proceed on both a strict liability theory, in part, based on an unexplained malfunction, and a negligence theory. Defendants' reliance on Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120 (1984) for the proposition that the two theories are incompatible is misplaced. In Thompson, the plaintiff introduced evidence to show not only that the lessor of the crane was liable due to a defect in the crane, but also that the operator of the crane was himself negligent. The Pennsylvania Superior Court held that the crane operator's negligence may have been the cause of the accident rather than any alleged defect in the crane noting "where the plaintiff's strict liability case depends not upon the actual proof of a defect, but only upon the mere occurrence of a malfunction, it is inconsistent to permit him [the plaintiff] to proceed on the strict liability ground where he also advances a theory of human intervention which purportedly caused the harm." 473 A.2d at 125 (emphasis added). In the instant case, plaintiff's strict liability theory did not rely only upon an unexplained malfunction. To the contrary, plaintiff produced significant evidence to demonstrate the existence of specific defects in the smoke and heat detectors. In addition, unlike the situation in Thompson, the same defendants were legally responsible for both the allegedly negligent act and the defect. Therefore, regardless of whether the plaintiff succeeded on the negligence theory or the product liability theory, the defendants are liable.
Defendants next allege that certain comments made by the plaintiff's counsel in his closing arguments were so inflammatory as to require a new trial. Upon review of the record, I find that the plaintiff's counsel's comments were within the bounds of reason and not unduly inflammatory or prejudicial. See Smith v. Evans, 421 Pa. 247, 251, 219 A.2d 310, 312 (1966).
Defendants' arguments that the imposition of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 violates constitutional principles are without merit. Federal and state courts have found delay damages compatible with both federal and state constitutional law. See Insurance Federation of Pennsylvania, Inc. v. Supreme Court of Pennsylvania, 669 F.2d 112 (3d Cir.1982); Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S. Ct. 2002, 72 L. Ed. 2d 462 (1982). Plaintiff's non-constitutional arguments against imposition of delay damages are equally without merit. Defendant has failed to cite any authority to support its argument that delay damages are inappropriate for a case such as the one before this court.
Defendants also allege that the admission into evidence during the redirect examination of its expert witness of a quotation from a publication by the United States Department of Housing and Urban Development (HUD) was in error due to its irrelevancy and prejudicial impact. The portion of the publication read to the jury was critical of heat alarms.
Admission of the statement critical of heat detectors followed the earlier admission into evidence over plaintiff's objection of a statement by the same witness on cross-examination that HUD approved non-battery, plug-in smoke detectors. The contested statement was relevant to rebut the defendants' earlier suggestion that HUD had approved of the kind of devices involved in this case. In addition, the two statements taken together were not prejudicial to the defendant.
Furthermore, defendants may be said to have "opened the door" to evidence on the subject of HUD's views with regard to smoke and heat detectors thereby justifying the admission into evidence on redirect of the HUD excerpt. See United States v. Johnson, 502 F.2d 1373, 1376 (7th Cir.1974), cert. denied, 420 U.S. 977, 95 S. Ct. 1402, 43 L. Ed. 2d 657 (1975); United States v. Winston, 145 U.S. App. D.C. 67, 447 F.2d 1236, 1239-41 (D.C. Cir.1971); United States v. Lowe, 234 F.2d 919, 922 (3d Cir.1956), cert. denied, 352 U.S. 838, 77 S. Ct. 59, 1 L. Ed. 2d 56 (1956); Cleary, McCormick's Handbook of the Law of Evidence § 57 (2d ed. 1972); 1 Wigmore, Evidence § 15 (Tillers rev. 1983).
Defendants further object to the Court's allowing plaintiff's counsel to show defendants' expert witness, Gustav Hubert, two exhibits during cross-examination. These exhibits consisted of portions of instruction manuals which accompanied heat detectors sold to consumers by defendants. Neither of the instruction booklets, however, covered the particular smoke or heat detectors purchased by the plaintiff. The two booklets were used by the plaintiffs to contradict Mr. Hubert's testimony that the instruction manuals sent out with heat detectors sold to plaintiff contained a certain method for testing whether the detector was in working order. On direct examination, Mr. Hubert testified that although he had no instruction booklets with him he recalled that they contained instructions regarding the specific testing method. On cross-examination, he could not explain why these two manuals did not have the same information on the testing procedures alleged to be in the earlier booklets which he claimed did accompany the product sold to plaintiff. Defendants argue that neither of the instruction manuals should have been admitted since a proper foundation had not been established. In addition, defendants argue that one booklet which was issued after the sale of the heat detectors to the plaintiff should have been excluded pursuant to Rule 407 of the Federal Rules of Evidence.
Both of the instruction booklets were sufficiently authenticated. As to one of the manuals, Mr. Hubert testified that although it provided instructions for a different model than the ones purchased by the plaintiff the equipment was nonetheless similar. As to the other instruction manual a sufficient foundation was laid at a sidebar conference and through a deposition to show that it was issued by one of the defendants for similar heat alarms. Furthermore, the questioning of Mr. Hubert with regard to the presence or absence of the instructions for testing alarms in these booklets was probative as to his credibility and the reliability of his memory, especially in light of the fact that defendants had failed to produce the instruction booklets for the heat detectors purchased by the plaintiff.
Defendants' argument that the excerpts from the instruction manuals were inadmissible under Federal Rule of Evidence 407 is without merit. Rule 407 says that evidence of subsequent remedial measures may not be used to prove negligence or culpable conduct.
Neither of the two instruction manuals included evidence of subsequent remedial measures taken by the defendants or their predecessors in interest. Both manuals served the purpose of impeaching the credibility of what appeared to be a rather extraordinary claim of good memory in remembering what old instruction booklets said, even though the booklets themselves were unavailable and inconsistent with those instruction booklets which were available.
Defendants next argue that the court erred in not making a finding that the alarms were "unreasonably dangerous." In addition, the defendants assert that the alarms were not dangerous. Under Pennsylvania law, before submitting a products liability case to a jury, a court must itself make a determination that if the facts alleged by the plaintiff were true, the imposition of strict liability against the defendant would be justified. The issue of whether the risk of loss should be placed upon a defendant is a question of law to be decided with an eye toward the "social policy" underlying Pennsylvania products liability law. See Hammond v. International Harvester Co., 691 F.2d 646, 650 (3d Cir.1982); Baker v. Outboard Marine Corp., 595 F.2d 176, 181 (3d Cir.1979); Azzarello v. Black Brothers Co., 480 Pa. 547, 558, 391 A.2d 1020, 1025 (1978). A court need not explicitly tell the jury of its finding that the facts alleged by the plaintiff, if true, show that the product was unreasonably dangerous. See Wieder v. Towmotor Corp., 568 F. Supp. 1058, 1061 (E.D.Pa.1983), aff'd, 734 F.2d 9 (3d Cir.1984). Such a statement would only serve to confuse the jury, without contributing significantly to its deliberations. In fact, instructing the jury that the product must be found unreasonably dangerous may be reversible error under Pennsylvania law. See Baker, 595 F.2d at 176; Azzarello, 480 Pa. at 559-60, 391 A.2d at 1027. The court finds, based on the evidence introduced by the plaintiff, that the alarms were unreasonably dangerous. The purpose of a smoke or heat detector is to alert persons to life threatening danger thereby allowing them to escape. These alarms were unreasonably dangerous and defective in their design, their failure to include appropriate instructions for use and their malfunctioning in a fire. As a matter of social policy the risk of death due to defective heat and smoke detectors should be placed upon their manufacturer.
Defendants finally claim that plaintiff may not recover on a failure to warn theory since she testified that she had never received an instruction manual. Defendants allege that the plaintiff failed to offer sufficient evidence to show how additional warnings or reminders would have made a difference. I find that the plaintiff offered sufficient evidence to support a jury's verdict that she had received insufficient instructions relating to the use and testing of her smoke and heat detectors and that this failure to warn proximately caused the deaths of her husband and children.
Having found none of defendants' claims meritorious, defendants' post-trial motions are denied.