RAPCHAK et al v. DAIMLER TRUCKS NORTH AMERICA, LLC et al
Filing
201
MEMORANDUM OPINION AND ORDER granting in part and denying in part 188 Plaintiff's Motion in Limine as set forth more fully therein. Signed by Judge Terrence F. McVerry on 7/14/2016. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BONNIE RAPCHAK, Executrix of the Estate
of John E. Borzik, Deceased,
Plaintiff,
v.
HALDEX BRAKE PRODUCTS
CORPORATION,
Defendants.
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) 2:13-cv-1307
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MEMORANDUM OPINION
Now pending before the Court is PLAINTIFF’S MOTIONS IN LIMINE AND
REQUEST FOR EVIDENTIARY RULINGS (ECF No. 188), with a brief in support (ECF No.
189). Defendant filed a brief in opposition (ECF No. 195), and Plaintiff filed a reply brief (ECF
No. 198). Accordingly, the motion is ripe for disposition.
A. Background
Since the Court writes only for the parties, who are familiar with the facts of this case,
they will not be recounted at length. It suffices to say that decedent, John E. Borzik, died from
asphyxiation on September 11, 2011, when his Gulfstream TourMaster motorhome, equipped
with an air suspension system, descended about 2½ to 3 inches onto his chest while he was lying
underneath it performing maintenance work. Defendant, Haldex Brake Products Corporation
(“Haldex”), designed, manufactured, and sold the height control valves (“HCV”) used in the air
suspension system of the motorhome, which Plaintiff alleges were defectively designed.
On March 15, 2016, the Court denied Haldex’s motion for summary judgment, along
with its motion in limine to exclude the testimony of Plaintiff’s engineering expert, Ervin
Vandenberg (ECF No. 185). Thereafter, the Court ordered the parties to file pretrial statements,
which were filed on March 29, 2016, and April 4, 2016, respectively. Trial in this matter has not
yet to be scheduled.
B. Discussion
In the now-pending motion, Plaintiff seeks to preclude Haldex from introducing or
making:
(1) [a]ny argument or evidence of using concepts of negligence or due care on the
part of the defendant in designing, making, and selling the subject product,
including evidence of compliance with state-of-the-art practices, industry
standards, or government regulations[;]
(2) [a]ny argument or evidence of opinions or beliefs of Freightliner Custom
Chassis Corporation (FCCC) regarding the safety or quality of the subject
HCV[;]
(3) [a]ny argument or evidence attempting to prove that FCCC was negligent or at
fault in its design of its chassis so as to be a cause of the subject incident[;]
(4) [a]ny argument or evidence suggesting or attempting to prove contributory
negligence on the part of decedent[;]
(5) [a]ny reference to or use of documents produced by Power Gear relative to the
use of a leveling system on the motorhome which was not being used[;]
(6) [a]ny reference to or evidence that decedent failed to use jack stands, jacks,
blocks or other devices to support the suspension when the engine was off and
he was not changing a tire or jacking/raising the suspension or frame of the
motorhome[;]
(7) [a]ny reference to or evidence calculated to argue assumption of the risk [;]
(8) [a]ny reference to or evidence of the beliefs or lay opinions of witnesses
regarding decedent’s actions, judgment or attitudes on dates preceding the
subject incident or with his interaction with the motorhome on the day of his
death[;]
(9) [a]ny evidence of a lack of prior claims of injury or death related to a
malfunctioning CR model valve[;]
(10)
[a]ny reference or evidence of receipt by decedent of collateral sources of
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money[;] [and]
(11) [a]ny reference to or evidence that decedent was involved in a motorcycle
collision years before and/or received compensation.[1]
Pl.’s Mot. 1-2. These issues will be addressed seriatim.
Prior to doing so, however, the Court will take a moment to reflect on the effect of the
Supreme Court of Pennsylvania’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328, 389
(Pa. 2014), on the state of products liability law in Pennsylvania. “The principal impact of
Tincher is twofold.” Punch v. Dollar Tree Stores, Inc., No. CV 12-154, 2015 WL 7769223, at *3
(W.D. Pa. Nov. 5, 2015). First, the Supreme Court “overruled the seminal case of Azzarello v.
Black Brothers Co., 391 A.2d 1020 (Pa. 1978), which created a distinct dichotomy between strict
liability and negligence claims in Pennsylvania that ultimately led to trial courts ‘directing that
negligence concepts have no place in Pennsylvania strict liability doctrine.’” Id. (quoting
Tincher, 104 A.3d at 376). In overruling Azzarello, the Tincher Court also made clear that it is
now up to the jury not the judge to determine whether a product is in a “defective condition
unreasonably dangerous” to the consumer. Lewis v. Lycoming, No. CIV.A. 11-6475, 2015 WL
3444220, at *4 (E.D. Pa. May 29, 2015) (citing Tincher, 104 A.3d at 335); Amato v. Bell &
Gossett, 116 A.3d 607, 620 (Pa. Super. Ct. 2015). “Second, the Tincher Court declined to adopt
the Restatement (Third) of Torts to replace the Azzarello standards abrogated by its decision,
because it ‘presumes too much certainty about the range of circumstances, factual or otherwise,
to which the “general rule” articulated should apply.’” Punch, 2015 WL 7769223, at *3 (quoting
Tincher, 104 A.3d at 398). Thus, “Pennsylvania remains a Second Restatement jurisdiction[.]”
Tincher 104 A.3d at 415. Under the Second Restatement, “the cause of action in strict products
1.
Haldex has indicated that it does not intend to introduce any evidence of collateral
sources of money or related to decedent’s prior motorcycle accident, so those aspects of
Plaintiff’s motion are moot and need not be discussed herein.
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liability requires proof . . . either of the ordinary consumer’s expectations or of the risk-utility of
a product.” Id. at 417. “[T]his is a combined test that requires the plaintiff to meet only one of the
two standards, which may be pled in the alternative.” Punch, 2015 WL 7769223, at *3 (citing
Tincher, 104 A.3d at 391).
In this case, Plaintiff is proceeding under the risk-utility theory. “The risk-utility test
offers courts an opportunity to analyze post hoc whether a manufacturer’s conduct in
manufacturing or designing a product was reasonable, which obviously reflects the negligence
roots of strict liability.” Tincher, 104 A.3d at 398 (citations omitted). Under the test, “a product
is in a defective condition if a ‘reasonable person’ would conclude that the probability and
seriousness of harm caused by the product outweigh the burden or costs of taking precautions.”
Id. “Other jurisdictions have generally cited favorably the works of Dean Wade, which
articulated factors relevant to the manufacturer’s risk-utility calculus implicated in
manufacturing or designing a product.” Id. Dean Wade’s non-exhaustive list of factors takes into
consideration:
(1) The usefulness and desirability of the product—its utility to the user and to
the public as a whole.
(2) The safety aspects of the product—the likelihood that it will cause injury, and
the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and
not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the product
without impairing its usefulness or making it too expensive to maintain its
utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the
product.
(6) The user’s anticipated awareness of the dangers inherent in the product and
their availability, because of general public knowledge of the obvious
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condition of the product, or of the existence of suitable warnings or
instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by
setting the price of the product or carrying liability insurance.
Id. at 398-99 (citation and quotation marks omitted). However, “while these considerations may
provide a holistic perspective on a manufacturer’s choice to bring a product to market, they may
not be immediately responsive in the (typical) case implicating allegations relating to a particular
design feature.” Id. (citation omitted).
1. Evidence of Due Care on the Part of Haldex
Prior to Tincher, this type of evidence was not admissible in a products liability action.
See Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 528 A.2d 590, 593-94 (Pa. 1987);
Carrecter v. Colson Equip. Co., 499 A.2d 326, 330–31 (Pa. Super. Ct. 1985). This rule was
premised on the dichotomy between strict liability and negligence that existed under Azzarello.
See Lewis, 528 A.2d, at 594 (explaining that because “evidence of industry standards . . . go[es]
to the reasonableness of the [defendant’s] conduct . . . such evidence would have improperly
brought into the case concepts of negligence law”). However, “[t]he Lewis majority’s reasoning,
based on Azzarello and the then-impermissible comingling of negligence and strict liability
concepts, conflicts with Tincher’s pronouncement that a manufacturer’s conduct and
reasonableness is relevant to the determination of product defect.” Sliker v. Nat’l Feeding
Systems, Inc., No. 282 CD 2010, 2015 WL 6735548, at *7 (Pa. Com. Pl. Clarion Cnty., Oct. 18,
2015). As the Lewis dissent recognized, “industry standards are written by specialized
individuals with knowledge of product design superior to that of courts and, as a result, evidence
of such standards is relevant to the question of defect[.]” Tincher, 104 A.3d at 369. Accordingly,
although evidence of “compliance with industry standards” is not a complete defense to a
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plaintiff’s strict liability claim, “or even ‘necessarily’ [] ‘highly probative,’ . . . without
affirmative authority from Tincher or any other post-Tincher precedential decision [of the
Pennsylvania Supreme Court] barring such evidence . . . the principles of Tincher counsel in
favor of its admissibility.” Sliker, 2015 WL 6735548, at *7.
Be that as it may, Plaintiff has not specifically identified any such evidence that she
believes Haldex intends to introduce (e.g., any exhibits or deposition transcript excerpts
mentioning or discussing industry or government standards or the current state-of-the-art). Nor
has Haldex identified any such evidence. So it seems premature to rule on the admissibility of
this type of evidence at this time. Without knowing the particular evidence that Haldex intends to
rely upon (or even if Haldex actually intends to introduce any such evidence), the Court cannot
assess its relevancy to the risk-utility test and hence its admissibility under Rules 401 through
403. Accordingly, Plaintiff’s motion to preclude Defendant from introducing evidence of state of
the art and compliance with industry and government standards will be denied without prejudice.
Plaintiff may re-raise the issue at trial if Defendant attempts to introduce any evidence that falls
into these categories, at which time the Court will be able to better evaluate its admissibility.
2. Testimony from FCCC regarding the safety and quality of the HCV
The parties dispute whether Haldex should be permitted to offer testimony from a FCCC
representative to the effect that FCCC “considers the Haldex height control valves to be of highquality with no inherent defects and continues to keep using them because they meet the
requirements of their application.” Def.’s Br. 21. According to Haldex, “evidence of FCCC’s
assessment of the safety aspects and quality of the HCV is highly probative of how a reasonable
manufacturer would assess whether the probability and seriousness of the harm caused by the
HCV outweigh the burden or costs of taking precautions” and thus is “admissible under the risk-
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utility test” – particularly, the second Wade factor, which allows for consideration of the safety
aspects of the product as designed. Id.
The Court disagrees. Contrary to Haldex’s argument, it does not matter that a “reasonable
manufacturer” thought the valves were “high quality.” For one thing, the risk-utility test is
analyzed from the perspective of a “reasonable person.” Tincher, 104 A.3d at 389 (emphasis
added). More to the point, Haldex’s argument looks like an attempt to have FCCC corporate
designee, Nicholas Rini, offer his lay opinion as to how the jury should resolve the risk-utility
question – to, in effect, tell the jury, “FCCC didn’t see any problems with the way the valves are
designed, so you shouldn’t either.” But that is the ultimate issue that the jury will be asked to
decide, and the lay opinion of FCCC’s corporate designee would not be helpful to the jury’s
determination. See Hirst v. Inverness Hotel Corp., 544 F.3d 221, 226 (3d Cir. 2008) (quoting
Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir. 1986)) (“‘[S]eldom will be the case when a
lay opinion on an ultimate issue will meet the test of being helpful to the trier of fact since the
jury’s opinion is as good as the witness’ and the witness turns into little more than an “oath
helper.”’”). Haldex has not even attempted to explain how the testimony of Mr. Rini – who has
not been proffered as an expert – could possibly describe “[t]he safety aspects of the product –
the likelihood that it will cause injury, and the probable seriousness of the injury.” Id. (quoting
the second Wade factor). Indeed, at least according to the representations of Plaintiff, which have
not been refuted by Haldex, Mr. Rini did not even display a “basic familiarity” with the HCV, so
it is entirely unclear how he could offer any perspective on the risks posed by the valve as
designed.
Be that as it may, since the Court has not been fully apprised of the testimony that Haldex
intends to offer from Mr. Rini, the Court cannot say with certainty that none of it is relevant to
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the risk-utility test. Thus, the Court will not bar Mr. Rini from testifying, but Plaintiff may reraise this issue at trial.
3. Evidence of FCCC’s Alleged Fault
Haldex contends that evidence of FCCC’s conduct is relevant with respect to causation
and to enable the jury to apportion damages under the Fair Share Act, 42 Pa. C.S. § 7102(a.2).
The Pennsylvania General Assembly enacted the Fair Share Act in 2011. In addition to
abolishing “true” joint and several liability, the Fair Share Act provides,
[f]or purposes of apportioning liability only, the question of liability of any
defendant or other person who has entered into a release with the plaintiff with
respect to the action and who is not a party shall be transmitted to the trier of fact
upon appropriate requests and proofs by any party.
42 Pa. C.S. § 7102(a.2).
Prior to the enactment of the Fair Share Act, the Pennsylvania courts had already “held
that a defendant has a right to have a settling defendant appear on the verdict form in order to
apportion liability[,]” even if a cross-claim has not be filed. Dunlap v. Ridley Park Swim Club,
No. 3199 EDA 2014, 2015 WL 6667763, at *2 & n.3 (Pa. Super. Ct. Sept. 4, 2015) (citing Davis
v. Miller, 123 A.2d 422, 424 (Pa. 1956)). The right to have a settling co-defendant appear on the
verdict slip is not absolute, though. Hyrcza v. W. Penn Allegheny Health Sys., Inc., 978 A.2d
961, 969 (Pa. Super. Ct. 2009). Rather, “a trial court must determine whether any evidence of a
settling co-defendant’s liability exists before deciding whether to put that co-defendant on a jury
verdict slip.” Id. (citing Davis, 123 A.2d at 424; Ball v. Johns–Manville Corp., 625 A.2d 650
(Pa. Super. Ct. 1993); Herbert v. Parkview Hosp., 854 A.2d 1285 (Pa. Super. Ct. 2004)). “If the
evidence is insufficient to support a prima facie case against a settling co-defendant,” then “such
co-defendant may be left off the jury verdict slip.” Id.
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Although Plaintiff concedes that Defendant “has the right to have [FCCC’s] conduct
considered,” she argues that “it can only be upon appropriate submission of proof which will
have the potential of rendering FCCC a joint tortfeasor (joint or several), i.e., by expert opinion.”
Pl.’s Reply 13. According to Plaintiff, such an opinion is lacking. Id. at 12. As Plaintiff explains,
Haldex’s only expert, Randall Petresh, purports to explain in his report how air may have
escaped from the system, but he does not actually opine that FCCC was negligent or that the
chassis was defectively designed. Id. Moreover, while Plaintiff acknowledges that her own
expert did provide an opinion regarding the design of the FCCC chassis, she now represents that
her expert will not be asked to offer that opinion, since she has settled with FCCC, and thus “any
effort to elicit such an opinion would be beyond the scope of direct examination[.]” Id. (citing
Fed. R. Evid. 611(b); Trout v. Milton S. Hershey Med. Cntr., 576 F. Supp. 2d 673 (M.D. Pa.
2008)).
From the Court’s perspective, it is too early to determine whether FCCC should appear
on the verdict slip for purposes of apportioning liability. Before the Court can make that
determination, it must be in a position to evaluate the sufficiency of the evidence presented at
trial with regard to FCCC’s alleged negligence or the defectiveness of its design of the chassis.
Such an evaluation is impossible at this juncture because no evidence has been presented by
either side. Accordingly, the Court will deny Plaintiff’s motion without prejudice. Plaintiff may
re-raise the issue after the presentation of evidence at trial. In the event that there is sufficient
evidence to apportion liability to FCCC, liability would be shared on a pro rata basis, i.e., FCCC
would be responsible for 50 percent of the verdict. See Baker v. ACandS, 755 A.2d 664, 669 (Pa.
2000) (citing Walton v. Avco Corp., 610 A.2d 454 (Pa. 1992)) (“In strict liability actions, liability
is indeed apportioned equally among joint tortfeasors.”).
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Finally, with respect to Plaintiff’s contention that Haldex should not be permitted to cross
examine Plaintiff’s expert as to the portions of his report addressing the potential liability of
FCCC, the Court cannot entirely agree. Cross-examination on such grounds may be “permissible
for impeachment purposes[.]” Stang v. Smith, No. 09-3311, 2014 WL 11300415, at *8 (Pa. Com.
Pl. Carbon Cnty., July 28, 2014). Otherwise, the jury might be given the “false impression that”
Plaintiff’s expert believes that Haldex alone was responsible for decedent’s death when in fact
his opinion is more complex than that. Id. (citing Conley v. Mervis, 188 A. 350 (Pa. 1936)). Such
cross-examination may also be permissible “to prove the substantive liability of” FCCC, without
“run[ning] afoul of the rule that one party may not compel an expert for the opposing party to
offer an opinion against his will.” Id.; see also Dunlap, 2015 WL 6667763, at *5 (citing Herbert,
854 A.2d at 1290) (“not[ing] that it is appropriate for [the non-settling defendant] to rely upon
expert testimony offered by Dunlap’s expert” to establish the settling defendant’s liability).
Because Plaintiff has not expressly requested a ruling to limit the scope of Haldex’s crossexamination of Plaintiff’s expert, however, the Court will also defer definitely ruling on these
issues until such time as they may arise at trial.
4. Evidence Suggesting Contributory Negligence
Plaintiff submits that Haldex should be precluded from offering evidence that Mr. Borzik
was contributorily negligent in that he “ignor[ed] warnings” and failed to “us[e] common sense
by getting under the vehicle without jack stacks.” Pl.’s Br. 5. For its part, Defendant counters
that evidence of Mr. Borzik’s alleged negligence is relevant under Tincher to determine whether
the product was defective, as well as to negate causation.
Prior to Tincher, “Pennsylvania courts generally bar[red] consideration of contributory
negligence in strict liability actions.” Surace v. Caterpillar, Inc., 111 F.3d 1039, 1050 (3d Cir.
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1997) (citing Kimco Dev. Corp. v. Michael D’s Carpet, 637 A.2d 603, 606 (Pa. 1993)). At the
same time, however, Pennsylvania courts permitted a defendant “to introduce evidence that the
plaintiff assumed the risk,” “misused the product, or “engaged in highly reckless conduct to
defeat a products liability claim.” Dillinger v. Caterpillar, Inc., 959 F.2d 430, 445 (3d Cir. 1992).
“Under these limited theories, the appellate courts of this Commonwealth ha[d] held that an
inquiry as to a plaintiff’s use of a product is relevant as it relates to causation.” Childers v. Power
Line Equip. Rentals, Inc., 681 A.2d 201, 207 (Pa. Super. Ct. 1996). The reasoning was that if the
plaintiff’s conduct fell into any of those categories, it was so “unforeseeable and outrageous” that
it broke the chain of causation and amounted to a superseding cause of the plaintiff’s injuries.
See generally Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012).
The parties disagree about whether Tincher altered this framework. In Defendant’s view,
“[u]nder the principles announced in Tincher . . . evidence of Plaintiff’s conduct is” relevant not
only insofar as it may relate to causation, but also “with respect to the jury’s risk-utility
analysis.” Def.’s Br. 24. In particular, Defendant argues that Mr. Borzik’s conduct is relevant to
the fifth Wade factor, which requires an assessment of “[t]he user’s ability to avoid the danger by
the exercise of care in the use of the product.” Tincher, 104 A.3d at 390. Plaintiff, on the other
hand, contends that evidence of a user’s ordinary negligence generally remains inadmissible,
while evidence of assumption of the risk, misuse, and highly reckless conduct may be admissible
on the issue of causation, just as it was before Tincher. Plaintiff further asserts that the relevant
inquiry under the fifth Wade factor “is whether the class of ordinary purchasers could avoid
injury” by the exercise of due care, “not on the particular conduct of the plaintiff-user.” Pl.’s
Reply 22.
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Tincher itself does not resolve this question. Although the Tincher Court recognized that
its “decision to overrule Azzarello . . . may have an impact upon . . . subsidiary issues constructed
from Azzarello, such as the availability of negligence-derived defenses,” it went on to note that it
did “not purport to either approve or disapprove [of] prior decisional law, or available
alternatives suggested by commentators or the Restatements, relating to” such issues. Id. at 432.
Instead, the court explained, “[t]he common law regarding these related considerations should
develop within the proper factual contexts against the background of targeted advocacy.” Id.
In this Court’s view, Tincher cannot be read as doing away with the traditional
limitations placed on the admissibility of evidence of a product user’s alleged negligence. These
limitations originate in comment n of Section 402A of the Second Restatement, which provides
that “[c]ontributory negligence of the plaintiff is not a defense when such negligence consists
merely in a failure to discover the defect in the product, or guard against the possibility of its
existence.” Restatement (Second) of Torts, Section 402A cmt. n. The Supreme Court of
Pennsylvania first adopted the principles in comment n three years before it decided Azzarello in
McCown v. Int’l Harvester Co., 342 A.2d 381, 382 (1975). The McCown Court’s rejection of
contributory negligence as a defense in products liability cases was not premised on maintaining
“doctrinal separation” between strict liability and negligence. Tincher, 104 A.3d at 369 n.14
(explaining that “doctrinal separation played a noticeably less prominent role in [McCown]
relating to whether contributory negligence was an available defense to a strict liability claim”).
Policy concerns also animated the court’s decision. As the court emphasized, allowing
contributory negligence as a defense in products liability actions would “defeat one theoretical
basis for [the court’s] acceptance of Section 402A[,]” which is that manufacturers “impliedly
represent[]” and consumers, in turn, are entitled to assume, that products are safe for their
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intended use. Id. “One does not inspect a product for defects or guard against the possibility of
product defects when one assumes the item to be safe,” the court added. “The law should not
require such inspection or caution when it has accepted as reasonable the consumer’s
anticipation of safety.” Id.
These principles survive Tincher. Notwithstanding all of the changes wrought by
Tincher, the risk of harm still rests with the manufacturer or seller of the product and the focus
remains on the product. 104 A.3d at 419. The Tincher Court actually echoed its earlier statement
in McCown, explaining that, “in placing a product on the market, a manufacturer acts to design
(and manufacture) the product and, along with other distributors, to sell the product, including
making the product attractive for sale by making implicit representations of the product’s
safety.” Id. at 402. One such representation – perhaps the most important representation – is that
the product is not defective. Id. While the risk-utility analysis may invite inquiry into the conduct
and choices of the manufacturer vis-à-vis the product before the product is brought to market, the
“post-marketing” conduct of a particular user is irrelevant for the purposes of determining
whether the product itself is defective. See Johansen v. Makita U.S.A., Inc., 607 A.2d 637, 645
(N.J. 1992).
That is true even with respect to the fifth Wade factor. As the Third Circuit has explained,
“[t]he Wade factors set forth an objective test to determine whether a product is defective; the
‘user’ referred to in the factors is the ordinary consumer who purchases or uses the product.”
Surace, 111 F.3d at 1051. Thus, Plaintiff is correct that “the proper focus in applying the fifth
Wade factor [] is an objective inquiry into whether the class of ordinary purchasers of the
product could avoid injury through the exercise of care in use of the product, not whether this
particular [user] could have avoided this particular injury.” Id. “Put differently,” the Court of
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Appeals has explained, “the user’s ability to avoid injury by the exercise of care in the use of the
product appears to be a design factor that may justify a more or less exacting design depending
on the facts, but it is, in any case, not a vehicle for injecting a plaintiff’s (alleged) failure to
exercise due care into the case.”2 Id. So in this case, for example, Defendant could offer
testimony suggesting that users, in general, might be able to avoid the risk posed by the HCV by
always using jack stands or some other support devices while working underneath the vehicle.
However, Defendant cannot offer evidence of Mr. Borzik’s alleged own lack of due care to
negate Plaintiff’s attempt to establish that the valve was defective, as such evidence is irrelevant
to determining whether the potential risks of putting the product into the market outweighed the
potential utility of the product as designed. With these principles in mind, the Court will now
address the evidence of Mr. Borzik’s conduct upon which Defendant appears to intend to rely.
5. Power Gear Leveling System
Haldex argues that Mr. Borzik’s failure to use a Power Gear leveling system at the time
of the incident is admissible to show that Mr. Borzik was negligent. For the reasons set forth
above, however, the Court finds that, even if such conduct amounts to negligence, it is not
relevant to performing the risk-utility analysis. Nor does the Court find that Mr. Borzik’s failure
to use the Power Gear system is relevant to causation, as it does not amount to misuse or highly
reckless conduct.3 Reott, 55 A.3d at 1101 (internal quotation marks omitted) (explaining that
“highly reckless conduct is that which occurs when the plaintiff would have been injured despite
2.
The Court recognizes that the court in Sliker concluded that evidence of a plaintiff’s
conduct was relevant “to the factfinder’s application of the risk-utility standard, because the
user’s ability to avoid danger by the exercise of care in the use of the product will logically factor
into a reasonable manufacturer’s conduct.” 2015 WL 6735548 at *4. While the Court finds some
portions of Sliker persuasive, it parts ways with that opinion on this point.
3.
Assumption of the risk will be discussed infra.
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the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a
superseding cause”).
As a factual matter, Haldex’s argument also suffers from serious flaws. Contrary to what
Haldex contends, there is no evidence to suggest that the Power Gear system was designed to be
used to support the motorhome while working or performing maintenance underneath it. As
Plaintiff points out, the Power Gear manual states that the system “is a leveling system only and
is not intended to lift [the] coach completely off the ground.” Manual at 3 (emphasis in original).
The manual also advises users that they should not “attempt[] to lift [their] coach completely off
the ground (for example, to use this leveling system to change a tire)[.]” Since the system was
not intended to be used in the manner suggested by Defendant (i.e., to support the frame while
performing maintenance underneath the vehicle), it would be highly misleading for Haldex to be
allowed to argue that Mr. Borzik’s failure to use this system contributed to his death.
Accordingly, no references to the Power Gear system will be permitted at trial.
6. Jack Stands, Jacks, Blocks or Other Devices
Likewise, evidence that Mr. Borzik failed to use jack stands or some other devices to
support the vehicle is not relevant to the risk-utility analysis and fails to rise to the level
necessary to show misuse or highly reckless conduct. This theory also suffers from similar flaws
to Haldex’s theory regarding the use of the Power Gear leveling system. Haldex contends that
Mr. Borzik disregarded “instructions and warnings (including those contained in the vehicle
manuals) that advised him to place safety stands under the chassis before performing work under
the motor coach.” Def.’s Br. 25. But the “instructions and warnings” upon which Haldex
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appears4 to rely do not support the view that jack stands or the like should be used no matter the
type of maintenance being performed. “Rather,” the Court agrees with Plaintiff that “[the
maintenance manual]” – at least the portions of which the Court has been provided –
“recommends the use of jack stands under the frame only when the tires are lifted or jacked off
the ground or in an inspection where the suspension system is jacked or lifted to or toward its
upper limit.” Pl.’s Reply at 15 (emphasis in original). At the time of the incident, Mr. Borzik was
not performing any maintenance that required him to jack or lift any part of the coach or stretch
the suspension, so the sections of the manual upon which Haldex seems to be relying did not
apply. It would be highly misleading to allow Haldex to argue otherwise (unless, of course, it can
come forward with specific warnings that applied to the situation at hand that Mr. Borzik failed
to heed, which it has not done to this point).
7. Assumption of the Risk
Haldex also raises the defense of assumption of the risk, which, as already noted, is a
valid defense in a products liability case inasmuch as it goes to whether the alleged defect
actually caused the alleged harm. “‘To establish voluntary assumption of the risk,” however, “the
defendant must show that the buyer knew of a defect and yet voluntarily and unreasonably
proceeded to use the product.’” Reott, 55 A.3d at 1096 (quoting Gaudio v. Ford Motor Co., 976
A.2d 524, 541 (Pa. Super. Ct. 2009)).
Here, largely for the reasons already discussed, there is no evidence of which the Court
has been made aware that Mr. Borzik knew of the defect in the valve but nonetheless proceeded
to get underneath the vehicle. And contrary to Haldex’s contention, it does not appear that
working underneath a motorhome without jack stands or some other device supporting the
4.
The Court says appears to rely because Haldex has not specifically identified the
warnings that Mr. Borzik failed to heed.
16
vehicle presents such an obvious risk that Mr. Borzik’s knowledge of it can be presumed. As
Plaintiff points out, the maintenance manual even contemplates that some maintenance, similar
to that which Mr. Borzik was performing, can be done without the use of jack stands. Instead,
users are simply advised to chock the tires and apply the vehicle’s parking break. Accordingly,
the jury will not be instructed on the defense of assumption of the risk, as there is no evidence in
the record to support this theory.
8. Testimony Suggesting that Decedent “Took Risks”
Plaintiff argues that Haldex should be precluded from “introduc[ing] testimony [from two
of Mr. Borzik’s friends and his girlfriend] . . . that Mr. Borzik was a risk taker in various
recreational pursuits such as riding motorcycles or used bad judgment on the day of his death.”
Pl.’s Br. 8. To be more specific, Plaintiff anticipates that Defendant will attempt to introduce the
testimony (1) of Mr. Borzik’s friend, Tim Phillips, who testified in a deposition that he believed
Mr. Borzik was not wearing a helmet during a motor cycle accident in 2006; (2) of Mr. Borzik’s
friend, Mark Zuspan, who testified that he believed Mr. Borzik was a risk taker before his 2006
motorcycle accident and also that he wished Mr. Borzik had used a jack whenever he was
underneath the motorhome; and (3) of Mr. Borzik’s girlfriend, Sherri Whipkey, who testified that
she believed Mr. Borzik used poor judgment on the day of his death and that “she was absolutely
sure that when the rear wheel of the trailer was on a wheel chock presumably to change a tired
[sic], it placed pressure on the trailer hitch.” Id. Haldex counters that, as a general matter,
“[e]vidence that Mr. Borzik knew it was unsafe to work underneath the vehicle is relevant and
admissible to prove assumption of the risk, misuse, and causation.” Def.’s Br. 29. Haldex has
not, however, specifically responded to Plaintiff’s arguments regarding the particular portions of
testimony that Plaintiff contends are not admissible. Thus, it is unclear whether Haldex actually
17
intends to attempt to elicit any of the challenged testimony at trial; indeed, Haldex has noted that
it does not intend to introduce testimony and evidence regarding the 2006 motorcycle accident,
which could encompass some of the challenged testimony.
Assuming that Haldex does intend to introduce such testimony, however, the Court
agrees with Plaintiff that it is not admissible. While Haldex may well be correct that evidence of
Mr. Borzik’s state of mind is relevant to prove assumption of the risk, the challenged portions of
testimony do not actually reveal anything about Mr. Borzik’s state of mind or his subjective
understanding of the risks involved. Rather, the testimony of Mrs. Phillips and Zuspan related to
the 2006 motorcycle accident, making it a clear-cut example of inadmissible character evidence
under Fed. R. Evid. 404(a)(1). Moreover, the opinions of Mr. Zuspan and Ms. Whipkey
regarding whether Mr. Borzik used bad judgment on the day in question amount to inadmissible
lay opinion testimony under Fed. R. Evid. 701, as neither witness’s opinion would be helpful to
the jury’s understanding of the facts. Such testimony would, instead, usurp the jury’s role in
determining the facts. See Hirst, 544 F.3d at 226.
9. Prior Incidents and Lack of Prior Claims/Incidents
Plaintiff intends to offer “evidence of other Model CR HCV valves reported to have
leaked air or failing because of contamination.” Pl.’s Br. 9. According to Plaintiff, “[t]his
evidence is recorded on various Haldex documents[,]” and, although the evidence “does not
reveal any claim for injury or death,” it does depict “failures of the CR valves for reasons
consistent with [P]laintiff’s theory[.]” Id. Haldex responds that Plaintiff’s request for a ruling on
the admissibility of this evidence is premature because the Court has yet to receive evidence
regarding the existence and similarity of the prior incidents. The Court agrees with Haldex.
18
“[E]vidence of prior occurrences and accidents involving a product which is identical or
substantially similar to the product which has allegedly caused an injury has generally been held
to be admissible” in products liability cases.5 Barker v. Deere & Co., 60 F.3d 158, 162 (3d Cir.
1995) (quoting 2A Louis Frumer & Melvin Friedman, Products Liability § 18.02[1], at 18–14 to
18–17 (1995)). However, “the evidence is admissible only if the proponent demonstrates that the
accidents occurred under circumstances substantially similar to those at issue in the case at bar.”
Id. (citations omitted). Before the Court can make a “reasoned determination as to whether the
prior accidents are ‘substantially similar[,]’” it “must be apprised of the specific facts of [the]
previous accidents[.]” Id. at 163. “This foundational requirement . . . is especially important in
cases” like this one “where the evidence is proffered to show the existence of a design defect”
because “the jury is invited to infer from the presence of other accidents that a design defect
existed which contributed to the plaintiffs’ injuries.” Id. at 162-63.
To date, Plaintiff has not proffered any evidence upon which the Court can make a
determination as to whether the prior incidents involving other valves were similar to the
accident that resulted in Mr. Borzik’s death. Accordingly, the Court will defer ruling on
Plaintiff’s request to deem this evidence admissible until trial, prior to which time Plaintiff must
apprise the Court “of the specific facts of [the] previous accidents” to enable the Court to make a
reasoned decision on the issue of admissibility. Id. at 163.
On the other hand, Plaintiff seeks to preclude Haldex from introducing evidence of the
lack of prior claims/incidents involving the subject valve, arguing that reliable evidence
regarding the same does not exist. In general, “evidence concerning the absence of prior
5.
Although the parties both cite Pennsylvania law on this issue, it is actually governed by
federal law. See Forrest v. Beloit Corp., 424 F.3d 344, 354 (3d Cir. 2005); Barker, 60 F.3d at
161-62.
19
accidents can satisfy the relevance threshold established by Rule 402.” Forrest, 424 F.3d at 355.
“[S]uch evidence may be relevant to show (1) the absence of the alleged defect; (2) the lack of a
causal relationship between the injury and the defect or condition charged; and (3) the
nonexistence of an unduly dangerous situation.” Id. At the same time, however, such evidence,
“by its very nature, raises significant concerns regarding unfair prejudice to the plaintiff[.]” Id. at
358. For example, just because a witness “does not know of any prior accidents does not prove
that no such accidents occurred.” Id. at 357 (citation omitted). Also, “generalized assertions
concerning an alleged absence of accidents” can only be rebutted “with specific evidence of prior
occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases
where the defendant has not kept records concerning the safety history of its products.” Id.
Finally, “the absence of prior accidents may simply mean that the plaintiff was the first to be
injured” and it says nothing about how many “near-misses” may have occurred.” Id.
Thus, before admitting this type of evidence, “[d]istrict courts are required under Rule
403 to balance the probative value of such evidence against its likely prejudicial effect.” Id. at
358. “In an effort to ascertain probative value and minimize undue prejudice, other courts
considering such evidence have consistently insisted that the offering party lay a proper
foundation.” Id. In order to do so, the proponent of the testimony must establish three elements:
(a) similarity—the defendant must show that the proffered testimony relates to
substantially identical products used in similar circumstances; (b) breadth—the
defendant must provide the court with information concerning the number of prior
units sold and the extent of prior use; and (c) awareness—the defendant must
show that it would likely have known of prior accidents had they occurred.
Id.
While Plaintiff is correct that Haldex has not come forward with any evidence to
establish these elements in response to Plaintiff’s motion, Haldex explains that it “intends to
20
offer such testimony and other foundational evidence at trial.” Def.’s Br. 31-32. Haldex will be
permitted to attempt to do so. Thus, Plaintiff’s motion will be denied without prejudice. Plaintiff
may renew the motion at trial if Defendant cannot lay a proper foundation.
C. Conclusion
For the reasons hereinabove stated, Plaintiff’s motion will be GRANTED IN PART and
DENIED IN PART. An appropriate Order follows.
McVerry, S.J.
21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BONNIE RAPCHAK, Executrix of the Estate
of John E. Borzik, Deceased,
Plaintiff,
v.
HALDEX BRAKE PRODUCTS
CORPORATION,
Defendants.
)
)
)
) 2:13-cv-1307
)
)
)
)
)
)
)
)
)
ORDER
AND NOW, this 14th day of July, 2016, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that PLAINTIFF’S MOTIONS
IN LIMINE AND REQUEST FOR EVIDENTIARY RULINGS (ECF No. 188) is GRANTED
IN PART and DENIED IN PART as follows:
(1) Plaintiff’s requests to preclude “[a]ny argument or evidence suggesting or attempting
to prove contributory negligence on the part of decedent[;]” “[a]ny reference to or use
of documents produced by Power Gear relative to the use of a leveling system on the
motorhome which was not being used[;]” “[a]ny reference to or evidence that
decedent failed to use jack stands, jacks, blocks or other devices to support the
suspension when the engine was off and he was not changing a tire or jacking/raising
the suspension or frame of the motorhome[;]” “[a]ny reference to or evidence
calculated to argue assumption of the risk [;]” and “[a]ny reference to or evidence of
the beliefs or lay opinions of witnesses regarding decedent’s actions, judgment or
attitudes on dates preceding the subject incident or with his interaction with the
motorhome on the day of his death” are GRANTED;
(2) Plaintiff’s requests to preclude “[a]ny argument or evidence of using concepts of
negligence or due care on the part of the defendant in designing, making, and selling
the subject product, including evidence of compliance with state-of-the-art practices,
industry standards, or government regulations[;]” “[a]ny argument or evidence of
opinions or beliefs of Freightliner Custom Chassis Corporation (FCCC) regarding the
safety or quality of the subject HCV[;]” “[a]ny argument or evidence attempting to
prove that FCCC was negligent or at fault in its design of its chassis so as to be a
cause of the subject incident[;]” and “[a]ny evidence of a lack of prior claims of
injury or death related to a malfunctioning CR model valve” are DENIED
WITHOUT PREJUDICE to Plaintiff’s ability to re-raise these issues at trial; and
(3) Plaintiff’s motion to preclude “[a]ny reference or evidence of receipt by decedent of
collateral sources of money[;]” and “[a]ny reference to or evidence that decedent was
involved in a motorcycle collision years before and/or received compensation” is
DENIED AS MOOT.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:
John A. Caputo, Esquire
Email: ginny@jcaputo.com
Kenneth T. Newman, Esquire
Email: knewman@tthlaw.com
Steven G. Emerson, Esquire
Email: semerson@stinson.com
Thomas H. Davis, Esquire
Email: tdavis@stinson.com
Robert J. Behling, Esquire
Email: rbehling@dbbk.com
Eric D. Stubenvoll, Esquire
Email: estubenvoll@fisherkanaris.com
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