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 ...