The plaintiff's remaining contentions pertain to several of my evidentiary rulings. He first argues I erred in permitting the defendant to introduce the 1971 American National Standards Institute ("A.N.S.I.") requirement B11.1 which placed the responsibility for installing point of operation safeguards upon the employer. (Tr. 158). It is plaintiff's contention that safety standards promulgated in 1971 are irrelevant to the issue of whether the press was defective when it was manufactured in 1954. I am not persuaded by this assertion. In accordance with Verge, the jury was instructed that among the factors it could consider in determining who was responsible for providing point of operation safeguards were the standards set forth in safety codes and regulations. (Tr. 534). The 1948 A.N.S.I. standards, which were in effect when the press was manufactured, did not explicitly place the responsibility for providing such safety devices upon any one party. Hence, the express mandate of the 1971 standards placing this obligation on the employer was relevant to the jury's determination in that it served to clarify the somewhat ambiguous standards promulgated in 1948.
After the 1971 standards were published, defendant undertook to mail a pamphlet entitled "B11.1 As We See It" to all of its known punch press users. The purpose of the mailing was to notify these users of their responsibilities under the revised A.N.S.I. standards. The plaintiff argues that the pamphlet was irrelevant to a determination of whether the punch press was a defective product and I therefore erred in admitting it during redirect examination of James A. Lewis, a Bliss employee. While I agree that the pamphlet did not directly relate to the issue of whether the punch press was defective, it was relevant to a matter broached by plaintiff's counsel during his cross-examination of Mr. Lewis. During his examination, counsel repeatedly raised the question of defendant's alleged indifference to the fact that employers were failing to provide adequate safeguards on its presses and that the unguarded presses were causing numerous injuries. (Tr. 239-45; 248-50, 253, 262-63). I therefore permitted the defendant to introduce the pamphlet on redirect examination to rebut plaintiff's assertions about its business practices. Since the evidence was pertinent to a collateral issue repeatedly raised by the plaintiff himself, I conclude that there was no error in permitting its introduction.
The plaintiff next contends I erred in refusing to permit him to cross-examine Mr. Lewis about a pamphlet that Bliss began sending to its customers in 1967. The pamphlet, entitled "Safety Precautions and Suggestions," detailed a number of ways for the user to safeguard the operation of the press. Plaintiff argues the pamphlet represents a subsequent remedial measure which was admissible under Fed.R.Evid. 407 to prove both defendant's awareness that its customers were not equipping the presses with adequate safety devices and the feasibility of providing such customers with safety instructions. Even accepting plaintiff's assertion that this pamphlet might properly have been admissible under rule 407, I concluded at trial and I reiterate here that its probative value was outweighed by its potentially prejudicial impact and it was therefore properly excluded under Fed.R.Evid. 403.
In his opening statement, defendant's counsel made clear his intention to call Thomas Gianni, an employee of Penn Construction Company, to testify he believed Penn to be responsible for providing point of operation safeguards and that it failed to do so simply because it was not economically feasible. (Tr. 208). In view of this representation I refused to allow the introduction of the pamphlet because if Gianni did so testify, it was clear the receipt of safety instructions by Penn would have been irrelevant to its failure to equip the press with adequate safety features. I did, however, grant plaintiff leave to renew his request if Gianni's testimony did not comport with counsel's opening statement. (Tr. 295). Significantly, no such request was made. Gianni did testify he understood it was Penn's responsibility to outfit the press with safety devices and that it failed to do so because it could not afford them. (Tr. 314). In light of this testimony, it is abundantly clear that the pamphlet's probative value was minimal. Penn was already aware of its obligation to provide point of operation safeguards and failed to do so for purely economic reasons. Thus, whether defendant could have or should have forwarded Penn the instruction manual is simply not relevant to the fact that the press in question was not equipped with safeguarding. I did not err in refusing to permit plaintiff to introduce this evidence.
Finally, plaintiff contends I erred allowing Gianni to testify that he understood it to be Penn's responsibility to provide point of operation safeguarding. (Tr. 314). This testimony clearly pertained to practicality and the custom of the industry which, under Verge, was relevant to the jury's determination of who was responsible for providing the safety devices.
For all of the foregoing reasons, plaintiff's post-trial motions will be denied.