APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Gibbons, Forman, and Rosenn, Circuit Judges.
The dominant issue in this products liability case is whether or not the trial court erroneously precluded the defendant from presenting crucial evidence that it did not fabricate the injury-producing article. The complaint, based on diversity jurisdiction and alleging personal injuries to the minor plaintiff, was tried to a jury and a verdict returned in favor of the plaintiff Maggie Dudley, individually and as Guardian Ad Litem for James Dudley, a minor, in the sum of $40,000. The district court denied defendant's motions for a directed verdict, judgment notwithstanding the verdict, or in the alternative, for a new trial. The United States District Court for the District of New Jersey entered judgment against the defendant, South Jersey Metal, Inc. ("SJM"), and it has appealed. We reverse and remand for a new trial as to both liability and damages.
James Dudley ("Dudley") had been employed for about six months as a dishwasher and porter in a Horn & Hardart restaurant in Philadelphia, Pennsylvania. On June 23, 1969, while picking up a mat off the floor which he was cleaning, his right wrist came in contact with the underside of a metal dish table allegedly manufactured by South Jersey Metal. Dudley severely lacerated his wrist and severed three tendons and a nerve. In her original complaint, the plaintiff alleged that the injuries were the direct result of SJM's negligence in permitting a dangerous condition to exist in the table and in failing to repair or give warning of its presence. The complaint was subsequently amended to include an allegation of strict liability under section 402A of the Restatement (Second) of Torts (1965) as interpreted by the courts of Pennsylvania.
The evidence reveals that immediately after the accident Dudley was rushed to the Nazareth Hospital where he submitted to surgery and remained as an inpatient for five days. Because the wrist did not respond to treatment, he was admitted approximately eight weeks later to Hahnemann Hospital for additional surgery. Dudley returned to work at Horn & Hardart four months after the accident.
On appeal, SJM raises a number of issues, the principal one of which is that the trial judge precluded SJM from presenting certain critical evidence showing that the section of the dish table which caused Dudley's injury was added by someone other than the defendant subsequent to the delivery of the table to Horn & Hardart. This evidence might have been determinative of the case, for Pennsylvania law places upon the plaintiff the burden of proving that the product which caused his injury was in a defective condition at the time it left the hands of the seller. See Wojciechowski v. Long-Airdox Div. of Marmon Group, Inc., 488 F.2d 1111 (3d Cir. 1973). In his opening statement to the jury, counsel for SJM conceded that his client had in fact fabricated a stainless steel kitchen setup for Horn & Hardart which it installed in 1965 in accordance with certain specifications and drawings. The installation had been inspected and approved by Horn & Hardart. Counsel further stated that Joseph Wagner, SJM's general manager, would prove that the table built by SJM had been extended an additional twelve inches; that the extension and additional support brackets were added by someone other than SJM and that it was one of these brackets which caused Dudley's injuries.
Plaintiff did not object then to this line of defense but one and one-half days later, at the close of plaintiff's case, her counsel moved for an order under Rule 26(e) of the Federal Rules of Civil Procedure to preclude the defendant from presenting evidence that the table had been extended by someone other than SJM after the installation and that the supporting bracket which produced Dudley's injuries had been fabricated and installed by someone other than SJM. The district court granted plaintiff's motion and excluded the evidence. The court held that SJM had a duty under Rule 26(e)(2)(A) and possibly (B)*fn1 to notify the plaintiff timely of defendant's belief that it had not manufactured the injury-producing bracket. The court predicated the duty upon the defendant's failure to correct its contrary response to one of plaintiff's interrogatories in which defendant had indicated that it had manufactured and assembled the table and brackets in question. Since SJM learned subsequently that its answer to interrogatory No. 15 was incorrect or ambiguous, the district court held that "the defendant had a duty to amend its answer under rule 26." The trial judge viewed the failure to do so as a breach of duty which justified the sanctions he imposed in precluding defendant's proof of the alteration of the table. Although SJM was barred from presenting evidence of alteration to the jury, it was permitted to argue to the jury on summation that plaintiff had failed to carry her burden of proving that the table was substantially in the same condition at the time of the injury as it was when delivered and installed.
In response to plaintiff's motion to exclude the evidence of alteration, SJM contended in the district court - and contends on appeal - that it gave no answers during discovery which were inconsistent with SJM's theory that the table had been altered by Horn & Hardart after installation. The chief controversy concerns questions addressed to Wagner, president of SJM, at his deposition on September 21, 1972. Plaintiff believes that Wagner deliberately avoided informing her of the true nature of SJM's contemplated defense despite several opportunities to do so. When Wagner was shown snapshots of the table during his deposition, for example, he admitted that SJM fabricated the table without noting that SJM did not manufacture the bracket which produced the injury. Plaintiff views this response by Wagner as a willful misrepresentation by omission. Plaintiff also finds fault with Wagner's answer to the question how the bracket edge could have become sharp if it had not been sharp when installed: Wagner speculated that the bracket edge could have been sharpened as trash cans and other metal objects were squeezed under it over a period of years but he failed to seize on the question as an opportunity to deny making the particular bracket which allegedly caused the injury. As an additional instance of deception, plaintiff pointed to Wagner's acknowledgment that SJM had built the unit shown on a blueprint of the kitchen without commenting that the sharp bracket and the table extension which it supported were not indicated on the blueprint. Finally, plaintiff claimed that SJM's pre-trial conference position that "any defect relating to the equipment occurred after installation" was deliberately vague and ambiguous under the circumstances.
For its part, SJM vigorously denies any intent to mislead plaintiff. SJM insists that Wagner could not tell from the snapshots he was shown that the table had been altered and extended. At the time of the deposition, Wagner had not seen the table since its installation a number of years before and had no way of knowing that it had been altered. Furthermore, SJM points out, Wagner was never asked whether SJM had manufactured the particular part of the table which caused the injury; SJM argues that it had no duty to read into the question anything which was not asked. SJM claims that it did not learn of the alteration of the table until Wagner's visit to the Horn & Hardart restaurant in November 1972, subsequent to both Wagner's deposition and the pre-trial conference. In addition, SJM maintains that plaintiff was on notice, by reason of the blueprints furnished her, that SJM did not manufacture the injury-producing bracket: a comparison of the plans with the table as it existed at the time of the accident would have revealed, argues SJM, that Wagner had not admitted to manufacturing the bracket in question. Finally, SJM asserts in its brief in this court that at one of the pre-trial or settlement conferences, its attorney "indicated to plaintiff's counsel that one of SJM's defenses was that it did not make that part on which plaintiff was injured."
The trial judge predicated his order precluding SJM from producing evidence that it did not fabricate the extension to the dish table on 2(A) of Rule 26(e) which requires a party to timely amend a prior response to an interrogatory when he obtains information "that the response was incorrect when made." In reviewing Wagner's discovery responses as well as certain equivocal language in SJM's articulation of its factual contentions for the pre-trial order, the district court concluded in its memorandum opinion that SJM had given ambiguous answers during discovery and that the ambiguity was such as would make the responses "incorrect" within the meaning of Rule 26(e)(2)(A) because "this ambiguity apparently was intentional on the part of the defendant since confusion of the plaintiff as to trial tactics of the defendant was conceded at oral argument on the motion to be the reason for failure to amend."
In the view of the district court, additional evidence that SJM's failure to amend was deliberate was furnished "by the fact that at oral argument at trial defense counsel conceded that it was part of the defendant's strategy not to amend." The district court believed that SJM had determined to take advantage of the confusion caused by this strategy so that "by the time the concealment was brought to light, discovery had been completed, the issues had been narrowed, [plaintiff would have] prepared for trial in reliance on the fact that use would be the defense but not a subsequent product alteration."
On appeal, SJM protests that nothing in the record supports the district court's finding that it set out deliberately to mislead plaintiff. We have concluded that SJM is correct: our own careful review of the record reveals no evidence of willful deceit and counsel for plaintiff was unable at oral argument to refer us to any specific portions of the record which would lead to a contrary conclusion. SJM may be criticized for the ambiguity of its pleadings and the obscurity of Wagner's deposition responses, but plaintiff's counsel may himself also be held partially responsible for the misunderstanding since he had the benefit ...