Our analysis of the problem has led us to this conclusion: in the context of alleged defects resulting from conscious design choices, as opposed to defects resulting from manufacturing flaws or inadvertent design errors, the § 402A notion of "defect" cannot be meaningfully discussed without the aid of the "unreasonably dangerous" concept, hence that concept is an important part of strict liability law. We shall explain this conclusion at some length below. At this point we note, however, that plaintiff's post trial motion will be denied.
II. The Limitation on Rebuttal Testimony
We consider next plaintiff's contention that we improperly limited his proffered rebuttal testimony.
As has been noted, plaintiff called Alfred Baccini on rebuttal to testify as an expert about his judgment as to, inter alia, the adequacy of the Toronado's design. After hearing plaintiff's proffer, we ruled that Mr. Baccini's testimony would be limited to rebutting specific points raised by GM's experts. In so ruling, we observed that to the extent that the evidence proffered was not specifically responsive to GM's case-in-chief, it was not properly offered as rebuttal, but should have been presented in plaintiff's case-in-chief. Moreover, to the extent that the evidence proffered would simply rehash plaintiff's basic theory about the defectiveness of the design, it was excludable as unnecessary cumulation.
After the voir dire on Mr. Baccini's qualifications, we further limited his testimony to crash performance and to the characteristics of fire in crash situations on the basis that he was not qualified to testify as an expert on the design of automobiles and the positioning of the bumper and gas tank. Plaintiff now asks that we reconsider those limiting rulings on the ground that they were prejudicial error. We find that the rulings were neither prejudicial nor erroneous.
Rule 403, Fed.R.Ev., authorizes a district judge to exclude relevant evidence which he finds, in his discretion, to be a "needless presentation of cumulative evidence." Rule 403 would, in itself, be a legally-sufficient ground to support the exclusion of needlessly cumulative evidence from either the case in chief or the rebuttal. The trial reached the rebuttal stage only after fourteen days of testimony. Both parties had adduced extensive expert testimony. To have permitted Mr. Baccini to present again defendant's general theory of the accident would have added nothing substantive. Although it might have been to plaintiff's tactical advantage to get a re-run of Mr. Severy's testimony before the jury in the wake of the lapse of time since he had testified,
the trial had been reported with daily transcript and we informed plaintiff's counsel that he could take as much time as he needed in summation to review Mr. Severy's testimony which he now had verbatim. Moreover, had we permitted cumulative rebuttal, we would have had to allow GM "equal time" in rejoinder, thus needlessly prolonging an already long trial.
We do not, however, rest our ruling solely on Rule 403; for there is no doubt about the power of a trial judge to regulate, in his sound discretion, the scope of rebuttal testimony.
While a district judge's discretionary power to limit rebuttal evidence or, more generally, to require an orderly presentation of a case has not been questioned since the passage of the Federal Rules of Evidence and the accompanying revision of Fed.R.Civ.P. 43 (a), it is unclear where the textual source of that power (if there need be any, which we doubt) lies. Until 1972, Rule 43(a) referred us generally to the rules of evidence applied in the courts of general jurisdiction of the forum state. Both plaintiff and defendant seem to have assumed that such was still the proper source of our authority, for they have cited mainly Pennsylvania cases. In fact, the new Federal Rules of Evidence neither refer us to state law on the order of presentation of evidence nor create a new federal rule on that subject.
However, it matters not at all whether we follow state or federal precedent on this issue; there is unanimous agreement that on rebuttal it is properly within the discretion of the trial judge to limit testimony to that which is precisely directed to rebutting new matter or new theories presented by the defendant's case-in-chief. See 6 Wigmore's Evidence § 1873 (3d Ed. 1940); Glen Alden Coal Co. v. Commissioners of Schuylkill County, 345 Pa. 159, 27 A.2d 239 (1942); Blair v. Turnpike Commission, 152 Pa.Super. 555, 33 A.2d 490 (1943); Feldman, Pennsylvania Trial Guide, § 9.1 (1973); French v. Hall, 119 U.S. 152, 30 L. Ed. 375, 7 S. Ct. 170 (1886); Hickok v. G.D. Searle & Co., 496 F.2d 444 (10th Cir. 1974); Hanrahan v. St. Vincent Hospital, 516 F.2d 300 (8th Cir. 1975). Conversely, the only cases in which the district court's discretion to exclude rebuttal testimony has been found to have been abused are those in which defendant's witnesses have presented an alternative theory or new facts or have otherwise created a need for a particularized response. See Weiss v. Chrysler Motors Corp., 515 F.2d 449 (2d Cir. 1975); Frankel v. Styer, 386 F.2d 151 (3d Cir. 1967); National Surety Corp. v. Heinbokel, 154 F.2d 266 (3d Cir. 1946). Such is not the case here.
We believe that we correctly applied the teaching of these authorities by requiring that plaintiff make specific offers of proof as to the points in GM's case that Mr. Baccini was prepared to rebut and by limiting the testimony to those points (concerning which Mr. Baccini was qualified to testify). Neither at trial, nor in its post trial motion, has plaintiff pointed to one area that was proper rebuttal (i.e., made necessary by defendants evidence) in which we forbade testimony. See also Fed.R.Ev. 702; United States v. Alker, 260 F.2d 135 (3d Cir. 1958), cert. denied, 359 U.S. 906, 3 L. Ed. 2d 571, 79 S. Ct. 579 (1959) ("admissibility of expert testimony . . . within the sound discretion of the trial judge"). We have also disposed of the cumulation point. Accordingly, plaintiff's "limitation of rebuttal" claim must be denied.
III. The "Unreasonably Dangerous" Concept and the Law of Strict Liability
Section 402A of the Restatement (Second) of Torts (1965) provides, in pertinent part:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused to the ultimate user . . . .
That provision, of course, both reflected and accelerated the development of strict liability in tort. Yet, clearly poised in the center of this strict liability provision and of the controversy about its future, stands the "unreasonably dangerous" language. For, whether the "unreasonably dangerous" requirement so "rings in negligence" (see n. 5, supra) as to undermine the policies which led to the birth of strict products liability is a subject of much dispute. It is not our purpose here to resolve that question by surveying the extensive literature, or by scrutinizing the words or syntax of § 402A and its comments. What we shall do is report our conclusions, forged in the trial crucible, about the difficulty of formulating a meaningful charge to guide a jury's determination of liability in conscious design choice cases where the unreasonably dangerous motion has been excised from § 402A.
We begin with the distinction between a manufacturing flaw and a design defect. The former concept relates to a product which was not manufactured in the manner that it was designed or intended to be. Guided by the excellent analysis of Professor Henderson, Judicial Review of Manufacturer's Conscious Design Choices: The Limits of Adjudication, 73 Colum.L.Rev. 1531, 1548 (1973), we parse the design defect category to distinguish inadvertent design errors and conscious design choices. Professor Henderson wrote:
At one end of the spectrum are risks of harm which originate in the inadvertent failure of the design engineer to appreciate adequately the implications of the various elements of his design, or to employ commonly understood and universally accepted engineering techniques to achieve the ends intended with regard to the product. At the other end of the spectrum are risks of harm which originate in the conscious decision of the design engineer to accept the risks associated with the intended design in exchange for increased benefits or reduced costs which the designer believes justify conscious acceptance of the risks.
We treat manufacturing flaws and inadvertent design errors in the same way. We do so not because they are both unintended, but because they are both subject to measurement against a built-in objective standard or norm of proper manufacture or design. Where, however, a conscious design choice has caused the injury, we are faced with quite a different problem; for there is no built-in objective standard by which the jury can measure the alleged defect. This result stems, at least in part, from the fact that a conscious design choice necessarily involves a trade-off among safety, utility, and cost. The trade-off may be obvious and may also be acceptable to the consumer. At the very least, it reflects the manufacturer's judgment of what would be acceptable if the terms of the trade-off were publicly known. However, the process of evaluating the trade-off, which represents the manufacturer's distillation of the forces of the marketplace, is a sophisticated one which complicates the process of products liability adjudication.
When a judge instructs a jury that its task is to determine the existence vel non of a "defect," he must recognize that the term "defect," in common parlance, implies that there is a standard from which one has deviated. But our experience teaches us that, in the conscious design choice cases, where there is no other (available) standard, excision of the unreasonably dangerous concept denudes § 402A of its only vehicle for infusing into the notion of "defect" a meaningful guide to its determination. Dean Wade has written that in (conscious) design defect cases, the concept of defective condition standing alone is inappropriate, and that it has no independent meaning and is apt to prove misleading. Wade, Strict Tort Liability of Manufacturers, 19 SW L.J. 15 (1965). Accord, Ross v. Up-Right, Inc., 402 F.2d 943 (5th Cir. 1968). We agree.
Professor Keeton believes that, in the area of design problems "defective" means unreasonably dangerous. Keeton, Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30, 32 (1973).
At least to the extent of concluding that in a conscious design choice case "defect" should be defined in terms of unreasonableness of danger, we concur.
As we see it, the unreasonably dangerous concept, properly formulated, posits a risk-utility balancing test pursuant to which the jury makes a judgment as to the social acceptability of the conscious design choice trade-off. We agree with Professor Henderson that
[in] cases involving liability for inadvertent design errors, the means employed to reach the intended ends are insufficient; in cases involving liability for conscious design choices, the intended ends themselves are out of step with prevailing social policies.