UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 27, 1985
ROBERTA MILLER EDWARDS, APPELLANT,
LIZ CLAIBORNE, INC. AND FAIRTEX MILLS
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 82-1567) District Judge: Honorable Louis H. Pollak
Before: ALDISERT, Chief Judge, SOLVITER, Circuit Judge, and MANSMANN, District Judge.*fn*
MEMORANDUM OPINION OF THE COURT
This opinion requires us to examine several contentions presented by an unsuccessful plaintiff in a product liability action in diversity. Her claim alleged that a terrycloth blouse, retailed by the defendant, Liz Claiborne, Inc., was defective in design and that the defendant failed to provide sufficient warnings of the blouse's unusually hazardous burning characteristics. She contends that she was burned when her blouse caught fire while she was removing a flaming dish of veal scallopina from her toaster oven. Liz Claiborne joined Fairtex Mills, Inc., the manufacturer of the blouse, as a third-party defendant. Special interrogatories were submitted to the jury which concluded the blouse was not defective.
Appellant argues that the court erred when it limited the testimony of the plaintiff's expert, Julius Hyman, when he sought to give an opinion whether the blouse was defective in that it burned too easily or was not accompanied by adequate warnings; in permitting Dr. Bruce LeBlanc, third-party defendant Fairtex Mills' expert witness, to perform an in-court experiment; in refusing to instruct the jury on a breach of warranty theory and the defendant's duty to warn; and in refusing to grant a new trial because of the prejudice resulting from defendant Fairtex Mills' counsel's closing remarks. After thoroughly examining the contentions presented in the briefs, we are persuaded that the memorandum opinion of Judge Louis Pollak adequately treated each of the contentions. Essentially for the reasons set forth by Judge Pollak in his opinion, App. 225a, we find that no reversible error was committed. However, we nevertheless wish to analyze in depth plaintiff's first contention.
A major part of appellant's brief is devoted to the testimony of her expert Julius Hyman. She argues, in the language of her brief, "the lower court erred when it limited plaintiff's expert testimony." It is essential to understand exactly what testimony was in fact excluded by the trial court and then to review the critical portions of the expert testimony that went to the jury.
Prior to the testimony of Mr. Hyman, the court made preliminary rulings as to what testimony would be outside the scope of proper examination. Following the testimony the court allowed the specific offerings to be placed in the record:
THE COURT: Do you want to put on the record now the questions you think I'd find outside the scope?
MS. WEINSTEIN: I would ask him for his expert opinion based on his experience, background, etc. whether he had an opinion with reasonable scientific certainty as to whether the blouse worn by Mrs. Edwards was safe to be worn by her.
THE COURT: I would exclude that
MS. WEINSTEIN: I would also ask him based upon his experience, testing, etc. as an expert whether he has an opinion with reasonable, scientific certainty as to the cause of the injuries sustained by Mrs. Edwards.
THE COURT: Yes, I would exclude that.
MS. WEINSTEIN: I would ask him based on his background, expertise, testing, etc., whether he had an opinion within a scientific certainty as to the with regard to fitness and safety of the garment which was worn by Mrs. Edwards.
THE COURT: I would not permit that either.
Let me say with respect to the second question that you asked, I assume that you're not asking about whether the witness had any opinion about whether the flames that were reported caused the burning that befell the plaintiff since I think that's already been stipulated to.
MS. WEINSTEIN: No. More in line with his findings after he tested the fabric whether the fabric was capable of inflicting that type of injury.
THE COURT: We'll exclude that.
MS. WEINSTEIN: And I would ask him based on his background, experience, etc., whether he had an opinion within a reasonable scientific certainty as to whether the blouse should have been accompanied with warnings as to its flammability.
THE COURT: I would exclude that.
MS. WEINSTEIN: And I would ask him that based upon his background, expertise, training, etc. whether he had an opinion within a scientific certainty as to the effects of the garment worn by the plaintiff on the injuries received.
THE COURT: I'll exclude that too.
Supp. App. at 70-71.
It is important to understand that the expert witness was not asked to testify as to design. "This is not a defective design case." Supp. App. at 47. Thus, we do not have the total exclusion of the testimony as to design as was present in Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir. 1979).
The testimony of Mr. Hyman included a laboratory report prepared by the Philadelphia College of Textile Science that represented the flammability characteristics of the fabric in question. Supp. App. at 31. he was permitted to testify that the fabric was in violation of the Textile fiber Labeling Act, id. at 32. that the higher percentage of cotton on the surface of the fabric "possibly increased the ease of ignition and the flame spread of the material because of the extra cotton," id., that the cotton fiber on the surface of the fabric was "extremely flammable, easy to ignite and having from three different surfaces in a row with no status it makes it easier to ignite and once ignited, cotton burns extremely fast." Id. at 33. He testified that he performed tests to determine the flammability of the fabric, id. at 34, and concluded "the flame just really moves very fast up and as a matter of fact, this is one of the fastest burning fabrics that i have witnessed, tested, in all my cases." Id. at 43. It was directly related to plaintiff's products liability theory of the case set forth in her complaint:
7. The aforesaid accident resulted from the sale and supply by the defendant of a product which was in a defective condition, dangerous to the users thereof, including the plaintiff herein, for which the defendant is liable to the plaintiff under strict liability principles.
App. at 20a. In her negligence count, she claimed that the defendant was negligent for " failing to warn plaintiff of the dangers of the fire involved in wearing the aforesaid blouse in the manner in which it was being worn, much to her detriment and loss." Id. at 21a. Moreover, the expert was permitted to give a scientific opinion as to the flammability of the particular garment:
BY MS. WEINSTEIN:
Q Based on your experience, your expertise, your background and your training, did you formulate an opinion with a reasonable scientific certainty as to the flammability of this particular garment as it conforms to the standard and in accordance with your test results?
Q What was that? What was your opinion?
A As I indicated before, the standard is a two-part standard both of which parts must fail to have the fabric designated as dangerously flammable, that is , Part I, that is must ignite within one second. If it doesn't, you don't even measure Part II. Part II stops in the middle then if its does ignite with one second, as my results did occur, every one of my test specimens did ignite in one second, then you go into a measure of flame travel and it must go four inches including the ignition time, the time elapsed to go five inches, break the cotton cord and then the test must be four seconds or less in this type of fabric.
To answer the question, it would fail the first part of the standard, my interpretation that it did ignite within one second so it failed the ignition part of the test. It would pass the same travel of four seconds, so does a piece of newspaper.
Supp. App. at 49-50.
We conclude that the district court did not abuse its discretion under Rule 702 Federal Rules of Evidence:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Mr. Hyman possessed a bachelor's degree in textile but his experience had been limited to military procurement, i.d. the purchase of suitable tents, airplane upholstery, and other items used by the military. He had no formal training in textiles beyond his bachelor's degree and in his position as Chief, standardization Section, Directorate of Clothing and Textiles for the Defense Personnel Support Center. He has been in a managerial capacity for the last six years. he had no formal training in the area of consumer textile products and his only experience was as a paid consultant in civil and criminal actions. Faced with this, the court ruled:
I think he's qualified to say what category pursuant to the standards these materials fall and to the extent that the standards themselves give some definition of usage, you can say that the standards mean, but I don't think he does. . . . I don't think he has any -- any demonstrated competence with respect to garments for ordinary wear and what's required of them.
We are of the view that our decision in Knight commands no other result. There the witness was qualified as an expert on the guarding of buttons used to operate machinery. We ruled that the fact that he had no experience in guards for elevator buttons was no reason for excluding his testimony. The question of expert qualifications from case to case depends on the facts of the specific cases. We are of the view that no error was committed by the district court in excluding the testimony here.
The judgment of the district court will be affirmed.