UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 11, 1985
ANDERS, STEPHEN, APPELLANT
GENERAL MOTORS CORPORATION
On Appeal From The United States District Court For the Eastern District of Pennsylvania (D.C. No. 83-4841), District Judge: Clarence C. Newcomer
BEFORE: GIBBONS and STAPLETON, Circuit Judges and BROTMAN, District Judge*fn*
MEMORANDUM OPINION OF THE COURT
STAPLETON, Circuit Judge :
Appellant was driving a General Motors car when it collided with a utility pole. He brought this diversity case in the United States District Court for the Eastern District of Pennsylvania claiming that he suffered injuries that he would not have sustained if the car had been "crashworthy." A jury returned a verdict against appellant. He seeks a new trial on three grounds.
Appellant first contends that the district court erred as a matter of law in choosing to apply the "crashworthiness" rule of Huddell v. Levin, 537 F.2d 726, 737 (3d Cir. 1976). In Huddell, we applied the law of New Jersey to a crashworthiness case and formulated the following standard:
First, in establishing that the design in question was defective, the plaintiff must offer proof of an alternative, safer design, practicable under the circumstances. . . . Second, the plaintiff must offer proof of what injuries, if any, would have resulted had the alternative, safer design been used. . . . Third, . . . the plaintiff must offer some method of establishing the extent of enhanced injuries attributable to the defective design.
Huddell, 537 F.2d at 737.
This crashworthiness standard is a subset of the strict liability doctrine of the Restatement (Second) of Torts § 402A (1965), but imposes on a plaintiff "more rigorous proof requirements than a typical section 402A action". Barris v. Bob's Drag Chutes & Equip., 685 F.2d 94, 99 (3d Cir. 1982). We have previously found the Huddell standard to be the standard most likely to be adopted by the Pennsylvania Supreme Court for crashworthiness cases. Jeng v. Witters, 452 F. Supp. 1349, 1355 (M.D. Pa. 1978), aff'd sub nom. General Motors Corp. v. Cheng, 591 F.2d 1334 (3d Cir. 1979), aff'd sub nom. Appeal of Jeng, 591 F.2d 1335 (3d Cir. 1979), aff'd, 591 F.2d 1335 (3d Cir. 1979). Accord, Barris, 685 F.2d at 99, and Olsen v. U.S., 521 F. Supp. 59, 64 (E.D. Pa. 1981), aff'd sub nom. Ford Motor Co. v. Cooper, 688 F.2d 820 (3d Cir. 1982), aff'd sub nom. Olsen v. Ford Motor Co., 688 F.2d 823 (3d Cir. 1982), cert. denied, 459 U.S. 1107 (1983). Appellant has given us no substantial reason to believe that the Pennsylvania Supreme Court would not apply the Huddell crashworthiness test to this case and we decline to alter our prediction. Since the trial judge's jury instructions faithfully tracked the teachings of Huddell, we find appellant's first contention to be without merit.
Appellant's second proffered ground for reversal is that the district court abused its discretion in admitting evidence of appellant's consumption of alcohol prior to the accident. He asserts that any probative value of this evidence is outweighed by its potential for prejudice. This evidence, which was admitted during the cross-examination of appellant's expert psychologist, was relevant to the credibility of both the psychologist and the appellant. The trial judge concluded that any potential for prejudice could be cured by the following cautionary instruction delivered immediately after appellant's objection:
Now, members of the jury, I want to say to you that that testimony was let in, referring to consumption of alcoholic beverages, not in any sense to suggest that this accident was caused as a result of drinking. It was let in for other reasons, namely, bearing upon his memory, his ability to recall, matters of that kind.
You should not in any way permit yourselves to draw any inference that the accident occurred because he had been drinking. It was not permitted for that reason.
Moreover, the trial judge emphasized in his concluding instructions that "the plaintiff's care or fault is not an issue in this case." (A. 619) We cannot say that the admission of the challenged evidence was an abuse of discretion under these circumstances.
Appellant's third suggested ground for reversal is that the district court abused its discretion in allowing appellee to show the jury three crash-test films. Two films depicted accident simulations under conditions similar, but not identical, to appellant's accident and were offered for the purpose of demonstrating appellee's theory of how the accident occurred. "Perfect identity between experimental and actual conditions is neither attainable nor required" and the trial judge did not abuse his discretion by concluding that there was a sufficient similarity here. Ramseyer v. General Motors Corporation, 417 F.2d 859 (8th Cir. 1969).
The third film, which involved a vehicle of a substantially different design, was not introduced to show how appellant's accident occurred, but to illustrate principles of physics relevant to the issue of alternative design. Appellant's counsel made this clear to the jury:
Under these circumstances, permitting utilization of a film involving a different vehicle was not reversible error. Harkins v. Ford Motor Company, 437 F.2d 276, 277-8 (3d Cir. 1970) (where accident involved a Ford Falcon and crash experiments were conducted using 1957 Mercury and 1964 Ford, test results used to demonstrate general principles of physics were admissible).
Accordingly, the final judgment of the district court will be affirmed.
This cause came on to be heard on the record from the United States District Court for the Eastern District of Pennsylvania and was submitted under Third Circuit Rule 12(6) on December 2, 1985.
On consideration whereof, it is now here
Ordered and ADJUDGED by this Court that the judgment of the District Court entered on November 21, 1984 be and the same is hereby affirmed.
Costs taxed against appellant.