbon monoxide poisoning occurring indicates that the public
has generally safely used such generators.
Plaintiffs do not claim that the evidence defendants may introduce is irrelevant
or unduly prejudicial. Instead, they point to the holding of the Third Circuit Court of
Appeals in Forrest v. Beloit Corp., 424 F.3d 344 (3d Cir. 2005) and argue that “any
inference that a lack of claims equates to implied safe use is an improper inference.”
In Forrest, the Court of Appeals concluded that the trial court had improperly
permitted the defendant to introduce evidence of an alleged lack of prior accidents
involving a printing machine that had injured the plaintiff. Two employees had
testified that over the long course of their employment they had never seen an
accident similar to the one plaintiff suffered, though workers had for years used the
machine in the same way plaintiff had. Id. at 353-54. Defense counsel had argued
that the testimony showed that “the only accident we know of, in thirty-six years . . .
was” plaintiff’s. Id. at 354. Plaintiff’s counsel had repeatedly objected that this
3
testimony about prior accidents lacked proper foundation. Id. The defendant’s
former chief engineer had admitted at his deposition that defendant kept no records
relating to safety complaints or prior accidents involving the machine. Id. Still, the
district court allowed such evidence to be introduced.
The Court of Appeals noted that “in federal court the admissibility of evidence
concerning an absence of prior accidents is governed by federal law” and “turns on
the facts and circumstances of each case.” Id. at 358. In such cases, “[t]estimony
concerning an alleged absence of prior accidents will usually satisfy the relevance
threshold established by [Federal Rule of Evidence] 402.” Such evidence does not
allow a plaintiff to interrogate the circumstances and determine why an accident did
not occur. “[B]y its very nature,” then, that evidence “raises significant concerns
regarding unfair prejudice to the plaintiff, and these concerns are heightened in
product liability cases arising under Pennsylvania law.” Id. Federal Rule of
Evidence 403 requires a district court to “balance the probative value of such
evidence against its likely prejudicial effect, but the evidence may not be excluded
unless the unfair prejudice created by admitting the evidence would substantially
outweigh its probative value.” Id. Introducing such evidence, therefore, requires a
showing that “(a) a significant number of substantially identical products have been
used in similar circumstances over a period of time; (b) the witness would likely be
aware of prior accidents involving these products; and (3) to the witness’s
knowledge, no such prior accidents have occurred.” Id. at 355-56.
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The court will deny the motion without prejudice to plaintiffs raising it again at
an appropriate time. This case is about whether defendants manufactured an
unreasonably dangerous product that caused the young men’s deaths. Whether
other deaths have been associated with the product, therefore, has a “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,” and is
relevant. FED. R. EVID. 401. Whether that evidence is unduly prejudicial, and
therefore inadmissible, will be determined by whether defendants can lay a proper
foundation, as explained above. See FED. R. EVID. 403 (establishing that “[a]lthough
relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”).
Plaintiffs have not to this point explained why defendants cannot lay a proper
foundation for this evidence. If they cannot do so at trial, however, plaintiffs may
renew their motion.
ii. Motion to Preclude Evidence of Alleged Marijuana, Drugs,
Alleged Drug Paraphernalia, or Alleged Drug Usage by Plaintiffs’
Decedents
Defendants seek to exclude any evidence of marijuana or drug paraphernalia
allegedly found at the scene of the accident by investigators. They argue that no
evidence exists to indicate that any of the decedents used marijuana, or that there
was even marijuana on the scene. Police investigators reported finding “suspected”
5
marijuana on the scene, but they did not test any of the substances found. Drug
tests done on the decedents did not test positive for marijuana. Because there is no
evidence indicating that any of the defendants consumed marijuana on the night in
question, plaintiffs argue that the evidence is irrelevant, and if relevant, prejudicial.
Defendants argue that circumstantial evidence exists to indicate that the decedents
smoked marijuana on the night in question. One of the decedents had a history of
marijuana use, they point out, marijuana pipes were found near the decedents’
bodies, a marijuana grinder was found in the same area, and Decedent Salvatore
Facciponte, Jr., had a foamy substance coming out of his mouth that a police officer
surmised could have been the result of ingesting marijuana. Moreover, the evidence
is relevant, defendants claim, because at issue are the judgments decedents made
on the night they died. If they were under the influence of drugs, they may not have
been capable of heeding the warnings on the generator that are here at issue.
At issue here is whether evidence of intoxication is admissible in this case.
“[T]he well-settled law of this Commonwealth is that where recklessness or
carelessness is at issue, proof of intoxication is at issue, proof of intoxication is
relevant, but the mere fact of consuming alcohol is inadmissable as unfairly
prejudicial, unless it reasonably establishes intoxication.” Locke v. Claypool, 627
A.2d 801, 803 (Pa. Super. Ct. 1993) (quoting Whyte v. Robinson, 617 A. 2d 380, 383
(Pa. Super. Ct. 1992)); see also, Critzer v. Donovan, 137 A. 665, 666 (Pa. 1927)
(precluding testimony that a driver’s breath smelled of alcohol after an accident
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because “[t]here was no allegation or proof of intoxication, nor was there any
evidence of conduct or appearance from which a reasonable inference could be
drawn that the man was intoxicated” beyond the statement on order. “[T]his was not
a sufficient basis to justify the admission of the witness’ conclusion that the person in
question was intoxicated.”). Courts have come to this conclusion because “while
proof of intoxication is relevant where reckless or careless driving of an automobile is
the matter at issue, the mere fact of drinking intoxicating liquor is not admissible,
being unfairly prejudicial, unless it reasonably establishes a degree of intoxication
which proves unfitness to drive.” Fisher v. Dye, 125 A.2d 472, 476 (Pa. 1956). The
standards articulated in Pennsylvania cases, based as they are on weighing the
balance between relevance and prejudice, apply in federal court. Rovegno v.
Geppert Bros., Inc., 677 F.2d 327, 329 (3d Cir. 1982). Courts have applied the
same rule to the consumption of marijuana: “where it cannot be established that the
use of marijuana rendered a driver unfit to drive or impaired his ability to drive safely,
the use of marijuana is inadmissible to prove recklessness or carelessness.”
Hawthorne v. Dravo Corp., 508 A.2d 298, 303 (Pa. Super. Ct. 1986).
The court will grant the plaintiffs’ motion on this point. In this case, there is
circumstantial evidence by which a jury could conclude that at least some of the
young men at some point on the night in question ingested marijuana. That
evidence includes police reports that indicate drugs were found near the decedents’
bodies, the presence of marijuana pipes, and an expert report that speculates that a
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proper test would have revealed the presence of drugs in the young men’s bodies.
Still, even assuming that a jury could reasonably conclude that the young men
smoked marijuana that evening, there is no evidence beyond mere speculation to
indicate how much marijuana they smoked, when they smoked it, or how the drug
influenced their behavior. There is no evidence to indicate that they were
intoxicated when they set up the generator, however, and thus no evidence which
would allow admission of the evidence of marijuana. See Locke, 627 A.2d at 803-4
(finding that evidence that plaintiff smelled of alcohol, a blood test indicating a blood
alcohol content of .06% and an expert report that “extrapolated the test results and
concluded that because Locke was a minor, he would have an exaggerated reaction
to alcohol” was not enough to establish intoxication and permit evidence of alcohol
consumption.).
This case is similar to Pennington v. King, 2009 U.S. Dist. LEXIS 12779, No.
07-4016 (E.D. Pa. Feb. 19, 2009). In that case, the plaintiffs sued the operator of a
tractor trailer whose vehicle collided with an SUV the decedent was driving. Id. at *3.
They alleged that the defendant had operated his vehicle while under the influence
of marijuana, and was thus liable for negligence, recklessness and punitive
damages. Id. at *3-4. The defendant spoke with law enforcement officials and an
eyewitness after the accident, and none of them reported that he exhibited any signs
of intoxication or impairment. Id. at *7. At the same time, plaintiffs produced the
report of a toxicology expert who concluded that if the defendant showed signs of
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impairment while driving, his smoking of marijuana could be blamed for that
impairment. Id. at *6. The court granted the defendant’s motion for summary
judgment on plaintiffs’ claim for punitive damages, even though under Pennsylvania
law driving while intoxicated “‘may under certain circumstances be deemed
‘outrageous conduct’ and a ‘reckless indifference to the interests of others’ sufficient
to allow the imposition of punitive damages.’” Id. at *12 (quoting Focht v. Rabada,
268 A.2d 157, 160 (Pa. Super. Ct. 1970)).
The court found plaintiffs had not produced sufficient evidence of intoxication,
since in Pennsylvania “for evidence of elevated blood alcohol to be admissible, it
must be supplemented by other evidence of intoxicated behavior.” Id. at *13. The
only evidence of intoxication were “the results of the toxicology screen and
[defendant’s] admission that he smoked marijuana on the Saturday evening prior to
this Monday morning accident.” Id. *17. While the defendant had been speeding
and drove in an otherwise “erratic” fashion, that evidence was not sufficient “to
introduce evidence of Mr. King’s marijuana use at trial.” Id. at *18. The court also
rejected the expert report provided by plaintiffs, finding it “weak, speculative, and
replete with qualifiers.” Id. at *20. The report did “not assist Plaintiffs in their attempt
to offer ‘other evidence.’ of impairment.” Id.
The court therefore refused to
consider defendant’s prior marijuana use “and his alleged resulting impairment.” Id.
at *20-21.
Here, the defendants have not produced any evidence that the decedents
9
were actually intoxicated at the time they decided to run the generator in the
vestibule. The mere presence of marijuana–which the plaintiffs point out was never
tested and confirmed to be the drug–near the bodies is not evidence of consumption
or impairment. Defendants seek to introduce such evidence to argue that decedents
were impaired an incapable of following warnings about generator use. Introducing
such testimony would encourage to jury to speculate about impairment and would be
unfairly prejudicial, since there is no evidence that the decedents were actually
impaired. As such, the court will grant the motion and exclude the evidence.
iii. Motion to Preclude Evidence of Plaintiffs’ Negligence or
Negligence of Plaintiffs’ Decedents in Connection with the Subject
Portable Gasoline-Powered Generator
Plaintiffs seek an order from the court precluding the introduction of any
references to negligence by the plaintiffs or the decedents, particularly Andrew
Larson or Salvatore Facciponte, III. Plaintiffs argue that this court has concluded
that no evidence establishes who placed the generator inside the home, and thus
the expert’s conclusion that no injury would have occurred if the decedents had not
ignored the warnings offered by plaintiffs or those affixed to the label on the
generator has no factual basis. Defendants respond by arguing that they have pled
comparative negligence and causation as affirmative defenses, and nothing in the
court’s summary judgment opinion precludes introduction of such evidence.
The court will deny this motion. In ruling on summary judgment in the third10
party complaint, the court found that no evidence existed by which a jury could
conclude which of the decedents placed the generator in the room where
investigators found it. The court did not conclude that there was no evidence by
which a jury could find that the decedents had ignored warnings about where to run
the generator. Indeed, the court explicitly held that the defendants could raise the
issue of the plaintiffs’ and their decedents’ negligence at trial. (See Doc. 66 at 29).
Moreover, the issue in this case is, in part, whether the warnings affixed to the
generator were adequate. The portion of the expert report about which plaintiffs
complain addresses the adequacy of the warnings, concluding that they were
adequate and that the deaths in this case were not the result of the manufacturers’
negligence, but the decedents’. Such information is not barred by this courts’ earlier
opinion, the only grounds upon which the plaintiffs seek preclusion.
iv. Evidence of Plaintiff Steven Larson’s Previous DUI Convictions
and Decedent Andrew Larson’s Retail Theft Conviction
Plaintiffs argue that defendants should be precluded from introducing
evidence of two previous DUI convictions by Plaintiff Steven Larson. According to
the plaintiffs, those convictions resulted in a three-month license suspension in 2005
and a year-long license suspension in 2006. Larson apparently pled guilty to both
offenses. There is evidence of a police report naming Decedent Andrew Larson on
a count of retail theft, though plaintiffs claim that Andrew Larson’s father cannot
recall a conviction against his son. Steven Larson admits, however, that he had paid
11
a fine in connection with this charge. Plaintiffs argue that this evidence is not
relevant. Even if the evidence were relevant, they insist that introduction would be
unduly prejudicial and not admissible under any of the other principles laid out in the
Federal Rules of Evidence. Defendants respond by arguing that the evidence is
relevant and not unduly prejudicial. Steven Larson’s DUI conviction helps explain
his state of mind in 2005, when he purchased the generator here in question. His
2006 conviction is admissible under Federal Rule of Evidence 609, as the crime was
punishable by more than one year in prison. Andrew Larson’s conviction is
admissible as it is relevant to his claim for lost wages.
The court will grant the plaintiffs’ motion with respect to Steven Larson’s 2005
conviction. Federal Rule of Evidence 608(b) provides that “[s]pecific instances of the
conduct of a witness, for the purpose of attacking or supporting the witness’
character for truthfulness, other than conviction of a crime as provided in rule 609,
may not be proved by extrinsic evidence.” FED R. EVID. 608(b). A party may, at the
court’s discretion, inquire into such instances “on cross-examination of the witness
(1) concerning the witness’ character for truthfulness or untruthfulness.” FED. R.
EVID. 608(b)(1). The defendants do not contend that Steven Larson’s 2005
conviction for drunken driving is admissible through Rule 609. Instead, they contend
that the evidence is relevant on completely different grounds: at issue in this case is
Larson’s claim that there was no warning label affixed to the generator in question
when he purchased the machine in 2005. If, defendants claim, Larson was drinking
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so heavily in 2005 that he was convicted of a DUI, his memory of the purchase of the
generator is probably faulty. The court rejects this argument. Defendants do not
argue that Larson 2005 conviction is evidence by which the jury could evaluate
Larson’s character for truthfulness; they instead argue that introduction of the
evidence would allow jurors to judge the quality of Larson’s memory. Here,
however, no evidence connects the date of the generator purchase with the date of
Larson’s DUI arrest, and the introduction of such evidence seems clearly calculated
to invite the jury to decide the case based on Steven Larson’s character and past
conduct, rather than the relevant factual disputes. In addition, evidence of a single
DUI conviction is not evidence of habitual drunkenness so severe that a memory
lapse would occur.
With respect to Larson’s 2006 conviction, defendants argue that Rule 609
applies. Under that rule, “evidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an accused has been convicted
of such a crime shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial affect to the accused.” FED. R. EVID.
609(a)(1).
The court finds that the probative value of admitting this conviction does not
outweigh the prejudicial affect of its introduction. As explained above, defendants’
13
purpose for admitting the evidence is to question Larson’s ability to recall the
condition of the generator when he purchased it. Defendants can question Larson
about his ability to remember events from the period–and even, with proper
foundation, whether his drinking clouded his memory–when he purchased the
generator without referencing an unrelated DUI conviction that does not bear on
Larson’s capacity for truthfulness or on the events in question. Introduction of such
evidence would serve only to unfairly prejudice the plaintiffs. The court will therefore
grant the motion.
Plaintiffs also seek to preclude evidence of Andrew Larson’s conviction for
retail theft. Federal Rule of Evidence 403 provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” FED. R. EVID. 403(b). Here, defendants argue that
the evidence will not be used as improper character evidence, but as a means to
challenge the plaintiffs’ expert’s claims about Andrew Larson’s future earning
potential. They insist that a conviction for retail theft would undermine the vocational
expert’s claims of Andrew Larson’s earning potential, particularly in fields like
computer security.
The court will grant the motion on these grounds too. Pocono Township
Police apparently arrested decedent Andrew Larson on November 29, 2007,
charging him with one count of retail theft. (See Exh. B to Defendants’ Brief in
Opposition to Plaintiffs’ Motion in Limine (Doc. 104)). On December 7, 2007, he pled
14
guilty to the charge and paid fines. (Id.). The evidence may be marginally relevant
to plaintiffs’ claims for damages, though the charge was a minor one, disposed of
quickly, and did not amount to any major penalty. Whatever relevance that minor
court appearance has to Andrew Larson’s future earning potentially, however, is
substantially outweighed by the prejudice that evidence of such conviction would
produce. Indeed, conviction of a single minor retail theft bears such little relation to
future earnings that introduction of the evidence would seem more useful as
evidence of character, and thus inadmissible.
B. Defendants’ Motions
Defendants have likewise filed a number of motions in limine. The court will
address each in turn.
I. Motion to Exclude Certain Opinions of Rosalyn Pierce
Defendants first seek to exclude portions of the opinions of Rosayln Pierce, a
vocational expert employed by plaintiffs to provide evidence of lost future earnings
for the decedents. They argue that Pierce’s opinions are not based on reliable
methodology, not sufficiently supported but merely speculative, run contrary to the
facts of the case and are not held with the requisite degree of professional certainty.
As such, defendants contend that the court should preclude Pierce’s opinion on the
decedents’ future occupations and their future earning capacities.
Federal Rule of Evidence 702 provides that “a witness qualified as an expert
by knowledge, skill, experience, training or education” may provide opinion testimony
15
“if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” FED. R. EVID. 702. Courts
have described the function of the district court in determining whether to admit
expert testimony as a “gatekeeping” one. The trial judge has “the task of ensuring
that an expert’s testimony both rests on a reliable foundation and is relevant to the
task at hand.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 598
(1993). Thus, “[t]he objective of that requirement is to ensure the reliability and
relevancy of expert testimony. It is to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in a particular field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999).
Defendants do not challenge Pierce’s qualifications to testify as a vocational
expert. Nor could they. Pierce’s resume discloses that received a BA and MA in
rehabilitation counseling and has continued to receive additional education through
accredited training programs in the 35 years since her graduation. (See Exh. A to
Plaintiffs’ Brief in Opposition). Pierce has numerous certifications and accreditations
in vocational fields. (Id.). For more than thirty years, Pierce has worked as an
instructor and practitioner in rehabilitative and vocational training. (Id.). She has
served as a vocational expert in the Officer of Hearings and Appeals for the
16
Department of Health and Human Services for twenty-five years. (Id.). Pierce has
lectured at numerous professional conferences related to vocational trainings. (Id.).
Pierce therefore possesses the requisite skill, knowledge and experience to serve as
an expert on decedents’ vocational possibilities.
Defendants’ quarrel with Pierce, therefore, is not with her qualifications, but
with the bases of her opinion. They argue that Pierce’s conclusions are not
supported by the evidence in the case, and are instead merely speculation based on
faulty assumptions. The court finds that the data supports Pierce’s report to a
degree sufficient to allow a jury to determine how persuasive her claims are. Pierce
consulted numerous sources, like school and medical records and the deposition
testimony of those who knew the decedents and their vocational aspirations.
Defendants dispute how realistic these claims are, but such disputes are best left to
the jury. Since “[t]he grounds for an expert’s opinion merely have to be good, they
do not have to be perfect,” the court concludes that the evidence is admissible, even
though subject to vigorous challenge by the plaintiffs. In re Paoli R.R. Yard PCB
Litigation, 35 F.3d 717, 744 (3d Cir. 1994). As the Third Circuit Court of Appeals has
noted, “A judge frequently should find an expert’s methodology helpful even when
the judge thinks that the expert’s technique has flaws sufficient to render the
conclusions inaccurate. He or she will often still believe that hearing the expert’s
testimony and assessing its flaws was an important part of assessing what
conclusion was correct and may certainly still believe that a jury attempting to reach
17
an accurate result should consider the evidence.” Id. at 745.
Because defendants’ criticisms of Pierce’s report are best left for the jury to
decide, the court will deny the motion on this point.
ii. Expert Opinions of David G. Penney
The defendants likewise seek to exclude portions of the expert opinion of
David G. Penney, plaintiffs’ expert on carbon monoxide poisoning and the adequacy
of the warnings on the generator. They argue that Penney’s opinions in question are
not based on any reliable methodology or a scientific basis, and are thus
unsupported. Defendants argue that Penney has no expertise in such warnings and
is thus unqualified to offer opinions on their adequacy. In addition, his testimony
would be cumulative of two others of plaintiffs’ qualified experts, Ezra Krendel and
Gary Sheesley.
Defendants do not dispute that Dr. Penney, a toxicologist with decades of
experience in researching the effects of carbon monoxide on animals and humans,
with hundreds of publications and presentations to scientific audience on the subject,
is qualified by experience and training to render an opinion in the area of the effects
of carbon monoxide on the decedents in this case. The court agrees that Dr.
Penney is qualified on these matters. Defendants urge the court to find that
Penney’s conclusions about the amount of suffering decedents experienced,
whether they were awake during their poisoning, and the time of their deaths are
insufficiently supported by his sources. Defendants’ complaints are more with the
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adequacy of Penney’s conclusions than with the sources for them. The court finds
that Penney’s conclusions, based on his examination of the scene and investigators’
reports, as well as his extensive background and study in carbon monoxide
poisoning, are sufficiently based on facts and data for a jury to consider. Defendants
may make their arguments about the persuasiveness of his claims to the jury. The
motion will be denied on this point.
Defendants also argue that Penney’s conclusions on the inadequacy of the
warnings in this case should be suppressed. They argue that he lacks the requisite
knowledge of human factors and design to allow him to offer an expert opinion on
the warnings. Penney is clearly an expert in the dangers of carbon monoxide. His
expertise allows him to opine whether a warning, either affixed to the generator or
stated in a handbook, effectively represents the dangers presented by exposure to
carbon monoxide. Defendants’ arguments about whether Penney’s conclusions
about how the warnings would be received go more to the persuasiveness of his
report than to the admissibility of the evidence. As such, the court will deny the
motion on these grounds as well.
iii. Expert Testimony of Gary Sheesley
Defendants also seek to preclude portions of the expert testimony of Gary
Sheesley. They argue that he is not a human factors expert, and is thus unqualified
to offer an expert opinion on the clarity, efficacy, size and placement of the warnings
provided by the company about the generator here in question. Moreover,
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defendants contend, Sheesley’s testimony is cummulative of other testimony in the
case and should be precluded on those grounds as well. Plaintiffs respond that
Sheesley’s report is written from the perspective of his expertise, mechanical
engineering, and that the observations and opinions about which defendants
complain fall within the scope of Sheesley’s acknowledged expertise.
The court will deny the motion. The areas of Sheesley’s report about which
defendants complain address the adequacy and placement of warning labels on the
subject generator. Sheesley opines that the position of the warning label on the
machine was dangerous, since it was difficult to see and read for most users.
Moreover, this label and another label “did not effectively communicate the danger of
the carbon monoxide and what actions were required to avoid that danger.”
(Sheesley Report, Exh. B to Plaintiffs’ Brief in Opposition to Defendants’ Motion for
Summary Judgment (Doc. 55) at 15). Defendants’ complaint is that Sheesley’s
qualifications do not provide him with the expert training and knowledge necessary
to make these observations. The court disagrees. Sheesley observed the generator
and saw where the warning sticker was located, concluding that an average user
might overlook it. This is a simple observation that can be challenged by looking at
the generator. Sheesely’s opinion, expressed twice, that the label does not
effectively communicate the danger of carbon monoxide, is made in the context of
his report’s discussion of those dangers and why warnings about them must be
explicit. His report comments on the lack of information in the warning and the
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dangers left unexpressed by that warning. As an expert in such machines and the
dangers they cause, Sheesley has the qualifications and training to describe the
essential contents of the warning label. Defendants are of course free to attack
these opinions and point out the limited area of Sheesley’s expertise on human
factors during cross examination.
vi. Motion to Exclude Evidence of True Value Company’s Failure
to Inspect the Subject Generator
Defendants seek to exclude any evidence of Defendant True Value’s failure to
inspect the generator in question before selling that generator to Steven Larson.
The argue that plaintiffs should be prevented from “mentioning, relying on, or offering
evidence of True Value’s alleged failure to inspect or test the generator at the trial of
this matter.” Defendants argue that under Pennsylvania law True Value had no duty
to inspect or test the product and therefore cannot be liable for failing to due so. As
a result, they insist, the evidence is not relevant to the negligence claims against
them. Plaintiffs respond that defendants knew of the product’s potential danger and
therefore had a duty to inspect the generator before selling it.
The court will address this motion and the basis for it at the pre-trial
conference. The motion goes more to the sufficiency of the evidence for plaintiffs’
negligence claim against True Value than to the admissibility of the evidence in
question.
v. Motion to Bifurcate the Trial
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Defendants also seek to bifurcate the trial between the liability and damages
portions. They argue that the witnesses needed to prove liability are largely
separate from those necessary to evaluate damages and contend that allowing a
combined trial on both liability and damages will unfairly prejudice the jury.
Rule 42 of the Federal Rules of Civil Procedure provides for separate trials as
follows:
For convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one
or more separate issues, claims, crossclaims,
counterclaims, or third-party claims. . .
FED. R. CIV. P. 42.
The decision to bifurcate is left to the trial court’s discretion and must be decided on
a case by case basis. Idzojtic v. Pennsylvania R.R. Co., 456 F.2d 1228, 1230 (3d
Cir.1972). In exercising such discretion, the court “must weigh the various
considerations of convenience, prejudice to the parties, expedition, and economy of
resources.” Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22 (3d Cir. 1984).
The moving party bears the burden of establishing that bifurcation is appropriate.
See Innovative Office Prod., Inc. v. Spaceco, Inc., No. 05-04037, 2006 WL 1340865
*1 (E.D. Pa. May 15, 2006); 9A WRIGHT & MILLER, FED. PRAC. AND PRO. CIV. 2D §
2388.
The court concludes that bifurcation of the trial is inappropriate. Defendants’
position is that the scope of the injuries plaintiffs and their decedents suffered could
create prejudice against defendants and prevent the jurors from judging the facts of
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the case impartially. The court, defendants argue, should separate the trial on
liability from that on damages. The court finds that this procedure would create a
needless waste of court time and resources. Every civil trial contains questions of
liability and damages, and the decision whether to bifurcate the trial must be based
on the particular facts of the case. See Lis v. Robert Packer Hospital, 579 F.2d 819,
824 (3d Cir. 1978) (finding that “the decision [to bifurcate] must be made by a trial
judge only as a result of an informed exercise of discretion on the merits of the
case.”). At issue in this case is a determination of products liability and failure-towarn. That task is not so complicated that a jury needs to consider the issue of
liability separately in a separate proceeding before addressing damages. See, e.g.,
Barr Laboratories, Inc. v. Abbott Laboratories, 978 F.2d 98, 115 (3d Cir. 1992)
(upholding trial court’s decision to bifurcate an anti-trust trial so that the jury could
first determine “the proper definition of the relevant product market” since the court
concluded “that bifurcation would prove beneficial by enhancing juror comprehension
of the complex issues presented.”). Likewise, the extent and nature of the damages
are not so complicated that a separate proceeding would be necessary or advisable
to avoid jury confusion. The jury will not be confused by the task of assigning fault
for the accident and then, if appropriate, determining the extent of plaintiff’s injuries
based on the testimony from several experts.
The court also finds that defendants would not be subject to undue prejudice
because of the extensive damages suffered by the plaintiffs and decedents in this
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case. If a jury accepts plaintiffs’ theory of the case, they will be forced to conclude
that decedents passed away due to the defendants’ negligence. To accept
defendants’ position that the extensive liability to which they are exposed inevitably
creates prejudice and entitles them to a separate trial on liability and damages would
be to allow every defendant facing large liability, especially in survival actions, to
receive a bifurcated trial. The court does not accept the position that a potentially
large verdict creates unfair prejudice and the impossibility of a fair trial. Here, the
court is confident that a proper explanation of the law will cause the jurors to decide
liability based on the facts of the case, not based on sympathy for the plaintiffs’
losses.
The court is confident that it can construct a jury charge and verdict slip that
will prevent prejudice to the defendant. The court presumes that a jury follows
instructions, even in difficult cases, and finds that proper instructions will prevent any
prejudicial conclusions from the jury. See, e.g., Thabault v. Chait, 541 F.3d 512, 530
(3d Cir. 2008) (upholding decision not to bifurcate trial in part because the court’s
jury instructions prevented prejudice against the defendant). The court will therefore
deny the motion to bifurcate the trial.
Conclusion
For the reasons stated above, the court will grant the parties’ motions in limine
in part and deny them in part. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SALVATORE FACCIPONTE, JR.,
Individually and as Co-Administrator of
the Estate of Salvatore Facciponte, III, deceased,
DEBORAH P. FACCIPONTE, Individually and
as the Co-Administrator of the Estate of
Salvatore Facciponte, III, deceased,
STEVEN JAY LARSON, Individually and as
Co-Administrator of the Estate of
Andrew Thomas Larson, deceased,
MARY AGNES HIGGINS-LARSON,
Individually and as Co-Administrator of the Estate
of Andrew Thomas Larson, deceased,
MICHAEL F. MCGOVERN, SR., Individually
and as Co-Administrator of the Estate of
Michael F. McGovern, Jr., deceased,
THERESA L. MCGOVERN, Individually and as
Co-Administrator of the Estate of
Michael F. McGovern, Jr., deceased,
MARGARET ANN WATT, Individually and as
Administrator of the Estate of Michael P. Hopkins,
deceased,
Plaintiffs
v.
BRIGGS & STRATTON CORPORATION,
TRUE VALUE COMPANY,
Defendants
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3:09cv1584
(Judge Munley)
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 29th day of August 2011, the parties’ motions in limine
are GRANTED IN PART and DENIED IN PART as follows:
1. The plaintiffs’ motion in limine to preclude evidence of absence of prior
25
incidents of carbon monoxide injuries and deaths related to portable generators
(Doc. 70) is DENIED WITHOUT PREJUDICE;
2. The plaintiffs’ motion in limine to preclude evidence of alleged marijuana,
drugs, drug paraphernalia or alleged drug usage (Doc. 71) is hereby GRANTED;
3. The plaintiffs’ motion in limine to preclude evidence of plaintiffs’ negligence
or negligence of decedents (Doc. 72) is hereby DENIED;
4. The plaintiffs’ motion in limine to preclude evidence of DUI involving Steven
Larson and alleged retail theft involving Andrew Larson (Doc. 73) is hereby
GRANTED;
5. The defendants’ motion in limine to exclude certain opinions of Rosalyn
Pierce (Doc. 74) is hereby DENIED;
6. The defendants’ motion in limine to exclude certain opinions of David G.
Penney (Doc. 76) is hereby DENIED;
7. The defendants’ motion in limine to exclude certain opinions of Gary
Sheesley (Doc. 78) is hereby DENIED;
8. The defendants’ motion in limine to exclude evidence of True Value
Company’s failure to inspect the subject generator will be discussed at the pre-trial
conference; and
9. The defendants’ motion to bifurcate the trial (Doc. 82) is hereby DENIED.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT
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