Vaskas et al v. Motor Truck Equipment - Pittsburgh, Inc. et al

Filing 25

MEMORANDUM re 13 MOTION for Summary Judgment filed by Paccar, Inc., Kenworth Truck Co., 18 First MOTION to Supplement the Record filed by Deanna Vaskas, Robert Vaskas Signed by Honorable A. Richard Caputo on 1/8/13. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT and DEANNA VASKAS,
CIVIL ACTION NO. 3:10-CV-1024

Plaintiffs,
v.
KENWORTH TRUCK CO. and PACCAR,
INC.,

(JUDGE CAPUTO)

Defendants.
MEMORANDUM
Presently before the Court are the Motion for Summary Judgment (Doc. 14) filed by
Defendants PACCAR Inc and Kenworth Truck Company and the Motion to Supplement
(Doc. 18) filed by Plaintiffs Robert and Deanna Vaskas. Plaintiffs brought this action
asserting claims of negligence, strict products liability, breach of warranty, and loss of
consortium against Defendants to recover damages for personal injuries sustained by
Robert Vaskas. (Doc. 1, Ex. A.) Defendants move for summary judgment pursuant to
Federal Rule of Civil Procedure 56(c). Plaintiffs move for this Court to consider an
addendum to their expert’s report in ruling on Defendants’ summary judgment motion. For
the reasons that follow, Plaintiffs’ Motion to Supplement (Doc. 18) is granted and
Defendants’ Motion for Summary Judgment (Doc. 14) is granted in part and denied in part.
I. Background
Defendant Kenworth Truck Company is an unincorporated division of Defendant
PACCAR Inc. (Doc. 14 at 1.) Defendants manufacture and design tractor cabs, including
the Kenworth T800. (Doc. 1, Ex. A at ¶ 8.) On May 19, 2005, Defendants delivered a 2005
Kenworth T800 tractor (“the Kenworth tractor”) to its purchaser, R.C. Moore, Inc. (“R.C.
Moore”). (Doc. 14, Ex. B.) The cab access system on the Kenworth tractor was comprised
of two aluminum steps with rounded edges and a vertical handhold mounted on the right
exterior of the cab. (Peck Dep. at 53–54, 82–83.) The Kenworth tractor did not conform
to its design specifications, as the distance from the tractor’s top step to its bottom step
(21.5 inches) exceeded the distance on the design specifications (19.5 inches). (Id. at 77,

79.) Also, the depth of the tractor’s steps (4.625 inches) did not meet Kenworth’s internal
requirements (4.76 inches) or those of the applicable Federal Motor Vehicle Safety
Standards (at least 5 inches). (Doc. 24, Ex. F at ¶ 2.)
In early June 2007, Plaintiff Robert Vaskas (“Mr. Vaskas”), who had worked as a
truck driver for several trucking companies after receiving his commercial driver’s license
in 1996, became employed by R.C. Moore. (Vaskas Dep. at 50–56, 99–100.) Prior to
working for R.C. Moore, Mr. Vaskas had extensive experience with commercial and
industrial vehicle step systems and different kinds of trucks or tractors. (Id. at 33–39,
50–56, 64, 66–68, 73–74, 76–80, 83–88.) After completing safety training, Mr. Vaskas
began operating the Kenworth tractor as a truck driver for R.C. Moore. (Id. at 101, 104.)
At approximately 10:30 PM on August 21, 2007, toward the beginning of his work shift, Mr.
Vaskas was exiting the cab of the Kenworth tractor with his right hand positioned on the
tractor’s handhold and both of his feet on the top step. (Id. at 134, 144.) As he lowered his
left foot to the bottom step and reached for the handhold with his left hand, his right foot
slipped off the top step, causing him to fall. (Id. at 145–48.) He hit his head on the top step,
lost consciousness, and sustained serious injuries to his neck and back. (Id. at 148–49,
165–66.) At the time of the fall, the tractor’s steps were wet and Mr. Vaskas’ boots were
muddy. (Vaskas Dep. at 134–35, 140–41, 150.) Mr. Vaskas noted that the Kenworth
tractor’s steps were different from those he had usually seen on trucks because they were
grated instead of having sharp, straight lines across. (Id. at 150.)
The Kenworth tractor contained nine warning symbols, but none cautioned drivers
or passengers about hazards associated with accessing the front of the cab. (Peck Dep.
at 47–48, 92, 95.) Defendants also include a safety video and operating manual with each
truck they manufacture. (Id. at 44.) In instructing drivers on the proper way of entering and
exiting the tractor’s cab, the safety video emphasizes the “three points of contact” system,
which requires the driver to have two hands and one foot or two feet and one hand in
contact with the cab access system at all times. (Doc. 14, Ex. I.) The operating manual
specifically warns of the risk of a fall from the cab access system and also cautions that the
2

three points of contact system should be used. (Doc. 14, Ex. H, at 7–8.) It also warns of
the heightened risk of a fall from the cab access system when conditions are wet or muddy.
(Id.) Mr. Vaskas neither viewed the safety video nor the operating manual included with the
Kenworth tractor, nor was he aware of whether the manual was located in the tractor’s glove
box. (Vaskas Dep. at 123.) However, Mr. Vaskas understood that the three points of
contact system was the proper way to enter or exit a truck cab, had received training on the
system (Id. at 60), and was required by R.C. Moore to use the system when navigating
tractor steps (Doc. 14, Ex. G., at 2).
Mr. Vaskas and his wife, Plaintiff Deanna Vaskas, commenced this action in the
Court of Common Pleas of Lackawanna County, Pennsylvania, on August 11, 2009,
alleging negligence, strict products liability, breach of warranty, and loss of consortium
claims against Kenworth. (Doc. 1, Ex. A.) On May 12, 2010, Kenworth successfully
removed the case to this Court on diversity grounds. (Doc. 1.)
This Court entered a Case Management Order on February 27, 2012 (Doc. 7) and
amended the order on April 19, 2012 (Doc. 11). The Amended Case Management Order
placed the case on the January 2013 trial list and required Plaintiffs and Defendants to
comply with the requirements of Federal Rule of Civil Procedure 26(a)(2) with respect to
expert witnesses no later than August 1, 2012 and September 1, 2012, respectively. (Id.
at ¶¶ 1, 4.) Supplemental expert reports were due no later than October 1, 2012, and the
parties were to complete expert discovery by October 15, 2012. (Id. at ¶¶ 2, 4.) The
disclosures required by Federal Rule of Civil Procedure 26(a)(3) were to be made by August
1, 2012, the same day that dispositive motions were due. (Id. at ¶¶ 4–5.)
On August 1, 2012, Plaintiffs disclosed the expert report of Traci K. Campbell, P.E.,
dated May 4, 2009 (the “Campbell Report”). (Doc. 21, Ex. 2). The Campbell Report, which
was six pages long and contained fourteen bullet-point statements of opinions, did not rely
on the record generated during discovery. (Doc. 21 at 2.) That same day, Defendants
filed a Motion for Summary Judgment. (Doc. 13.) In their brief in opposition, filed August
21, 2012, Plaintiffs argued that the opinions in the Campbell Report created genuine issues
3

of material fact. (Doc. 16 at 3–4, 9, 11, 14–16.) Defendants’ reply brief, filed September
4, 2012, argued against the sufficiency of the opinions in the Campbell Report. (Doc. 17
at 2–6.) On September 7, 2012, Plaintiffs requested a supplemental report from Ms.
Campbell, which they both received and served on Defendants on October 1, 2012. (Doc.
24 at 5, Ex. F.)

The thirteen page addendum contained twenty-seven bullet-point

statements of opinion, many of which were not in the Campbell Report. (Doc. 21 at 2.)
On October 30, 2012, Plaintiffs filed their Motion to Supplement (Doc. 18), which
asks this Court to consider the addendum to the Campbell Report in deciding Defendants’
Motion for Summary Judgment. In response, Defendants request that this Court deny
Plaintiffs’ motion and strike the addendum to the Campbell Report, or, alternatively, compel
Plaintiffs to produce Ms. Campbell for deposition and grant Defendants leave to serve
supplemental expert reports on Plaintiffs. (Doc. 21 at 11.) Plaintiffs’ Motion to Supplement
and Defendants’ Motion for Summary Judgment have been fully briefed and are now ripe
for this Court’s review.
II. Discussion
A.

Plaintiffs’ Motion to Supplement (Doc. 18)
Plaintiffs move to have this Court consider the October 1, 2012 addendum to the

expert report of Traci K. Campbell, P.E. in deciding Defendants’ Motion for Summary
Judgment. (Doc. 18 at 1.) Plaintiffs contend that the addendum is critical to this Court’s
resolution of Defendants’ motion because it highlights existing issues of material fact
and refutes Defendants’ position that they are entitled to judgment as a matter of law.
(Doc. 19 at 3.) In response, Defendants argue that the addendum should be struck
pursuant to Federal Rule of Civil Procedure 37(c)(1) because Plaintiffs violated Federal
Rules of Civil Procedure 26(a) and 26(e) by failing to timely disclose the addendum’s
new opinions. (Doc. 21 at 5–10.) Alternatively, Defendants argue that if the Court
allows the addendum, it should compel Plaintiffs to produce Ms. Campbell for
deposition, grant Defendants leave to serve supplemental expert reports on Plaintiffs,
and possibly allow Defendants to address the addendum in additional summary
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judgment briefing.
Defendants specifically contend that Plaintiffs violated Federal Rules of Civil
Procedure 26(a)(2) and 26(e)(2) by submitting the addendum, which is more than twice
as long as the Campbell Report, in an untimely manner and failing to disclose its
additional opinions. (Doc. 21 at 6.) Plaintiffs served the addendum on October 1, 2012
– two months after the Campbell Report and several weeks after summary judgment
briefing ended on September 4, 2012. (Id. at 6–7.) Plaintiffs respond that they followed
the Court’s Amended Case Management Order by making their Rule 26(a)(2) expert
disclosures on August 1, 2012 and serving their supplemental expert report no later than
October 1, 2012, two weeks in advance of the expert discovery deadline. (Doc. 21 at
1–2.) Plaintiffs note that even if the addendum prejudiced Defendants in any way, they
failed to allege prejudice or remedy it with a rebuttal report within thirty days of service,
as is permitted by Rule 26(a)(2)(D). (Id. at 2.)
Under the Federal Rules of Civil Procedure, parties must disclose the identity of
expert witnesses who may testify at trial and accompany that disclosure with a written
report prepared by the witness which includes “a complete statement of all opinions the
witness will express and the basis and reasons for them; the facts or data considered by
the witness in forming them; any exhibits that will be used to summarize or support
them,” as well as additional information about the witness’ qualifications, prior expert
testimony, and compensation received in the relevant case. Fed. R. Civ. P.
26(a)(2)(A)–(B). The parties must make these disclosures according to deadlines set in
any case management order or other order issued by the court. Fed. R. Civ. P.
26(a)(2)(D). Rule 26(a)(2) “imposes . . . [a] duty to disclose information regarding expert
testimony in advance of trial that opposing parties have a reasonable opportunity to
prepare for effective cross examination and perhaps arrange for expert testimony from
other witnesses.” Fed. R. Civ. P. 26, cmt. to 1993 Amendments.
The Federal Rules also give the parties a continuing duty to timely supplement
their expert disclosures when they are incorrect or incomplete if the additional
5

information has not otherwise been known to the other parties in the case. Fed. R. Civ.
P. 26(a)(2)(E); Fed. R. Civ. P. 26(e). The duty to supplement applies to the expert’s
report and opinions given during deposition testimony. Fed. R. Civ. P. 26(e)(2).
Supplemental reports must be disclosed by the time a party’s pre-trial disclosures are
due. Id.
Here, Plaintiffs have followed the Amended Case Management Order as well as
Rule 26(a) and 26(e). The Amended Case Management Order required Plaintiffs to
make their Rule 26(a)(2) disclosures no later than August 1, 2012. (Doc. 11, ¶ 4.) On
that date, Plaintiffs disclosed the materials required by Rule 26(a)(2), including the
Campbell Report. (Doc. 24 at 4.) On September 7, 2012, days after encountering the
Defendants’ argument that the Campbell Report was incomplete, Plaintiffs requested a
supplemental report from Ms. Campbell. (Doc. 24 at 5, Ex. F.) On October 1, 2012, the
deadline for supplemental expert reports, Plaintiffs received the addendum from Ms.
Campbell and served it upon Defendants that same day. (Doc. 24 at 5.) Pursuant to
Rules 26(a)(2) and 26(e), Plaintiffs timely supplemented their expert disclosures by
serving Defendants with the addendum the same day that Plaintiffs received it. Thus,
because Plaintiffs made their Rule 26(a) disclosures on time and supplemented them in
a timely manner, they have not violated Rules 26(a) and 26(e). Accordingly, it is
unnecessary for this Court to exclude the addendum, which was timely filed and
disclosed, pursuant to Federal Rule of Civil Procedure 37(c)(1) or permit the deposition
of Ms. Campbell. Plaintiffs’ Motion to Supplement (Doc. 18) will be granted and this
Court will consider the addendum in deciding Defendants’ Motion for Summary
Judgment.
B.

Defendants’ Motion for Summary Judgment
1. Legal Standard
Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
6

P. 56(c)(2). A fact is material if proof of its existence or nonexistence might affect the
outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish
that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Where,
however, there is a disputed issue of material fact, summary judgment is appropriate
only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of
material fact is genuine if “a reasonable jury could return a verdict for the nonmoving
party.” Id.
Where there is a material fact in dispute, the moving party has the initial burden
of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is
entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2727 (2d ed. 1983). The moving party may present
its own evidence or, where the nonmoving party has the burden of proof, simply point
out to the court that “the nonmoving party has failed to make a sufficient showing on an
essential element of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“When considering whether there exist genuine issues of material fact, the court
is required to examine the evidence of record in the light most favorable to the party
opposing summary judgment, and resolve all reasonable inferences in that party's
favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has
satisfied its initial burden, the burden shifts to the non-moving party to either present
affirmative evidence supporting its version of the material facts or to refute the moving
party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477
U.S. at 256–57. The Court need not accept mere conclusory allegations, whether they
are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
871, 888 (1990).
“To prevail on a motion for summary judgment, the non-moving party must show
specific facts such that a reasonable jury could find in that party’s favor, thereby
7

establishing a genuine issue of fact for trial.” Galli v. New Jersey Meadowlands Comm’n,
490 F.3d 265, 270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). “While the evidence that
the non-moving party presents may be either direct or circumstantial, and need not be
as great as a preponderance, the evidence must be more than a scintilla.” Id. (quoting
Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a
motion for summary judgment, “the judge's function is not himself to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
2. Mr. Vaskas’ Breach of Warranty Claims
Defendants argue that they are entitled to summary judgment on Mr. Vaskas’
breach of warranty claims because they were raised more than four years after the
tender of delivery of the Kenworth truck and are therefore time-barred under
Pennsylvania law.
In Pennsylvania, a breach of warranty claim is governed by a four-year statute of
limitations period. See 13 Pa. C.S.A. § 2725(a) (“an action for breach of any contract for
sale must be commenced within four years after the cause of action has accrued”). In
addition, “a cause of action accrues when the breach occurs, regardless of the
aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when
tender of delivery is made, except that where a warranty explicitly extends to future
performance of the goods . . . .”

13 Pa. C.S.A. § 2725(b). “The Pennsylvania Supreme

Court has squarely held that the four-year statute of limitations applies to all warranty
actions arising from sales of goods, including those in which the plaintiff seeks to
recover for personal injuries.” Pitts v. N. Telecom, Inc., 24 F. Supp. 2d 437, 443 (E.D.
Pa. 1998) (citing Williams v. W. Penn Power Co., 502 Pa. 557, 467 A.2d 811, 818
(1983)). Breach of warranty claims accrue on the date that the seller tenders delivery of
the goods. See Pitts, 24 F. Supp. 2d at 443 (citing Hornberger v. Gen. Motors Corp., 929
F. Supp. 884, n.2d (E.D. Pa. 1996)).
It is undisputed that Defendants tendered the Kenworth tractor to R.C. Moore on
8

May 19, 2005 (Doc. 14, Ex. B) and Plaintiffs brought their suit on August 11, 2009 (Doc.
1, Ex. A). As breach of warranty claims, which are governed by a four-year statute of
limitations under Pennsylvania law, accrue on the date that the seller tenders delivery of
goods, Mr. Vaskas had until May 19, 2009 to bring his breach of warranty claims. Thus,
because Mr. Vaskas, by his own admission, failed to bring his breach of warranty claims
within the applicable statute of limitations, they are time-barred and summary judgment
will be granted in Defendants’ favor as to these claims.
3. Mr. Vaskas’ Strict Liability Claims
Defendants move for summary judgment as to Mr. Vaskas’ strict liability claims on
the grounds that the Kenworth tractor is not defectively designed or unreasonably safe.
The substantive law of Pennsylvania applies to this strict products liability claim.
28 U.S.C. § 1332(a)(1); Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000)
(citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). According to the Erie doctrine, a
court sitting in diversity should apply the state law as pronounced by the highest court of
the state. See Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir. 2007). “The
highest court of the state is the final arbiter of what is state law. When it has spoken, its
pronouncement is to be accepted by federal courts as defining state law unless it has
later given clear and persuasive indication that its pronouncement will be modified,
limited, or restricted.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236, 61 S. Ct. 179, 85
L. Ed. 139 (1940) (citing Wichita Royalty Co. v. City Nat’l Bank of Wichita Falls, 306 U.S.
103, 107, 59 S. Ct. 420, 83 L. Ed. 515 (1939)). However, when the highest court of the
state has not addressed an issue, a federal court must predict how the highest state
court would resolve the issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d
Cir. 2010). And, in making this prediction, the court “may give serious consideration to
the opinion of an intermediate appellate court.” Aetna Cas. & Sur. Co. v. Farrell, 855
F.2d 146, 148-49 (3d Cir. 1988) (citing Commercial Union Ins. Co. v. Butuminous Cas.
Corp., 851 F.2d 98, 100 (3d Cir. 1988); Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110,
117 (3d Cir. 1987); Wilson v. Asten-Hill Mfg. Co., 791 F.2d 30, 32 (3d Cir. 1986)). The
9

decisions of intermediate state appellate courts can be disregarded when a federal court
“‘is convinced by other persuasive data that the highest court of the state would decide
otherwise.’” Buffetta, 230 F.3d at 637 (quoting West, 311 U.S. at 237).
Once the United States Court of Appeals for the Third Circuit predicts how a
state’s highest court would resolve an issue, district courts within the circuit are bound by
this prediction “unless the state supreme court issues a contrary decision or it appears
from a subsequent decision of the appellate courts that the court of appeals erred.”
Largoza v. Gen. Elec. Co., 538 F. Supp. 1164, 1166 (E.D. Pa. 1982) (citing Doane v.
Travelers Ins. Co., 266 F. Supp. 504, 405 (E.D. Pa. 1966)). The Third Circuit has held
that “federal district courts applying Pennsylvania law to products liability cases should
look to sections 1 and 2 of the Restatement (Third) of Torts.” Covell v. Bell Sports, Inc.,
651 F.3d 357, 359 (3d Cir. 2011). The Pennsylvania Supreme Court has not ruled
whether the Restatement (Third) of Torts provides the controlling analysis for products
liability claims rather than the analysis under the Restatement (Second) of Torts. See
Giehl v. Terex Utilities, No. 12-0083, 2012 WL 1183719, at *9 (M.D. Pa. Apr. 9, 2012).
Therefore, based on the Third Circuit’s pronouncement that the Restatement (Third)
applies to products liability actions arising under Pennsylvania law, and absent a
decision from the Pennsylvania Supreme Court to the contrary, the Court will apply
Sections 1 and 2 of the Restatement (Third) in this matter.
Section 1 of the Restatement (Third) provides that “[o]ne engaged in the business
of selling or otherwise distributing products who sells or distributes a defective product is
subject to liability for harm to persons . . . caused by the defect.” Restatement (Third) of
Torts § 1 (1998). Section 2 enumerates the possible categories of product defect:
A product is defective when, at the time of sale or distribution, it
contains a manufacturing defect, is defective in design, or is defective
because of adequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised in
the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed
10

by the product could have been reduced or avoided by the adoption
of a reasonable alternative design by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not
reasonably safe;
(c) is defective because of inadequate instructions or warnings
when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product not
reasonably safe.
Id. at § 2.
a. Manufacturing Defect
Mr. Vaskas alleges that Defendants are strictly liable for defectively
manufacturing the Kenworth tractor. (Doc. 1, Ex. A at ¶¶ 50, 54.) He points to the
deviation of the steps’ depth and height from Kenworth’s internal design specifications
and requirements as evidence of manufacturing defects. (Id.; Peck Dep. at 77, 79; Doc.
24, Ex. F at ¶ 2.) Defendants claim that they are entitled to summary judgment on these
claims because Mr. Vaskas has not raised these claims until Plaintiffs’ brief in opposition
to summary judgment. (Doc. 17 at 5–6.)
Section 2(a) of the Restatement (Third) imposes liability for manufacturing defects
whether or not the manufacturer’s quality control efforts satisfy standards of
reasonableness. Restatement (Third) of Torts § 2(b), cmt. a. A manufacturing defect is
“a departure from a product unit’s design specifications.” Id., cmt. c.
In addition to alleging that the Kenworth tractor was manufactured defectively
(Doc. 1, Ex. A at ¶¶ 50, 54), Mr. Vaskas has adduced evidence that the steps of the
Kenworth tractor contain a manufacturing defect. First, he has introduced evidence that
the distance from the tractor’s top step to its bottom step (21.5 inches) exceeded the
distance on the design specifications (19.5 inches). (Peck Dep. at 77, 79.) He has also
adduced evidence that the depth of the tractor’s cab steps (4.625 inches) did not meet
Kenworth’s internal requirements (4.76 inches). (Doc. 24, Ex. F at ¶ 2.) Based on this
evidence, the Court concludes that a jury could find that the Kenworth tractor’s steps
11

were manufactured defectively. Accordingly, Defendants’ Motion for Summary
Judgment will be denied as to Mr. Vaskas’ strict liability manufacturing defect claims.
b. Design Defect
Mr. Vaskas also alleges that Defendants are strictly liable for defectively
designing the Kenworth tractor. (Doc. 1, Ex. A at ¶¶ 50, 54.) He specifically alleges that
Defendants’ design of the Kenworth tractor was defective because it failed to have
“properly designed step treads,” “appropriate non-skid or slip resistant surface on the
step treads,” and “a second handrail available for use upon entering and/or exiting the
tractor.” (Id.) He also points to reasonable, technically and economically feasibly
alternative designs for the Kenworth tractor’s steps and handrails that would make it
safer. (Doc. 24, Ex. F at ¶¶ 21, 24.) Defendants argue that they are entitled to
summary judgment on these claims because under a risk-utility analysis, the Kenworth
tractor is not unreasonably dangerous. (Doc. 14 at 7.)
Whether or not a particular design is defective under the Restatement (Third)
depends, in relevant part, upon whether foreseeable risks of harm from the product
could have been reduced or avoided by the distributor’s adoption of a reasonable
alternative design. Restatement (Third) of Torts § 2(b). Furthermore, the absence of
such an alternative design must render the product “not reasonably safe.” Id. “In other
words, a plaintiff cannot prevail in imposing strict liability . . . if the proposed design
merely makes an already safe product slightly safer.” Sansom v. Crown Equip. Corp.,
No. 10-958, 2012 WL 3027989, at *7 (W.D. Pa. July 24, 2012).
Accordingly, to establish a prima facie case of design defect, a plaintiff bears the
burden of proving that a reasonable alternative design was, or reasonably could have
been, available at the time of sale. Restatement (Third) of Torts § 2(b), cmt. d. Section
2(b) adopts a reasonableness or “risk-utility balancing” test to judge the defectiveness of
product designs. Id. “[T]he test is whether a reasonable alternative design would, at
reasonable cost, have reduced the foreseeable risks of harm posed by the product and,
if so, whether the omission of the alternative design by the seller . . . rendered the
12

product not reasonably safe.” Id. A plaintiff may rely on credible expert testimony that
the alternative design could have been practically adopted at the time of sale, even
where the expert has not produced a prototype. Restatement (Third) of Torts § 2, cmt. f.
A court may consider a broad range of factors in determining whether an alternative
design is reasonable and whether its omission renders a product not reasonably safe.
Id. Factors relevant to this determination include “the magnitude and probability of the
foreseeable risks of harm, the instructions and warnings accompanying the product, and
the nature and strength of consumer expectations regarding the product . . . [and] [t]he
relative advantages and disadvantages of the product as designed and as it alternatively
could have been designed.” Id.
Regarding the foreseeable risk of harm, the Court concludes that a jury could
find, based on the record evidence, that Defendants could have foreseen that an
operator of the Kenworth tractor could suffer injury by slipping or falling while entering or
exiting the cab, especially in wet or muddy conditions. Indeed, Defendants repeatedly
acknowledge this risk of harm in the Kenworth tractor’s operating manual. The manual
warns drivers to refrain from jumping out of the cab or entering the cab without proper
caution, as they could slip or fall and possibly suffer a serious injury. (Doc. 14, Ex. H, at
3.) It also warns drivers that they could slip and fall if the steps are wet or icy, or if the
driver steps in fuel, oil, or grease. (Id.) It further advises drivers that they can help avoid
personal injury due to a slip or fall by using the three points of contact system whenever
possible, watching where they are going, and using more care when their footwear or
the tractor’s steps and handhold are wet or coated with mud or fuel. (Id. at 4.)
Moving to the existence of reasonable alternative designs, Mr. Vaskas has
adduced evidence of reasonable alternative designs for the Kenworth tractor’s cab
access system that are both technically and economically feasible. With regard to the
handrails and handholds, Plaintiffs’ expert, Ms. Campbell, opines that a technically and
economically feasible reasonable alternative design would add them to the inside of the
driver’s or passenger’s door. (Doc. 24, Ex. F at ¶ 21.) Other leading manufacturers
13

were commonly implementing handrails on both sides of tractor steps at the time of the
Kenworth tractor’s manufacture. (Id. at ¶ 24.) Further, Defendants’ corporate
representative admitted that it is a safer design to have more handholds than less.
(Doc. 16, Ex. D at 64:1–5.) Ms. Campbell states that implementing this alternative
design “would have eliminated the awkward positioning of the user as required to utilize
the one handrail present and increased the likelihood of usage by users with having
handrails . . . located on each of their sides.” (Doc. 24, Ex. F at ¶ 21.) She also opines
that technically and economically feasible alternative designs for the steps’ treads
“include using steps with raised perforations or serrations to the edge of the step instead
of leaving a 7/16 inch gap of smooth metal, making the gap between the perforations
and the edge of the step smaller . . ., and application of an adhesive grit strip from the
edge of the perforations that would fold over the rounded edge of the step.” (Id.) These
alternatives “would increase the slip resistance of the steps for users entering and
exiting the cab.” (Id.) Based on this evidence, a jury could find that at least one of the
proposed reasonable alternative designs would, at reasonable cost, have reduced the
foreseeable risks of harm posed by the cab access system of the Kenworth tractor.
However, the record is devoid of evidence that the omission of a reasonable
alternative design has rendered the cab access system of the Kenworth tractor not
reasonably safe. Although Ms. Campbell opines that implementing the technically and
economically feasible alternative designs would make the cab access system safer and
would have prevented Mr. Vaskas’ slip and fall, neither she nor Mr. Vaskas have
adduced evidence that the Kenworth tractor is not reasonably safe because it does not
feature those designs. Furthermore, the magnitude and probability of the foreseeable
harm, especially in light of the numerous warnings contained in the tractor’s operating
manual, is not significant enough to convince the Court that the Kenworth tractor is not
reasonably safe in its current state. Therefore, this Court concludes that, based on the
record evidence, a jury could not find that the omission of a reasonable alternative
design of the cab access system has rendered the Kenworth tractor not reasonably safe.
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In sum, applying the reasonableness test articulated by the Restatement (Third)
of Torts for imposition of strict liability for an alleged design defect, the Court holds, after
reviewing the evidence in the light most favorable to Plaintiffs, that Mr. Vaskas’ strict
liability design defect claims fail as a matter of law. Accordingly, summary judgment will
be granted in favor of Defendants on Mr. Vaskas’ strict liability design defect claims.
c. Defective due to Inadequate Warnings
Mr. Vaskas further alleges that Defendants are strictly liable because the
Kenworth tractor is defective due to inadequate instructions or warnings. (Doc. 1, Ex. A
at ¶¶ 50, 54.) He asserts that Defendants failed to adequately warn of the unique
dangers presented by the Kenworth tractor’s steps, which “were non-complaint with antiskid standards, and had an unfamiliar design that was insufficiently slip-resistant.” (Doc.
16 at 16.) Although he acknowledges that the Kenworth tractor’s operating manual
contained warnings about the cab access system, he maintains that the manual failed to
address the relevant hazards with specificity and the tractor itself failed to include a
warning sticker. (Id. at 17.) Defendants respond that they are entitled to summary
judgment on these claims because the operating manual provided adequate instructions
and warnings about a fall hazard associated with the cab access system, especially in
inclement conditions, and how to avoid that hazard. (Doc. 14 at 11–12.) They also
contend that summary judgment is warranted on these claims because Mr. Vaskas
failed to use the three points of contact system highlighted in the operating manual and
thereby failed to obey an adequate warning that was given. (Id. at 11–13.)
Under § 2(c) of the Restatement (Third) of Torts, a product is defective because
of inadequate instructions or warnings when “the foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of reasonable instructions
or warnings by the seller or other distributor . . . and the omission of the instructions or
warnings renders the product not reasonably safe.” The reasonableness test in § 2(c)
for judging the adequacy of product instructions and warnings parallels § 2(b)’s standard
for judging the safety of product designs. Restatement (Third) of Torts § 2(c), cmt. i.
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The defectiveness concept is more difficult to apply in the warnings context, however,
because no easy guideline exists for courts to adopt in assessing the adequacy of
product warnings and instructions. Id. “It is impossible to identify anything approaching
a perfect level of detail that should be communicated in product disclosures,” given that
“warnings and instructions can rarely communicate all potentially relevant information.”
Id. A plaintiff must prove that adequate instructions or warnings were not provided, but
his ability “to imagine a hypothetical better warning in the aftermath of an accident does
not establish that the warning . . . accompanying the product was inadequate.” Id. In
evaluating the adequacy of product warnings and instructions, courts must focus on
various factors, such as “content and comprehensibility, intensity of expression, and the
characteristics of expected user groups.” Id.
Here, Mr. Vaskas has adduced evidence that the foreseeable risks of harm posed
by slippery cab steps could have been reduced or avoided by the provision of
reasonable instructions or warnings. Plaintiffs’ expert, Ms. Campbell, opines that basic
engineering principles teach that warnings are most effective when placed at the point of
the potential hazard and that Mr. Vaskas’ fall would not have happened but for the
Defendants’ failure to place stickers in the cab access area warning of stair slipperiness
in inclement conditions. (Doc. 24, Ex. F at ¶¶ 10, 14, 16, 21.) However, Mr. Vaskas has
not adduced any evidence that the Kenworth tractor is not reasonably safe because
Defendants have not placed place warning stickers in the cab access area. Based on
the record evidence, this Court concludes that a jury could not find that the omission of
stickers in the cab access area warning of stair slipperiness in inclement conditions
renders the Kenworth tractor not reasonably safe. Accordingly, Defendants’ Motion for
Summary Judgment will be granted with respect to Mr. Vaskas’ strict liability inadequate
warnings claims.
4. Mr. Vaskas’ Negligence Claims
Mr. Vaskas asserts that Defendants negligently designed and manufactured the
Kenworth tractor which caused his injuries. (Doc. 1, Ex. A, ¶¶ 25-44.) He alleges that
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Defendants were negligent in failing to have properly designed step treads, a non-skid or
slip resistant surface on the step treads, proper warnings, steps of a proper rise and
width, and a second handrail on the Kenworth tractor. (Id. at ¶¶ 26, 36.) He also alleges
that Defendants negligently failed to identify the hazard of user stability and design
alternatives for handrails or handholds as well as design according to the Code of
Federal Regulations and recommendations of the Pennsylvania Department of
Transportation and the Society of Automotive Engineers. (Id. at ¶¶ 26, 36.)
Defendants claim that summary judgment should be entered in their favor on Mr.
Vaskas’ negligence claims because he has failed to show any evidence of a breach of
duty in their design or manufacture of the Kenworth tractor or that any defect in
manufacture or design was the proximate cause of his injuries. (Doc. 17 at 3–8.) Mr.
Vaskas responds that there are genuine disputes of material fact as to these issues that
should be left for the jury. (Doc. 16 at 12.)
Under Pennsylvania law, for Mr. Vaskas to prove a claim for negligence under
design or manufacture theory, he must show: “that the manufacturer owed a duty to the
plaintiff; that the manufacturer breached that duty; and such breach was the proximate
cause of plaintiff’s injuries.” Parkinson v. Guidant Corp., 315 F. Supp. 2d 741, 749
(W.D. Pa. 2004) (citing Dauphin Deposit Bank & Trust v. Toyota, 408 Pa. Super. 256,
596 A.2d 845, 849–50 (1991)); see also Van Scoy v. Powermatic, a Div. Of Stanwich
Indus., Inc., 810 F. Supp. 131, 135 (M.D. Pa. 1992) (“[I]n the negligence aspect of his
case, in order to recover, the Plaintiff must not only prove that the product was defective
and that the defect caused his injury, but . . . [also] that in manufacturing or supplying
the product, the Defendant failed to exercise due care.”) Furthermore, he must prove
that the manufacturer was at fault. Parkinson, 315 F. Supp. 2d at 749.
a. Breach of Duty
Defendants have a duty of ordinary and reasonable care in designing and
manufacturing the Kenworth tractor. See Dyson v. Gen. Motors Corp., 298 F. Supp.
1064, 1067 (E.D. Pa. 1969). Through Plaintiffs’ expert, Mr. Vaskas has adduced
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evidence that Defendants have breached that duty. Ms. Campbell has opined that the
depth of the Kenworth tractor’s steps failed to meet Defendants’ design specifications
and Federal Motor Vehicle Safety Standards. (Doc. 20, Ex. 4, at ¶ 2.) She further
opines that Defendants failed to conform to fundamental engineering principles and
practices by designing and manufacturing non-perforated metal steps with rounded
edges, failing to place a warning sticker in the cab access area, and using only one
handhold in the cab access system. (Id. at ¶¶ 8, 16–19, 21, 24–25.) This evidence,
when viewed in the light most favorable to Mr. Vaskas, the non-movant, creates a
genuine issue of material fact as to whether Defendants’ breached the duty owed to him.
b. Proximate Cause
To establish a causal connection between Defendants’ conduct and Mr. Vaskas’
injuries, Mr. Vaskas must show that Defendants were a proximate cause of his injuries.
See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280,1284 (1978) (citing Flickinger Estate
v. Ristky, 452 Pa. 69, 305 A.2d 40 (1973); Dornan v. Johnston, 421 Pa. 58, 218 A.2d
808 (1966); Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965); Gift v. Palmer,
392 Pa. 628, 141 A.2d 408 (1958); Fries v. Ritter, 381 Pa., 470, 113 A.2d 189 (1955)).
“Pennsylvania law defines proximate cause as causation which was a factual cause in
bringing about the injury.” Carter v. United States, No. 11-1669, 2012 WL 2215343, at
*5 (M.D. Pa. June 11, 2012) (citing Gorman v. Costello, 929 A.2d 1208, 1213 (Pa.
Super. 2007); Pa. SSJI (Civ.) §§ 13.00, 13.160). “Conduct is a factual cause of harm
when the harm would not have occurred absent the conduct. To be a factual cause, the
conduct must have been an actual, real factor in causing the harm, even if the result is
unusual or unexpected. A factual cause cannot be . . . [a] factor having no connection
or only an insignificant connection with the harm.” Pa. SSJI (Civ.) § 13.160. However,
“[t]o be a factual cause, the defendant's conduct need not be the only factual cause.
The fact that some other causes concur with the negligence of the defendant in
producing an injury does not relieve the defendant from liability as long as [his or her]
own negligence is a factual cause of the injury.” Id. Because the issue of proximate
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cause is inherently fact-based, causation is generally a question of fact for the jury. See
Summers v. Cetainteed Corp., 606 Pa. 294, 314, 997 A.2d 1152, 1164 (2010). However,
“where it is clear that reasonable minds could not differ on the issue,” the issue of
causation may be removed from the trier of fact's consideration. Id. (quoting Hamil, 392
A.2d at 1285–86 (1978)).
Here, Ms. Campbell opines that but for Defendants’ failures in designing and
manufacturing the Kenworth tractor and warning users of potential hazards, Mr. Vaskas
would not have slipped and fallen off the steps and sustained injuries. (Doc. 24, Ex. F at
¶ 25.) When viewed in the light most favorable to Mr. Vaskas, this evidence creates a
genuine issue of material fact as to whether Defendants’ allegedly negligent design or
manufacture of the Kenworth tractor was a proximate cause of his injuries.
In sum, because genuine issues of material fact exist as to the issues of breach
of duty and causation, Defendants’ motion will be denied as to Mr. Vaskas’ negligence
claims.
III. Conclusion
For the above-mentioned reasons, Plaintiffs’ Motion to Supplement (Doc. 18) is
granted and Defendants’ Motion for Summary Judgment (Doc. 14) is granted in part and
denied in part.
An appropriate order follows.

January 8, 2013
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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