Opinion
Civil Action No. 97-CV-5569.
March 31, 2004
MEMORANDUM AND ORDER
Presently before the Court is Defendant's Motion for Judgment as a Matter of Law, or in the alternative, Motion for New Trial (Doc. 109). For the reasons set forth below, upon consideration of Defendant's Motion, Plaintiffs' Responses (Docs. 113, 141 142), Plaintiffs' Reply to Defendant's Documents which Defendant submitted at oral argument (Doc. 149), and Oral Argument held before this Court on May 6, 2002, the Court will deny Defendant's motion.
BACKGROUND
Plaintiffs commenced this strict liability action against Defendant to recover damages for bodily injury on September 2, 1997. The trial began on August 6, 2001, and the jury returned its verdict on August 24, 2001 in plaintiffs' favor. Thereafter, Defendant filed a motion for judgment as a matter of law, or in the alternative motion for new trial.
Jury rendered a verdict in favor of Plaintiff Donald Moyer in the amount of $2,450,000; Plaintiff Jane Moyer in the amount of $100,000; Plaintiff David Weidner in the amount of $2,700,000; Plaintiff Karen Weidner in the amount of $100,000; Plaintiff Michael Williams in the amount of $3,400,000; Plaintiff RebeccaWilliams in the amount of $100,000; Plaintiff Thomas Sechrist in the amount of $1,600,000, Plaintiff Patricia Sechrist in the amount of $100,000; Plaintiff Steve Kern in the amount of $2,800.00; and Plaintiff Bonnie Kern in the amount of $100,000.
LEGAL STANDARD
In reviewing a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 ("Rule 50"), the court must determine whether there is sufficient evidence upon which a reasonable jury could properly have reached its verdict. "Generally, a Rule 50 motion should be granted only if evidence is not sufficient for a jury reasonably to find liability."Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655, 665 (3d Cir. 2002) (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). The question the Court must consider is "whether, in viewing the evidence in the light most favorable to the losing party, no jury could decide in that person's favor." Gomez v. Allegheny Health Services, Inc., 71 F.3d 1079, 1083 (3d Cir. 1995) (citing Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993)). "The question is not whether there is literally no evidence supporting the unsuccessful party, but whether there is evidence upon which a reasonable jury could properly have found its verdict." Id.;see Goodman, 293 F.3d at 665. The Third Circuit has held that "judgment as a matter of law should be granted sparingly, a scintilla of evidence will not enable the non-movant to survive a Rule 50 motion." Goodman, 293 F.3d at 665. Furthermore, the key to surviving a party's Rule 50 motion is a legally sufficient evidentiary basis for the verdict.
The Defendant makes an alternative motion for a new trial. Federal Rules of Civil Procedure 59 ("Rule 59") provides that a new trial may be granted to any party on all or part of the issues in an action in which there has been a trial by jury. Under this rule, a court, in the exercise of discretion, may grant a new trial if, inter alia, the jury's verdict was against the weight of the evidence, or if substantial errors occurred in the admission or exclusion of evidence or in the charge of the jury. See Montgomery Ward Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). The standard to be applied by the trial varies according to the grounds for which relief is sought under Rule 50. See Henry v. Hess Oil Virgin Islands Corp., 163 F.R.D. 237, 242 (D.V.I. 1995). In general, courts will sustain jury verdicts if, drawing all reasonable inferences in favor of the prevailing party, there is a reasonable basis to uphold the verdict; courts will examine the record for evidence that could reasonably have led to the jury's verdict. See Nissim v. McNeil Consumer Products Co., 957 F. Supp. 600, 602-04 (E.D. Pa. 1997).
DISCUSSION
I. STATUTE OF LIMITATIONS
Under 42 PA. CONS. STAT. ANN. § 5524(2) (West 2002), "[a]n action to recover damages for injuries to the person . . . caused by the wrongful act . . . negligence of another" must be commenced within two years. See also Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991). Under Pennsylvania law, "the statute of limitations begins to run as soon as the right to institute and maintain a suit arises." Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983);See also Bohus, 950 F.2d at 924; Pitts v. Northern Telecom, Inc., 24 F. Supp.2d 437, 440-41 (E.D. Pa. 1998). "[Plaintiffs'] lack of knowledge, mistake, or misunderstanding do not toll the running to the statute of limitations." Pocono Int'l Raceway, Inc., 468 A.2d at 471. The exception to the statute of limitations is the "discovery rule." Id. The discovery rule "arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause," and it tolls the statute of limitations. Id.; See also Bohus, 950 F.2d at 924.
Under the discovery rule, "the statute of limitations begins to run as soon as 'the plaintiff knows, or reasonably should know, (1) that he has been injured, and (2) that his injury has been caused by another party's conduct.'" Bohus, 950 F.2d at 924 (footnote omitted) (citing Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 500 (Pa.Super. 1984)). "The plaintiff need not know the exact medical cause of the injury; . . . that his injury is due to another's negligent conduct; . . . or that he has a cause of action." Id. (citation omitted). The key to the discovery rule is not the "plaintiff's actual knowledge, but rather 'whether the knowledge was known, or through the exercise of diligence, knowable to [the] plaintiff.'" Id. (citingO'Brien v. Eli Lilly Co., 668 F.2d 704, 711 (3d Cir. 1981)). To determine whether a person exercised reasonable diligence is a question for the fact-finder, not the Court. Id. "The statute of limitations begins to run as soon as the plaintiff has discovered or, exercising reasonable diligence, should have discovered the injury and its cause." Id. (citing Stauffer v. Ebersole, 560 A.2d 816, 817 (Pa.Super. 1989)).
In this case, Defendant argues that the claims of Plaintiffs Moyer, Williams, Sechrist, and Kern are time-barred by Pennsylvania's two-year statute of limitations for personal injury claims because plaintiffs' injuries predated September 2, 1995. Def. Brief at 1. Defendant also argues that "in order for the [statute of] limitations period to be triggered, a plaintiff need not be in a position to learn that he has the right to sue the [D]efendant or to understand the 'medical cause of the injury.'" Def. Brief at 2. Furthermore, Defendant argues that the Plaintiffs misinterpreted the discovery rule and did not meet their burden of proving that the discovery rule tolled the statute of limitation on their claims. Def. Brief at 1-2.
Defendant contends that "if the plaintiff was in a position where, with the use of reasonable diligence, he could ascertain that he had an injury that was caused by someone else, that suffices to commence the running to the limitations period." Def. Brief at 3. According to the Defendant, Plaintiffs, Moyer, Williams, Kern, and Sechrist, could have learned prior to September 2, 1995, that they sustained injury to their hands and their injuries might be attributable to another party's conduct by exercising reasonable diligence. Id.
In response, Plaintiffs argue that the evidence does not support Defendant's contention that the Plaintiffs suffered a diagnosable or recognizable vibration related injury prior to September 2, 1995, because no one, including the doctors and nurses, could determine the cause of Plaintiffs' injuries or did not think they suffered any injuries. Pl. Brief at 1 3. In support of this argument, Plaintiffs make the following points: (1) Dr. Cherniack, Defendant's expert, recognized that it was difficult to determine the root cause of Plaintiffs' injuries; (2) Dr. Grundy who examined all the Plaintiffs was not able to diagnose a vibration related injury until September 1996; (3) Nurse Krotzer testified that she considered the possibility of vibration from the swager, but she did not recall discussing it with Mr. Kern; (4) Mr. Eckel was hired to evaluate all employees, and he did not believe that the Plaintiffs' complaints of hand soreness constituted an injury or that the swager was dangerous; (5) Dr. Wigley properly diagnosed Mr. Moyer in 1996 with symptoms related to vibration exposure; and (6) the second ergonomist, Ms. Stuart-Buttle, determined that the vibration level on the swager was high in 1996, and it was unsafe for the employees to continue to use it without an automatic feed. Id. at 1 3-4.
Plaintiffs also point out to this Court that the evidence shows that Dr. Grundy misdiagnosed Mr. Moyer with hereditary Raynauds in 1996. Also, he told Mr. Williams that his symptoms were related to twisting the wire at work. Furthermore, he told Mr. Sechrist that his symptoms were related to old age and a previous fall.
In this case, the Defendant made the same argument in its summary judgment motion that was before Judge Kauffman. Judge Kauffman held that the "question in this case . . . is when Plaintiffs, 'by the exercise of reasonable diligence,' could have learned that they suffer from HAVS." Moyer v. United Dominion Industries, Inc., No. CIV.A.97-5569, 1999 WL 391488, at 2 (E.D. Pa. May 25, 1999). Judge Kauffman stated in his opinion that:
This case was transferred to Judge Tucker after summary judgment stage.
. . . Plaintiffs have submitted evidence that the various sensations they experienced in their hands before September 2, 1995, might have been benign, temporary reactions to using the swaging machine, and did not necessarily indicate the presence of HAVS. Plaintiffs also have submitted evidence that despite seeking timely medical advice regarding their conditions, none of them was diagnosed with HAVS until after September 2, 1995. This evidence creates a genuine issue of material fact as to when, 'by the exercise of reasonable diligence,' Plaintiffs should have learned they were suffering symptoms of HAVS.Id. at *3. This Court submitted a special jury interrogatory to the jury, on the question of whether a claim of any Plaintiff was barred by the statute of limitations. See Jury Interrogatories Question 3. The jury decided the statute of limitations interrogatory in the Plaintiffs' favor.
The question this Court must decide now is whether "there is evidence upon which a reasonable jury could properly have found its verdict." Gomez, 71 F.3d at 1083. Defendant relies on Plaintiffs' testimony, testimony of David Graeff, Brush Wellman's maintenance manager, and the testimony of Jeffrey Eckel, the Workability consultant hired by Brush Wellman, as evidence to establish that the Plaintiffs' claims are time-barred.
Defendant argues Moyer's claim accrued no later than April 1995 for two reasons: (1) "'Moyer testified that he first noticed "aching and numbness, tingling, burning and stiffness in [his] fingers' while '[he] was doing the job' in August of 1990." Def. Brief at 3; and (2) Moyer filled out a discomfort survey of Workability on April 11, 1995, identifying the problems with his fingers, and he indicated that he believed his discomfort was caused by "the swager, and working with heavy wire." Id. Defendant is correct that Mr. Moyer testified to the above information at the end of Defendant's cross-examination, however, Defendant takes Mr. Moyer's testimony out of context.
Mr. Moyer's more complete testimony of the subject is as follows:
Q. And we have heard of a Mr. Jeff Eckels. Mr. Eckels asked you and some other people to fill out a Workability discomfort survey, correct?
A. Yes.
Q. And this one was dated April 11, 1995, is that right?
A. Yes.
Q. And sir, this is your handwriting that appears on this document, correct?
A. Yes.
Q. . . . [T]he following is a checklist to survey discomfort that you may be experiencing in various areas of the body. You checked shoulder, elbow, forearm, fingers, and upper back, is that right?
A. Yes.
Q. . . . . Put a check by the word that describes your problem. You checked aching and numbness, tingling, burning, and stiffness, is that right?
A. Yes.
Q. Were you having numbness, tingling, burning, and stiffness in your fingers?
A. Yes, while I was doing the job.
Q. And you say you first noticed this August of 1990, is that correct?
A. Yes.
Q. Number 5, sir: What do you think caused the problem? Could you read your answer?
A. R-7602, the swager, and working with heavy wire.
Q. What do you mean working with heavy wire?
A. The heavy-gauge wire, working with it, bending it, and putting the points on, and also feeding it through the die block and running the whole job.
Trial Tr. Day 2, at 52-53.
On redirect Mr. Moyer was asked by his counsel:
Q. . . . [W]e went again through those areas of using your hands at work that didn't necessarily involve the swager, pushing and pulling and twisting of the coil. And referring to those areas of the work, not the actual swaging, but the other areas, I would like to ask you: Before mid to late 1995 and when your pain started to get bad and then when you got the white finger in November, before that timeframe when you did those activities, the pushing and the pulling, not the swaging, did you have any unusual pain? I'm talking about pain that didn't go away when you went home at night after your shift.
A. Yes.
Q. From those activities?
A. Yes.
Q. Before 1996, before 1995?
A. Yes, just from working with the heavy wire.
Q. Okay.
A. And twisting the ties on. I mean they're — it's a physical job.
Q. So your hands would hurt?
A. Yes.
Trial Tr. Day 2, at 56-57.
Plaintiff Moyer also testified that before 1995, he did not think that he was injured from the swager, and no one told him before 1996 that the swager machine was emitting dangerous vibrations. Trial Tr. Day 1, at 65. Moyer also testified that he went to several doctors including the company doctors and nurse, and no one was able to diagnose his injuries or even give him an indication that his injuries were caused by another party's conduct. In fact, Dr. Grundy, Bush Wellman's doctor, misdiagnosed him with Raynaud's disease in January 1996.
Next, Defendant argues that the discovery rule cannot salvage Plaintiff Kern's claim because "the evidence indicates that if Kern had asked the [company] nurse, [Jane Krotzer] about the cause of his injury, he would have been possessed of the 'salient facts' underlying his claim in October 1993." Def.'s Brief. at 4. During Defendant's cross-examination of Mr. Kern, he testified that Nurse Krotzer neither mentioned to him the Raynaud's disease nor told him to get his hands evaluated. Trial Tr. Day 3, at 56-57. Mr. Kern also denied that he told Nurse Krotzer that his job involved vibration. Furthermore, Plaintiff Kern testified that his hands never turned white at work, and he did not think that his hand problems were work related. Trial Tr. Day 2, at 65. Nurse Krotzer provided the following testimony by deposition regarding Mr. Kern's hand complaints and examination:
Q. I see the word "Raynaud's" and a question mark. Can you explain that entry for us, please?
A. That's Raynaud's phenomenon and it can be caused by different things, one of which can be vibrating tools with the symptoms that he was describing. I just thought that might be a possibility that should be explored.
Q. . . . . How is it that you knew about Raynaud's, the fact that it could be caused by several things including, did you say vibrating tools?
A. Yes.
Q. How did you know that?
A. As an occupational health nurse with some experience I feel that you know that as part of your education and training and getting CEUs to maintain a license. They're just educational ways that you learn these types of things."
Q. What did you tell Mr. Kern when he gave you this information about these physical problems?
A. I don't remember what I told him, if I told him anything else than what I wrote there, that he should get it evaluated.
Trial Tr. Day 3, at 94-95.
Defendant also argues that Sechrist's claim accrued no later than June 1995 because he knew that (1) "he was having difficulty with his hands" and (2) "the swaging machines were causing several of the workers at the plant to have problems with their hands." Def. Brief at 5. Mr. Sechrist's trial testimony contravenes the Defendant's claim; he testified that he noticed his fingers turning white during the nineties when he would go out in the cold. Plaintiffs' Counsel asked Mr. Sechrist to compare the 1953 3F-2 die swager to the 1983 3F-2 die swager (the swager Plaintiffs complained about). Trial Tr. Day 2, at 88. Mr. Sechrist testified that "the swager that we are complaining about [1983 swager], you deal with a much heavier coil. It's bigger in diameter, anywhere from a half inch on up. The other one [1953 swager] you are going with a small wire which is like maybe not even a quarter of an inch. It goes down real small." Id. Mr. Sechrist also testified that although the same process was used for both swagers, the 1953 swager did not have the vibration like the 1983 swager because it used smaller metal.Id. Mr. Sechrist did not have problems related to the 1953 swager machine.
Sechrist worked on the swager full-time from 1982 to 1986 and part-time from 1990 until the trial. Trial Tr. Day 2, at 80.
Mr. Sechrist testified that Brush Wellman replaced the 1983 swager in1996, however, the new swager did not have an automatic feeder. Trial Tr. Day 2, at 88 105. The new 1996 swager vibrated just as bad as the 1983 swager until Brush Wellman installed an automatic feeder. Id. at 89-90. Plaintiff Sechrist testified that he went to see at least three doctors, Dr. Holms, Dr. Grundy, and Dr. Lipnack, to determine the cause of his hand problems, but the doctors told him his hand problems came from old age and from his fall in 1992, when he fractured his wrist. Id. 84-86. The evidence produced at trial contradicts Defendant's assertion that Mr. Sechrist knew his hand problems were related to the swager. For instance, in 1996, a work expert hired by Brush Wellman to evaluate the swager operation determined after a demonstration by Mr. Sechrist that the vibration was too great for a person's hands running it.Id. at 91.
In 1992, Mr. Sechrist fell and broke his left wrist while walking backwards. Trial Tr. Day 2, at 83.
Defendant contends that Plaintiff Williams's claim is time-barred because he knew that the 1983 swager was hurting his hands prior to December 1994, as he testified at trial that "he could feel his hands vibrating when he used the swager and the vibration caused him pain. Def. Brief at 4. However, Mr. Williams also testified that when he started seeing doctors around June 1995 about his hands, he was told that it was related to his shoulder problem. Furthermore, Mr. Williams recounted that Dr. Grundy told him around May 1996, that his hand problems were related to his duties on the bull block, the pulling and twisting of the wire. Id. at 127-128. Thereafter, Dr. Grundy diagnosed Mr. Williams with Raynaud's disease. Id. at 129.
Williams testified that he used the 1983 swager from 1992 until December 1994. Trial Tr. Day 3, at 120.
Plaintiff Williams saw several doctors relating to the pain he was having in his shoulder and neck. Trial Tr. Day 3, at 125-126. The doctors told him that his pain came from bending over the block. Id.
Defendant argues that David Graeff's testimony helps establish that the Plaintiffs knew in the fall of 1994 that certain bull block operators were complaining of hand problems. Def. Brief at 5. Mr. Graeff testified that he learned at the end of 1994 through the company nurse and doctor that "one person in particular had some problems." Trial Tr. Day 7, at 9-10. Mr. Graeff also testified that after learning about the bull block operators' complaint, Brush Wellman brought in Jeffrey Eckel, a Workability Consultant, "to evaluate the swaging operation and to assist us with training of let's [sic] say working hardening exercises and so forth, that possibly can be done to improve the conditions." Trial Tr. Day 7, at 12. Mr. Graeff's testimony does not provide the necessary evidence that the Defendant needs to establish that the Plaintiffs knew prior to September 2, 1995, they were suffering from HAVS.
Defendant claims that Mr. Eckel's testimony "is the nail in the coffin of [P]laintiffs' discovery rule argument." Def. Brief. at 6. This Court finds there is sufficient evidence on which the jury could find otherwise. Mr. Eckel testified that "Jim Carroll had told [him] that people were working on the bull blocks were experiencing problems with their hands and their wrists. He wanted me to take a close look at the job and see if there were any recommendations we could provide to lessen the problems out in the plant." Trial Tr. Day 8, at 8. Mr. Eckel further testified that in his analysis report he noted a number of risk factors involved in the bull block operators' job. Id. He testified that "there [was] some twisting on the hands, some bending. There were a number of things that were involved in the job that were fairly tough physically on the arms and the shoulders." Id. at 9-10. He also discussed that "there was a fair amount of vibration involved in pointing the coil, although the amount of time spent was minimal, since it was only about 30 seconds per coil that was pointed and only between 12 and 30 seconds were pointed per day." Id. at 11. Mr. Eckel made the following recommendations: "job rotation, so people weren't doing the same exact job all day long;" hand, wrist, and arm exercises "to bring more blood flow to those body parts just to prevent injury, but also to help them to heal and bring more blood and oxygen to the injured areas;" distribute a discomfort survey that the employees would fill out that would give us an idea of how much discomfort they felt;" distribute anti-vibration gloves to help suck up some of the vibration when they are pointing coils." Id. at 10-12.
On cross-examination, Mr. Eckel testified that twisting a wire could not cause vibration syndrome. Id. at 20. He also testified that Jim Carroll asked him to come to Brush Wellman to do injury prevention work of all employees, and he did not tell anyone who he examined that they had sustained an injury from bull block work or swager. Id. Furthermore, he testified that he did not inform anyone that they had suffered from vibration-related disease, and he did not refer anyone from the bull block to the company's doctor. Id.
The key fact in this case is that all the doctors, nurses, and ergonomist did not believe or were unable to diagnose before 1996, that the swager was causing the Plaintiffs injuries. It was not until Dr. Wigley properly diagnosed Mr. Moyer in 1996 that Mr. Williams or the other Plaintiffs knew or should have known that they were suffering from HAVS which was caused by the 1983 swager machine. Trial Tr. Day 1, at 72-73. Neither the testimony of the Plaintiffs nor the Defendant establishes that the Plaintiffs knew before September 2, 1995, that they suffered from HAVS and/or that their injuries might be attributable to another party's conduct. Moreover, the Plaintiffs' testimony shows that they exercised reasonable diligence to determine the cause of their injuries. Any discrepancy in the Plaintiffs' testimony or conflicts among the witnesses, were resolved by the jury in favor of the Plaintiffs. This Court concludes that there is sufficient evidence to support the jury's finding that the Plaintiffs neither knew nor should have known prior to September 2, 1995, that the swaging machine causes some form of vibration-related disease (i.e. HAVS). Accordingly, this Court will deny Defendant's motion for judgment as matter of law and its motion for new trial.
II. PLAINTIFFS' DESIGN DEFECT CLAIM
Defendant contends it is entitled to judgment as a matter of law or to a new trial. It is Defendant's position that: (1) "whatever risk from vibration inheres in the design of its swager is too slight to render the design unreasonably dangerous, considering the extraordinary remoteness of the risk and the very substantial cost inhering in implementation of the alternative design proposed by the plaintiffs," (2) any dangerous condition to which plaintiffs were exposed was a result of the intervening acts of misuse and grossly inadequate maintenance by Brush Wellman, (3) that evidence of the misuse and the prior perfect safety record of Fenn swager, was highly relevant to these issues and should not have been excluded, and (4) that there was insufficient evidence that Plaintiffs Sechrist and Williams were suffering from vibration-related injuries, and their claims should have been dismissed. Def. Brief at 6.
A. Court's Evidentiary Rulings Excluding Evidence
Defendant contends that this Court erred when it did not permit the Defendant to present evidence of Brush Wellman's misuse of and failure to maintain the swaging machine, or of the lack of prior claims, accidents or lawsuits alleging injury from use of Fenn swagers. See Def. Brief at 7. Defendant believes that this was highly relevant to the issue of causation and whether the swaging machine was defectively designed. Id. 1. Evidence of the Changed Condition of the Swager
Defendant argues that this Court excluded evidence that bore directly on the question whether the allegedly unsafe character of the swaging machine was the result of the "substantial changes" that took place after the machine left Defendant's control. See Def. Brief at 8. Defendant asserts that "in addition to failing to maintain the Fenn swaging machine in a safe condition, Brush Wellman misused it grievously." Def. Brief at 9. Defendant relies on David Greff, Walter Perun, and Dr. Cherniack's testimony to support its contentions.
Defendant argues that David Graeff's deposition supports its argument that this Court erroneously excluded evidence of Brush Wellman's misuse of and failure to maintain the swaging machine: (1) that the swager was neither properly maintained nor properly operated; at times, the machine was so over-used that the dies became red-hot and emitted smoke; (2) the dies and hammers were not adequately cleaned and maintained; (3) although the operators were instructed to incorporate specially-sized components that were appropriate for each project, they simply used the same hammers and dies for all their jobs, thus increasing the wear and tear on the machine; and (4) that the operators were over-using the swager. See Def. Brief at 8.
Defendant also argues that the deposition of Fenn's manufacturing manager, Walter Perun, confirmed Graeff's account. "Components within the machine were quite worn. * * * I remember the condition of the tooling was very pitted and chipped." He also testified that "when the swaging machine was traded back to Fenn in 1996, he examined it and was surprised to find that 'what the operators were using [as shims] were the identification tags from their coils and inserting these manila tags underneath the dies in order to try to compress the dies further to achieve a specific diameter that the machine or what they may require for their drawing application. * * * I recall pulling the die out and the red manila tags coming out with it." Def. Brief at 8.
Defendant contends that "the undisputed testimony of defense expert Dr. Cherniack, an improperly maintained machine vibrates much more than one that is properly cared for." Def. Brief at 9.
In this case, there was testimony that was placed before the jury in regard to Brush Wellman's maintenance of the swaging machine and the changes in the machine. While the Court did not permit the Defendant to offer evidence to the extent requested, this Court did not totally exclude the evidence on issues of misuse, failure to maintain, and changes in the swaging machine. During the trial, Defendant was not excluded from asking the Plaintiffs about using over-sized wires and changing or not changing the dies. Defense Counsel failed to ask any of the Plaintiffs whether or not they used a wire too big or too small or if they failed to change the dies. On cross-examination, Defendant asked Dr. David Roy Clark, a professor of industrial engineering at Kettering University, what would happen to the swaging machine if it was not properly maintained. See Trial Tr. Day 4, at 87-92 (August 9, 2001). Defense Counsel asked Dr. Clark the following questions:
Q. Is it important then, sir that in order to control hazards, maintenance is a consideration?
A. Maintenance is a consideration.
Q. Sir, when you said the machine had to have caused the problem, did you investigate maintenance?
A. It wasn't necessary.
Q. Did you investigate maintenance?
A. No.
Trial Tr. Day 4, at 91-92.
Furthermore, Defendant did inquire of Walter Perun on cross-examination:
Q. Mr. Perun, regarding your inspection in May of '95, just listen to this question and answer this question, please. Was the 1993 swaging machine operating as designed?
A. I would have to say it was not.
Q. Okay. Did you make a recommendation to Brush Wellman, as a result of your inspection regarding the machine?
A. Yes, I did.
Q. What was your recommendation, please?
A. To consider either rebuilding or replacing the unit.
Trial Tr. Day 6, at 44.
Defendant even conceded during oral argument that "some [lack maintenance, misuse, or over use] of this testimony was put before the jury." Oral Argument Tr. at 10. There was no prejudice because the Defendant was allowed to offer information on misuse, failure to maintain, or changes in the swaging machine. Therefore, this Court will deny Defendant's motion for judgment as a matter of law and its motion for new trial.
2. Evidence of the Lack of Prior Claims
Defendant contends that evidence of the lack of prior claims, accidents, or lawsuits should have been admitted for the purpose of demonstrating that the swager was not defective. See Def.Brief at 12-14.
First, there was evidence of the lack of prior claims introduced at trial. During the direct examination of John D. Bryzgel, former Vice President of the machinery division at Fenn, defense counsel questioned Mr. Bryzgel about the thousands of swaging machines sold by Fenn since 1950. Trial Tr. Day 7, AM Session at 37. Mr. Bryzgel also testified that he never met a swaging machine operator who had HAVS. Id. at 73. He further testified that a very small percentage, less than five percent, of swaging machines Fenn sold had automatic feeds. Mr. Bryzgel testified that the majority of the swaging machines are sold with hand feeds. Id. Moreover, Mr. Bryzgel testified that no purchaser of Fenn swaging machines has purchased an automatic feed because of vibration, but the reason why Fenn's customers purchased automatic feeds is because the customers are swaging very short pieces and to combat operator fatigue. Id.
Furthermore, Defendant presented to the jury similar evidence of lack of prior claims when David Graeff, Brush Wellman's maintenance manager, testified that before he worked for Brush Wellman, he worked for another company named Kawecki-Berylco where he ran the bull blocks and the swagers. Trial Tr. Day 7, PM session at 4. During his employment with Kawecki-Beryclo, he learned of no connection or claim between operating Fenn's swaging machines and HAVS. Id. Another example of how Defendant presented lack of prior claims evidence, is through the testimony of Craig Sherman, Brush Wellman's supervisor and manufacturing manager. Mr. Sherman testified that before May or June of 1995, he never received any complaints from any bull blocks operators that the swaging machines were causing physical problems or discomfort in their hands or fingers. Trial Tr. Day 7, PM session at 21.
Also, Dr. Cherniack, Plaintiffs' expert, testified that prior to the Plaintiffs, he ran into a swaging machine operator with HAVS. Trial Tr. Day 9, at 241. He further testified that he had "two colleagues, Nick Warren and Tim Morse, who were doing an extensive training program in ergonomics and had meetings with about 216 Connecticut businesses and industries. And I did ask them if they . . . had ever encountered swaging or any problems. They did talk to at least one facility." Id. at 242.
Moreover, while closing argument is not evidence, during Defense Counsel's closing argument, he argued to the jury that there was no evidence of prior claims, and Fenn should not be held liable for Plaintiffs' injuries, which acknowledges his awareness of evidence presented during the trial. This Court did not exclude the evidence on these claims, as evidence regarding these claims was presented. Accordingly, this Court will deny Defendant's motion for judgment as a matter of law and motion for new trial.
B. Design Defect
Defendant submits that it is not liable on a design defect theory, "because it has shown that the Plaintiffs' injuries were due not to the design or condition of the swager at the time it was sold by Fenn, but rather to the intervening misuse and improper maintenance by Brush Wellman." Def. Brief at 14. Defendant contends that: (1) it was clear from the available evidence that the Plaintiffs' injuries would not have occurred but for the intervening misuse and improper maintenance; (2) even if those factors were reasonably foreseeable to Fenn, that fact cannot rescue Plaintiffs' claim; and (3) such misuse and lack of maintenance were not in fact foreseeable. Def. Brief at 15.
1. Superseding Cause
Defendant argues that Brush Wellman's misuse and lack of maintenance of the swaging machine was a superseding cause of Plaintiffs' injuries. Def. Brief at 15. In support of this argument, Defendant contends that "the fact that four of the five plaintiffs' symptoms became manifest within a short period strongly supports the inference that any dangerous characteristics of the swager were the direct result of Brush Wellman's abuse of the machine and failure to maintain it." Def. Brief at 16. In further support of Defendant's argument, Defendant contends that a new swager does not emit a dangerous level of vibration, and Defendant cites to Carol Stuart-Battle and Dr. Bernard Martin's testimony in support of its contention. Defendant also argues that "jamming an oversized coil into a machine that is not built to accommodate it plainly constitutes an 'abnormal' use. Id. at 18.
"A superseding cause is an act of a third party or other force which, by its intervention, prevents that actor from being liable for harm to another caused by his antecedent conduct." Klages v. General Ordinance Equip. Corp., 367 A.2d 304, 313 ( Pa. Super. 1976); See also Parks v. AlliedSignal Inc., 113 F.3d 1327, 1334 n. 5 (3d Cir. 1997). A third party's action or other force may constitute a superseding cause and thus relieve the defendant of liability where it is in hindsight "so extraordinary as to not have been reasonably foreseeable." Parks, 113 F.3d at 1334.
In this matter, Defendant is arguing that the misuse and lack of maintenance were the superseding cause. During trial, Defendant made the same arguments to the jury, but the jury rejected these arguments. Defendant contends that if you take Dr. Cherniack's testimony and all of Plaintiffs' allegations at face value, this Court should make the logical inference that "the misuse of the swager caused a substantial change in its condition at that time, and that it was the change in condition that triggered [P]laintiffs' injuries." Def. Brief at 16. Defense Counsel asked Dr. Cherniack "[g]iven those dates that these gentlemen worked on bull blocks and swaging machines and the dates of their complaints, does that have any significance in your analysis of this matter." Trial Tr. Day 9, at 114-115. Dr. Cherniack testified that:
And as I say, from the very beginning it has been very troubling because it seemed — I mean I fully believe that some of these symptoms are very real. Maybe all the symptoms — I think all the symptoms are real whether they're due to vibration or not. And as I say, in two cases we have objective vasospasm. And I have to conclude that vasospasm is related to the swaging process because it's a common denominator. But what is striking about it is that it occurs in a fairly narrow period of time. And so I have to assume this is something unusual going on in that period of time. Something has to have changed.Id. at 117. This inference that the Defendant is asking this Court to draw was considered by the jury and either rejected outright or resolved in the favor of Plaintiffs.
Carol Stuart-Buttle and Dr. Bernard Martin did not testify that the new swager emitted no vibration, but they testified that the new swager emitted some level of vibration. Mrs. Stuart-Buttle testified that the new swager emitted vibration, but she could not say if it was a dangerous level according to the American National Standards Institute ("ANSI") because ANSI didn't have a standard for this type of short vibration. Videotape Deposition at 37-38. In Dr. Martin's report, he stated that "the level of vibration measured on the coil [was] high," however, he looked at several factors to evaluate the severity of exposure. Dr. Bernard J. Martin, Swager Test Report at 4. Dr. Martin also stated in his report that to the best of his knowledge, "there is no data concerning the health effects associated with extremely short vibration exposure separated by long non-exposure periods." Dr. Bernard J. Martin, Swager Test Report at 4.
In this case, Defendant has not produced any evidence to establish that there was a superseding or intervening cause. Defendant is only rehashing the same arguments that it has made throughout this case and at trial. After reviewing the entire record and the parties' brief, this Court cannot find as a matter of law there was a superseding or intervening cause.
2. Foreseeability
Defendant asserts that Plaintiffs' foreseeabilityargument cannot salavage their claim because "Brush Wellman's misuse of and failure to maintain the swager were foreseeable." Def. Brief at 18. Defendant contends that under Pennsylvania law that "manufacturers are 'not liable for defects caused by normal wear-and-tear or misuse of a product by its purchaser, however foreseeable these events might be.'" See Def. Brief at 18 (citing Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914, 922 (Pa. 1974)). During oral argument, Plaintiffs argued that foreseeability is not relevant in this case because there is no evidence of superseding cause. See Oral Argument at 62-63.
Under Pennsylvania law, a court does not have to reach the issue of foreseeability, unless it finds that there was a superseding or intervening cause. See Parks, 113 F.3d at 1334. For reasons previously stated, this Court does not find as a matter of law there was a superseding or intervening cause. Thus, this Court will not discuss the issue of foreseeability. C. Risk-Utility Analysis
Assuming arguendo that Brush Wellman's misuse and/or lack of maintenance of the swager was a superseding or intervening cause, the next question becomes whether or not Brush Wellman's misuse and/or lack of use was foreseeable. "A reasonably foreseeable intervening act cannot 'satisfy the requirements of a superseding cause.'" Parks, 113 F.3d at 1334 (citing Klages, 367 A.2d at 313). Defendant has not produced evidence to prove to this Court as a matter of law that they are entitled to judgment or a new trial. During the trial, Defendant made this argument to the jury, and the jury rejected it. Moreover, it was reasonably foreseeable to Defendant that one of its customers would not properly maintain the swager; would not properly change the dies; and would try to swage an over-size coil. Defendant's duty does extend beyond foreseeing the careful uses, and Defendant may not simply ignore hazards associated with failing to properly maintain the swager because the Defendant gave the customer a manual on maintenance. The Defendant must give due consideration to the likelihood that a customer, like Brush Wellman, would not properly maintain the swager and failing to maintain may lead to excessive vibration, which would cause HAVS.
Defendant next argues that the swaging machine was not unreasonably dangerous. Defendant contends that each of the seven factors in the risk-utility analysis is present in this case and the Court should enter judgment as a matter of law. See Def. Brief at 23. In response, Plaintiffs contend that the decision by this Court to submit the question of whether the 3F2 die swager was defective to the jury was appropriate because the risk utility analysis weighed in favor of the Plaintiffs. See Pl. Brief at 19.
The question of whether a product is unreasonably dangerous is a question of law. Azzarello v. Black Brothers, 391 A.2d 1020, 1026 (Pa. 1978). In answering this question, this Court had to make a social policy determination and act as both a social philosopher and a risk-utility economic analyst. Fitzpatrick v. Madonna, 623 A.2d 322, 324 (Pa.Super. 1993). Pennsylvania's Superior Court has identified certain factors that may be considered in making the threshold risk-utility analysis: "the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design." Dambacher by Dambacher v. Mallis, 485 A.2d 408, 423 n. 5 (Pa.Super. 1984) (citation omitted). Pennsylvania's Superior Court also cited seven additional factors to be considered:
(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 avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and (7) the feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance.Surace v. Caterpillar, Inc., 111 F.3d 1039, 1046 (3d Cir. 1997). See also Riley v. Warren Mfg., 688 A.2d 221, 224-225 (Pa.Super. 1997).
When a court makes a risk-utility determination, a court must balance "the utility of the product against the seriousness and likelihood of the injury and the availability of precautions that, though not foolproof, might prevent the injury." Burch v. Sears, Roebuck Co., 467 A.2d 615, 618 (Pa.Super. 1983) (citation omitted). Furthermore, at the risk-utility stage, this Court is required to view the evidence in a light most favorable to the plaintiffs. Id. at 618-19.
In this case, Plaintiffs do not dispute the fact that a swager is useful and that there is no substitute product for a swager.See Pl. Brief at 19. Plaintiffs argue that there were no safety features incorporated in the swager, for example no automatic feeder, no warnings related to the vibration exposure, and the inexpensiveness of an automatic feeder. This Court evaluated each of the factors set forth by the Superior Court and determined that the swager, as designed without an automatic feeder, was unreasonably dangerous. Moreover, the Court determined that the design defect issue should be submitted to a jury. A special interrogatory was prepared and the jury was asked, "Did the 1983 3F2 die swaging machine supplied by Fenn to Brush Wellman in 1983 contain every element necessary to make it safer for use?" The jury returned a verdict of no, in favor of Plaintiffs. Therefore, this Court declines to grant judgment as a matter of law or new trial.
D. Plaintiffs Williams and Sechrist's Injury
Defendant argues that Plaintiffs Williams and Sechrist did not prove that they were injured as a result of using the swaging machine. Defendant contends that both Plaintiffs suffered from medical problems that are totally unrelated to machine vibration.See Def. Brief at 25. In response, Plaintiffs argue that the swager did cause their injuries, and Plaintiffs cited to Dr. Jaeger's testimony to support their position.
During trial, there was a dispute of whether or not the Plaintiffs were injured from the swager. There was also a conflict in testimony between both experts, Dr. Cherniack and Dr. Jaeger. The issue was submitted to the jury to determine whether Plaintiffs were injured and which expert to believe. The jury heard and evaluated all evidence submitted on this issue and evaluated both expert's testimony. The jury returned a verdict for the Plaintiffs. Moreover, there was sufficient evidence, through testimony put forth at trial by Plaintiffs and Dr. Jaeger, that Plaintiffs Williams and Sechrist suffered from HAVS from the swager. Accordingly, Defendant is not entitled to judgment as a matter of law or a new trial.
III. FAILURE TO WARN A. Defendant's Knowledge in a Strict Product Liability Case
Defendant argues that the jury verdict cannot be upheld on the basis of Plaintiffs' failure to warn claim. Defendant contends that Plaintiffs' failure to warn claim has the following weaknesses: (1) the manufacturer has no duty to warn of an unknown, and not reasonably knowable risk in strict liability cases; (2) Defendant had no duty to warn because Brush Wellman knew that excessive vibration could cause HAVS; and (3) the jury verdict cannot stand because Plaintiffs did not demonstrate that the swager is unreasonably dangerous in the absence of a warning. See Def. Brief at 26-27.
Defendant argues that it neither knew nor should have known that the swaging machine could cause HAVS and was under no duty to warn the Plaintiffs of such a risk. See Def. Brief at 27. Defendant asserts that "Plaintiffs failed to meet their burden of demonstrating that it was known or foreseeable that swager use could cause HAVS." See Def. Brief at 28. Defendant argues that the exception to the general principle for warning cases was carved out in 1836 Callowhill St. v. Johnson Controls, Inc., 819 F. Supp. 460 (E.D. Pa. 1993); Fleck v. KDI Syslvan Pools, Inc., 981 F.2d 107 (3d Cir. 1992); and Ellis v. Chicago Bridge Iron Co., 545 A.2d 906, 912-13, 376 Pa. Super. 220, 230-33 (Pa.Super. 1988).
Defendant contends that the federal district court in 1836 Callowhill held that "in a strict products liability case, a duty to warn adheres where the manufacturer has knowledge or by the application of reasonable developed human skill and foresight should have knowledge of the presence of the ingredient and the danger." Id. at 23; See also Def. Brief at 27. In response, Plaintiffs' Counsel contends that 1836 Callowhill is not a strict product liability case. See Pl. Brief at 25. Defendant argues that there were two types of claims presented in 1836 Callowhill, strict liability and negligent failure to warn, and when the Court decided the issue of strict liability, the Court found that the manufacturer is not liable for failure to warn of an unforeseeable risk. See Oral Argument Tr. at 24.
Defendant also contends that in Fleck, the Third Circuit held that "the inquiry into the duty to warn revolves around whether the supplier knew or should have known of the danger, and that a manufacturer is not liable for a failure to warn for a risk that it could not reasonably foresee when it sold the product." Id. See also Def. Brief at 27. Furthermore, Defendant contends that in Ellis, the Pennsylvania Superior Court explained the difference between failure to warn cases and other kinds of strict liability cases. See Oral Arguments Tr. at 24. "[The Superior Court] said the liability arising from inadequate warnings is not strict in the same sense as the liability arising from a defect due to a fault in manufacture, since a determination of whether an object is unreasonably dangerous without a warning and is defective necessarily involves negligence principles such as reasonableness and foreseeability."Id. See also Def. Brief at 27.
In response, Plaintiffs argue that "Defendant's brief does not distinguish between the risk utility analysis performed by the trial court and the evidence presented at trial." See Pl. Brief at. 23. Plaintiffs also argue that "the law is clear that a defendant's knowledge could only be relevant to the trial courts initial determination whether the product could be unreasonably dangerous, under a risk utility analysis and thereafter it is not admissible at trial." Id.
This Court agrees with the Plaintiffs that Defendant fails to distinguish the role of the Court in making the risk-utility analysis as a matter of law and evidence presented at trial. Under Azzarello v. Black Brothers Co., 391 A.2d 1020 ( Pa. 1978), the Pennsylvania Supreme Court set forth the role of a trial court in making a risk-utility analysis. The Court held that:
In an effort to assure that a supplier of chattels would not become an insurer, the authors of the Restatement described the characteristic which would justify the imposition of liability in terms of a "defect." However, this word is not limited to its usual meaning i.e., a fault, flaw or blemish in its manufacture or fabrication. Rather the critical factor under this formulation is whether the product is "unreasonably dangerous." Under Restatement approach a product may be deemed to be "defective" even though it comports in all respects to its intended design. One difficulty arises from the fact that the term, "unreasonably dangerous" tends to suggest considerations which are usually identified with the law of negligence. . . .
It must be understood that the words, "unreasonably dangerous" have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier. It is for this reason that a mere change in terminology does not supply the answer to the basic question as to what instructions should be given to the jury. The answer to the proceeding question rests upon the mere fundamental question whether the determination as to the risk of loss is a decision to be made by the finder of fact or by the court. While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is present where a decision as to whether that condition justifies placing liability upon the supplier must be made. . . .
Thus the mere fact that we have approved Section 402A, and even if we agree that the phrase "unreasonably dangerous" serves a useful purpose in predicating liability in this area, it does not follow that this language should be used in framing the issues for the jury's consideration. Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy. Restated, the phrases "defective condition" and "unreasonably dangerous" as used in the Restatement formulation are terms of art invoked when strict liability is appropriate. It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution. A standard suggesting the existence of a "defect" if the article is unreasonably dangerous or not duly safe is inadequate to guide a lay jury in resolving these questions.Id. at 1024-26 (citations omitted and emphasis added).
Moreover, Defendant has misconstrued Pennsylvania's product liability jurisprudence. For example, the Defendant cited1836 Callowhill to support its argument that "a duty to warn adheres where the manufacturer has knowledge. . . ." 1836 Callowhill, 819 F. Supp. at 464 (quotations omitted). However, this is only partially correct. The Defendant fails to see that the issue of a Defendant's knowledge is only relevant when the Court makes a judicial determination whether, under the Plaintiffs' averments of facts, recovery would be justified (i.e. Plaintiff has made out a prima facie case of strict product liability). Judge Ludwig found in 1836 Callowhill that:
[t]here [was] no evidence that Johnson Controls knew or should have known of any defect of which it could have given warning. In response to Johnson Controls' summary judgment motion, plaintiffs argue that Johnson Controls should have known of the defect, since it 'has had prior claims involving its G-60 ignition control for the same type of failure. . . . On the present record, this argument is not fact-based. A fact set forth for the first time in a brief may not be considered on a Rule 56 motion.Id. The difference between 1836 Callowhill and this case is that Plaintiff in 1836 Callowhill failed to plead in its complaint that the Defendant had prior claims for the same type of failure, and the Court in 1836 Callowhill found that Plaintiff cannot set forth this particular fact for the first time in its summary judgment brief and would not consider this fact at summary judgment.
Thirdly, the problem that this Court has with the Defendant citing Fleck to support its position is that the Defendant looked to the Third Circuit's dicta under "Fleck's Comparative Negligence" heading and cited a quote in parentheses from theEllis case. This is another example of how the Defendant has misconstrued a particular holding to suit its purposes. InFleck, the plaintiff dove into a three-and-half foot deep above-ground swimming pool, broke his neck, and was rendered a quadriplegic. Fleck, 981 F.2d at 112. The swimming pool and its replacement pool liner did not have depth markers or "No Diving" warnings. Id. Plaintiff brought a cause of action contending that the homeowner was negligent and that the sellers of the pool and replacement liner were strictly liable for failing to warn. There were seven issues presented on appeal including duty to warn and comparative negligence. The Court of Appeals held that:
It is true that the determination of a duty to warn necessarily applies negligence principles, but it is the defendant's 'negligence' that is scrutinized. See Ellis, 545 A.2d at 913 (inquiry into duty to warn revolves around whether "the supplier knew, or . . . should have known, of the danger, or where the dangerous use, . . . was reasonably foreseeable"). Moreover, even if a plaintiff's negligence is in any way relevant to determine a duty to warn, that does not mean that it is also relevant to damages. The argument that [Plaintiff] is barred from recovery under the Comparative Negligence Act in this strict liability case, where the jury expressly found that the product sold was defective, is utterly without merit."Id.
Lastly, in Ellis, the appellant, Chicago Bridge and Iron ("CBI"), arranged for the shipment of seventy-two (72) trapezoidal or pie-shaped steel plates, which were fabricated in its plant in Greenville, Pennsylvania, to the United Arab Emirates by barge via the Port of Philadelphia. CBI packaged the 72 plates of steel in bundles or drafts of twelve sheets each, and each draft weighed 7000 pounds. CBI provided no lifting or shipping instructions with the drafts, nor did CBI mark the center of gravity of each draft. The decedent was a longshoreman. The workers used two loops of chain to lift the drafts. At the time of the fateful incident, the workers attempted to move two bundles at the same time onto the barge. The bundles weighed 14, 708 pounds and did not fit into the intended space, so the crane operator lifted the drafts while the workers attempted to reposition the steel by turning it around manually. While the bundles were being turned, the steel bumped the mast of a forklift truck located on the barge. The drafts slid out of the chains and fell onto the deck, crushing to death the decedent who had fallen under the steel.
The complaint included theories of negligence and strict liability. At trial, the negligence theory was abandoned, and the case proceeded on strict liability against CBI. The jury returned a verdict in favor of decedent's family in the amount of $750,000. The issue on appeal was "whether, under the undisputed facts as given, the trial court erred in allowing this case to go to the jury on the theory of strict liability. The determinative question is whether a product, not alleged to be defective for use in its intended purpose, can become defective as to intermediate shippers by the manufacturer's failure to provide lifting devices, instructions, or warnings." Ellis, 376 Pa. Super. at 224.
The Pennsylvania Superior Court held that:
Product liability law is a branch of the law of torts. The function of tort law is to shift the costs of an accident from a claimant to a defendant when the defendant is deemed "responsible" for the claimant's injuries. However, before a defendant may be deemed blameworthy, the court must identify a duty owed by that defendant which has been breached. A product seller or manufacturer should not, through the medium of tort law, be asked to pay damages merely because its product caused an injury. In failure to warn or instruct cases, recovery is sought on the theory that the product is "unreasonably dangerous" when unaccompanied by a warning with respect to nonobvious dangers inherent in the use of the product. The case at hand is not one of the use but merely one of the delivery of a product. It would have been properly based in negligence and not strict liability.Id. at 224-225. Furthermore, the Superior Court held that:
While the manufacturer's responsibility for injuries resulting from the lack of warning as a defect in the product is an expansion of the supplier's role as a guarantor of a product's safety, it was not intended to make the manufacturer an insurer of all injuries caused by the product. Since almost every industrial product would appear to have some potential for inflicting harm, and since instructions and warnings can not reasonably be required in the marketing of every product, a rule as to standards of conduct must be applied in determining the circumstances under which a warning or instruction is required so as to keep every product from being considered "defective" without the warning and to keep the manufacturer from assuming the role of insurer rather than guarantor of its product.Id. at 225-226. Defendant did correctly cite the holding inEllis that "liability arising from inadequate warnings is not 'strict' in the same sense as liability arising from a defect due to fault in manufacture. . . ." However if you read the opinion in its entirety, the Superior Court held that supplier and manufacturer should be held strictly liable under 402A when the supplier or manufacturer owes a duty. In Ellis, CBI did not owe the decedent a duty because the decedent was not using the product, but delivering the product. The difference between Ellis and this case is that this Court found that Defendant owed Plaintiffs a duty, and Plaintiff was using the swager and not delivering it.
Furthermore, the Defendant has consistently tried to inject negligence principles into this case, during oral argument and in Defendant's brief in support of its motion for new trial. During Oral Argument, Defendant argued that "under Pennsylvania law, a manufacturer is not liable for, in strict liability or in negligence for a failure to warn of a risk that is not foreseeable." See Oral Argument Tr. at 23. During the argument, Defendant conceded that "the cases do say that there is generally no room for foreseeability analysis and reasonableness analysis in a strict liability case. However, the cases from both the Pennsylvania state courts and the Pennsylvania federal courts have carved out an exception to the general principle for warning cases." Id. The Pennsylvania Supreme Court has held that:
[N]egligence concepts have no place in a case based on strict liability. Indeed, Section 402A of the Restatement (Second) of Torts makes it clear that the imposition of strict liability for a product is not affected by the fact that the manufacturer or other supplier has exercised "all possible care."Phillips v. Cricket Lighters, 841 A.2d 1000, 1006 (Pa. 2003) (citing Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 528 A.2d 590, 593 (Pa. 1987)). The Pennsylvania Superior Court also held that "what a defendant 'should have known' is a classic negligence inquiry which our courts have held unequivocally does not belong in a products liability action." Carrecter v. Colson Equipment Co., 499 A.2d 326, 330 (Pa.Super. 1985). Even though Carrecter was a inadequate warning case and the defendant asserted a "state of the art" defense, the Superior Court announced several holdings that established that any negligence concepts that are injected into a strict liability case are strictly prohibited. The Court held that:
[I]n the Pennsylvania law of products liability there is no room for a negligence based defense under the guise of the "state of the art.". . . the term "state of the art" encompasses various concepts, but the common functional feature of all "state of the art" arguments is that they focus on the knowledge of the defendant and/or the reasonableness of the defendant's conduct rather than on whether the product possessed the design features and/or warnings necessary to make it safe for its intended use. Therefore, we conclude that no magic inheres in the "state of the art" label and the "state of the art" jury charge should be treated like any other attempt to inject negligence into a products liability case.Id. at 331.
Moreover, the issue of Defendant's knowledge is only relevant in the Court's risk-utility analysis. After the trial court has completed a risk-utility analysis, the question of whether a product is defective reaches the jury. Surace v. Caterpillar, 111 F.3d 1039, 1044 (3d Cir. 1997). "When a products liability claim is pleaded the trial judge must make a threshold determination whether as a matter of social policy the case is appropriate for treatment under the rubric of products liability. In making this determination, the judge acts as a combination social philosopher and riskutility economic analyst."Ellis, 545 A.2d at 228 n. 6. (citing Carrecter v. Colson Equipment Co., 499 A.2d 326, 330 n. 7 (Pa.Super. 1985)). Therefore, this Court finds that 1836 Callowhill, Fleck, andEllis do not carve out an exception to the general principle for warning cases. Thus, Defendant's motion for new trial or in the alternative judgment as a matter of law regarding Plaintiffs' failure to warn claim is denied.
This Court understands the Defendant's argument that it did not know; it should not have known; and it was not reasonably foreseeable. In Phillips, Justice Saylor's concurring opinion stated some of the ambiguities and inconsistencies in the prevailing Pennsylvania strict product liability jurisprudence.Phillips, 841 A.2d at 1016. Justice Saylor stated that:
A primary legal question framed by this appeal is whether strict products liability requires that a plaintiff's injuries or loss be sustained during a product's use by an "intended user," or merely in the course of a use that was reasonably foreseeable to the manufacturer or supplier. Since I do not agree with the lead Justices that this question can be resolved by the rhetorical exclusion of negligence concepts from strict liability doctrine. . . .
Substantively, Pennsylvania's acceptance of risk-utility (or cost-benefit) balancing places it "very much in the mainstream of modern products. There are several ambiguities and inconsistencies in Pennsylvania'sprocedure, however, which render our law idiosyncratic.Id.
Next, Defendant contends that "if Plaintiffs did develop vibration-related injuries from the Fenn swager, those injuries are (1) the result of Brush Wellman's complete failure to maintain the machine and (2) so rare as to be idiosyncratic, and . . . were not reasonably foreseeable." See Def. Brief at 30. Once again, Defendant has failed to distinguish the trial court role during and prior to trial. Whether Plaintiffs' injuries were so rare to be idiosyncratic goes to this Court's duty to perform a risk-utility test prior to trial. This Court looked at the overall danger of the Fenn swager instead of a quantitative standard, i.e. how many people have been injured by the swager. Accordingly, this Court will deny Defendant's motion for judgment as a matter of law and motion for new trial.
B. Sophisticated User Doctrine
Defendant argues that "Plaintiffs' verdict cannot be salvaged on the theory that, although there was no known or knowable link between swaging and HAVS, there was an established connection between vibration generally and HAVS." Def. Brief at 30. Defendant contends that Brush Wellman was aware of the link between circulatory problems and vibrations, and is a sophisticated user, "precisely the sort of 'sophisticated user' that can be relied upon to give adequate warning to its employees." Id. at 31.
In response, Plaintiffs contend that there was recorded evidence, the 1975 Taylor Pelmear study, of known links between swaging and HAVS which should have been known by a manufacturer of a swager in 1983. Pl. Brief at 26. Plaintiffs argue that even though there were two of Brush Wellman's employees on its medical staff who knew "excessive vibration could cause Raynauds that does not show that they had knowledge that swaging emitted excessive vibration sufficient to cause the disease prior to 1996." Id.
Section 388 of the Restatement (Second) of Torts, also known as the sophisticated user doctrine, provides:
One who supplies directly or through a third person a chattel for another use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which it is supplied, if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Comment "n" states that a supplier's duty to warn is discharged by providing information about the product's dangerous propensities to a third person upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who may be exposed to its hazardous effects.See Philips v. A.P. Green Refractories Co., 630 A.2d 874, 882 (Pa.Super. 1993). Moreover, "under § 388, the supplier remains under a duty to warn end-users, but can rely on a knowledgeable employer to convey the warnings." Id. at 883.
In this case, it is clear that the Defendant's duty to warn was not properly discharged upon Brush Wellman. Defendant has failed to provide evidence that it provided sufficient warnings on the swager. Defendant contends that it warned Brush Wellman through its user manual and literature that the swager had to be maintained properly. See Def. Brief 30-31. John Bryzgel testified that the D-8 manual did not give any warning about vibrations because as far as Fenn was concerned, there was no problem with vibration. Trial Tr. Day 7, AM session at 73. However, Mr. Bryzgel contends that the manual says everything that you need to know to operate the swaging machine. Id. Even assuming that Defendant's manual was adequate to conveyto Brush Wellman that failure to maintain the swager would cause excessive vibration, it was not reasonable for the Defendant to rely upon Brush Wellman to warn its employees, specifically the Plaintiffs, that failing to maintain the swager would cause excessive vibration and lead to HAVS. Accordingly, the sophisticated user doctrine does not apply to Brush Wellman. Therefore, Defendant is not entitled to judgment as a matter of law or a new trial.
C. Plaintiff's Proof That the Swager Was Defective Without a Warning
Defendant argues that "in order to recover on a warning theory, a plaintiff must prove that the absence of a warning rendered the product unreasonably dangerous." Def. Brief at 32. Defendant contends that Plaintiffs did not meet their burden of demonstrating that a warning is warranted.
Defendant has raised this issue in its brief under the risk-utility analysis. This Court has already ruled that Plaintiffs have met their burden of proving that absent an automatic feeder, the swager was unreasonably dangerous. Under Pennsylvania law, this Court was required to do a riskutility analysis before it could submit the design defect issue to the jury. Once again, this Court did not err in determining that the swager was unreasonably dangerous, and the design defect issue was properly submitted to the jury. Therefore, Defendant is not entitled to judgment as a matter of law or a new trial.
IV. THE DAMAGE AWARDS RETURNED BY THE JURY
Defendant contends that the damage awards returned by the jury are not supported by the evidence and cannot stand for the following reasons: (1) none of the Plaintiffs has missed a day of work; (2) all of the Plaintiffs continue to work for Brush Wellman, and Brush Wellman has accommodated their injuries; (3) none of the Plaintiffs has complained of any difficulty completing his assigned responsibilities; and (4) Plaintiffs have already been compensated for the very limited medical expenses that they incurred as a result of their alleged injuries under Pennsylvania's workers' compensation law. See Def. Brief at 32-33.
Defendant contends that the jury awards are "plainly excessive and exorbitant," and this Court should grant a new trial on damages or in the alternative order a substantial remittitur.See Def. Brief at 34. Defendant also contends that the "jurors clearly felt sympathetic toward the plaintiffs, five men who have worked very hard at difficult, physically demanding jobs and who (to varying degrees) suffer from serious physical problems and injuries that have nothing to do with the swager or any other product manufactured by Fenn."
In response, Plaintiffs assert that only the fourth factor is applicable to this case, and all the Plaintiffs have sustained permanent injury. See Pl. Brief at 28-29. Plaintiffs contend that their current jobs involve continued stress on the hands such as lifting, pulling or pushing and pain associated therewith. Id. Plaintiffs also contend that the seriousness of the injury alone can support a large award, and the mere disparity between the verdict and the out-of-pocket expenses do not render a verdict excessive. Id. at 30. Plaintiffs argue that the key to their injuries is that there is no treatment or cure, and they would forever suffer from HAVS. Id. Furthermore, Plaintiffs contend that HAVS will worsen with time. Id. at 32.
"Judicial reduction of a jury award for compensatory damages is appropriate only when the award is plainly excessive and exorbitant in a particular case." Bey v. Sacks, 789 A.2d 232, 241-242 (Pa.Super. 2001) (citation omitted). The proper question for this Court to resolve is whether the award of damages fall within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake or corruption. Id. at 242 (citation omitted).
Pennsylvania's Superior Court has stated six factors that are to be considered in determining whether a verdict is excessive or exorbitant in light of the evidence at trial:
(1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of the out-of-pocket expenses; and (6) the amount of compensation demanded in the original complaint.Id. at 242 (citing Harding v. Consolidated Rail Corp., 620 A.2d 1185, 1193 (Pa.Super. 1993). The Superior Court also stated that "because every case is unique, the trial court should apply only those factors which are relevant to the particular case in question before determining if the verdict is excessive."Id. (citing Mineo v. Tancini, 502 A.2d 1300, 1305 ( Pa. Super. 1986)). The granting or refusal of a new trial because of excessiveness is within the discretion of this Court. Robert v. Chodoff, 393 A.2d 853, 871 (Pa.Super. 1978).
Defendant argues that all six factors support reduction of the jury's awards. Regarding the first factor, Defendant argues that Plaintiffs' injuries are not very severe because they were not maimed, disfigured, or dead. See Def. Brief at 34. The Court disagrees. There was testimony by Plaintiffs' medical expert, Dr. Jaeger, that Plaintiffs' injuries were severe and permanent. Dr. Jaeger also opined that there was no treatment or cure for HAVS. Although the Plaintiffs were not maimed, disfigured, or dead, Plaintiffs will suffer for the rest of their lives with severe pain in their hands. Eventually, Plaintiffs will have to discontinue working due to the severity of the pain.
As for the second factor, Defendant argues that Plaintiffs Williams, Sechrist, and Weidner exhibited no symptoms of HAVS, according to Dr.Cherniack. See Def. Brief at 34-35. Throughout the entire trial, there was a conflict of opinions between Dr. Cherniack and Dr. Jaeger. The jury heard both testimonies and resolved credibility in favor of Dr. Jaeger. Dr. Cherniack testified that it was difficult to determine the root cause of Plaintiffs' injuries. Dr. Wigley was the only doctor that properly diagnosed Plaintiffs with HAVS, and Dr. Jaeger testified that Plaintiffs did in fact expert symptoms of HAVS.
Defendant further argues, as to the third factor, although Dr. Jaeger testified that Plaintiffs' injuries are permanent, Plaintiffs' injuries are not serious and will not result in any decrease in life expectancy. See Def. Brief at 35. The testimony during trial showed that Plaintiffs have exhibited the symptoms of HAVS, fingers turning white, numbness, and pain in their hands. Dr. Jaeger testified that there is no treatment or cure to reverse HAVS, and Plaintiffs will have to endure the pain for life or until a cure or treatment is developed.
Moreover, as for the fourth factor, Defendant contends that Plaintiffs have at all times continued with their employment at Brush Wellman, have not lost any wages, or overtime. See Def. Brief at 35. In response, Plaintiffs argue that "future lost earnings capacity is not determined solely by comparing earnings before and after the injury." See Pl. Brief at 28. Plaintiffs contend that they have all sustained a permanent injury, and Dr. Jaeger has opined that no treatment will improve their conditions. Id. at 29. Plaintiffs also contend that Dr. Jaeger advised them that they should be precluded from any activities, from an occupational standpoint, which involve vibration, repetitive trauma or stress to the hands and continued exposure to these risk factors will increase the Plaintiffs' injuries. Id. In this case, even though there is evidence that Plaintiffs have not missed a substantial amount of work time, Plaintiffs have provided evidence through their vocational and actuarial experts that they have suffered and will suffer diminished earning capacities. The key fact in this case is that Plaintiffs cannot seek employment elsewhere due to their HAVS because each Plaintiff suffers constant pain in their hands and arms, and the pain is aggravated by any activity that requires the use of their hands.
Defendant argues as to the fifth factor that Plaintiffs' out-of-pocket expenses consist solely of small medical expenses that have been paid by Brush Wellman's workers' compensation insurance carrier. See Def. Brief at 35. This Court agrees with Defendant that Plaintiffs' out-ofpocket expenses are minimal, and the expenses were paid by workers' compensation. Even though the initial out-of-pocket expenses are low, Plaintiffs will accrue sufficient medical expenses in the future. Furthermore, since there is no treatment or cure, Plaintiffs could not have a large amount of out-of-pocket expenses, except doctor's visits and pain medication.
As for the sixth factor, Defendant argues that Plaintiffs' complaint stated only a demand in excess of one hundred thousand dollars. See Def. Brief at 35. This Court does not believe Plaintiffs' initial demand has any impact on the jury award. Plaintiffs' demand in excess of one hundred thousand dollars was to establish subject matter jurisdiction over this case. For the entire case, Defendant has known that each Plaintiff was seeking in excess of one million dollars.
Finally, if Defendant looks at each Plaintiff's jury award separately and how much each Plaintiff will receive per year, Defendant would see that the jury award was not excessive. Plaintiff Moyer, age 44 at the time of trial, received $1,499,790.00 in economic damages and $950,210.00 for non-economic damages, for a total of $2,450,000.00. This amounts to an award of approximately $29,694.00 per year in non-economic damages, and approximately$46,868.00 per year for economic damages for the years he suffered (5 years) and his remaining life expectancy (27 years). Moyer received one of the lowest amounts awarded because he had the least full-time exposure to the swager.
Plaintiff Williams, age 38 at the time of trial, received $2,270,731.00 in economic damages and $1,129,269.00 for non-economic damages, for a total of $3,400,000.00. This amounts to an award of approximately $25,665.00 per year in non-economic damages, and approximately $51,607.00 per year for economic damages for the years he suffered (5 years) and his remaining life expectancy (39 years). Plaintiffs Williams, Sechrist, and Kern had the longest periods of full-time exposure to the swager.
Plaintiff Kern, age 43 at the time of trial, received $1,536,230.00 in economic damages and $1,263,770.00 in non-economic damages, for a total of $2,800,000.00. This amounts to an award of approximately $38,296.00 per year in non-economic damages, and approximately $46,552.00 per year for economic damages for the years he suffered (5 years) and his remaining life expectancy (28 years).
Plaintiff Sechrist, age 64 at the time of trial, received $105,707.00 in economic damages and $1,494,293.00 for non-economic damages, for a total of $1,600,000.00. This amounts to an award of approximately $67,922.00 per year in non-economic damages, and approximately $4,805.00 per year for economic damages for the years he suffered (5 years) and his remaining life expectancy (17 years). Sechrist received one of the highest awards because he had the longest full-time exposure to the swager and was the most severely injured Plaintiffs.
Plaintiff Weidner, age 37 at the time of trial, received $2,083,522.00 in economic damages and $616,478.00.00 for non-economic damages, for a total of $2,700,000.00. This amounts to an award of approximately $13,401.00 per year in non-economic damages, and approximately $45,294.00 per year for economic damages for the years he suffered (5 years) and his remaining life expectancy (41 years). Weidner received one of the lowest amounts awarded because he had the least full-time exposure to the swager.
In this case, Plaintiffs provided evidence that they suffer severe pain in their hands and arms. As there is no prospect for a cure or improvement in condition, no relief from the pain, or lessening the diminution in the enjoyment of life, this Court cannot find that the jury award "shocks the sense of justice." Therefore, this Court finds that the jury award was fair, reasonable, and rationally based on the evidence introduced at trial. Moreover, Defendant has failed to provide evidence supporting its contention that the jury verdict was irrational and based on sympathy. Accordingly, Defendant's motion for remittitur and/or new trial will be denied.
CONCLUSION
Based on the foregoing reasons, this Court will deny Defendant's motion for judgment as a matter of law and in the alternative, motion for new trial. An appropriate order follows.