On Appeal from the United States District Court for the Western District of Pennsylvania.
Garth and Sloviter, Circuit Judges, and Fisher, District Judge*fn*
In August 1978, Robert Brown became a member of the United States Army Reserve and, as part of his training, began learning how to operate a tractor-bulldozer. Initially, the training involved observation from the "buddy" seat to the right and forward of the operator's seat, which was not equipped with a protective canopy. While the tractor-bulldozer was being used to clear land - specifically, to push a pile of materials that included two trees - one of the trees came over the blade and over the top of the vehicle and struck him. Brown sustained severe crush injuries from the blow, which was of such force that it broke the seat as well.
Brown alleges that his injuries were caused by the defective design and inadequate warnings of the tractor-bulldozer, which was manufactured by Caterpillar Tractor Company for the Department of the Army. Using diversity of citizenship as the basis for federal jurisdiction, he sued Caterpillar under Pennsylvania law on theories of negligence, breach of express and implied warranties, and strict liability. The district court entered summary judgment for Caterpillar on the grounds that the bulldozer was not defective as a matter of law and that the company was insulated from liability by the "government contractor defense" because it had built the bulldozer to government specifications.
On appeal from summary judgment, however, this court concluded that there were genuine issues of material fact bearing on both issues and, accordingly, held that summary judgment was inappropriate. 696 F.2d 246 (3rd Cir. 1982) (Brown I). In our opinion in Brown I, we also addressed, inter alia, the threshold question of the scope of the government contractor defense. We concluded that the defense exists in Pennsylvania and is available against all of Brown's claims. 696 F.2d at 251-53.
On remand, Brown limited his theory of liability to strict liability under section 402A of the Restatement (Second) of Torts, and the case was bifurcated and tried as to liability. The trial court asked the jury to answer six special verdict questions, including whether the bulldozer was (1) defectively designed because it was sold without a protective device over the passenger seat and (2) defective when sold because Caterpillar failed to provide adequate warnings of the danger to occupants in land-clearing and tree removal operations. In its instructions to the jury, the trial court said, among other things, that there could be no liability for failure to warn if the Army was aware of the dangers involved in clearing land without a canopy and that there could be no liability for defective design if Caterpillar had offered to "retrofit" the bulldozer with a protective device. The trial court also refused Brown's request to instruct the jury that Caterpillar must prove that it had "carefully" executed the government contract and specifications in order successfully to invoke the government contractor defense. The jury found that the bulldozer had not been proved defective, as to either design or adequacy of warnings, and consequently did not reach the remaining four questions, which concerned proximate cause, strict compliance withe the government contract, the Army's awareness of the danger, and whether Caterpillar had warned the Army about the danger.
On appeal, Brown contends that the trial court's instructions to the jury were erroneous and prejudicial. Brown also maintains that the trial judge erred in repeatedly refusing to allow him to state his objections during cross-examination, and that certain remarks made by the trial judge in the presence of the jury gave the impression that the court favored the defendant and are grounds for a mistrial.
The tractor-bulldozer was manufactured and sold to the government by Caterpillar pursuant to a military contract and accompanying military specifications. It is not disputed that the specifications did not include a canopy or other protective device. However, the specifications did require the tractor to be "equipped with instruction plates or diagrams, including warnings and cautions, describing any special or ...