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WILKES-BARRE IRON & WIRE WORKS v. PARGAS WILKES-BARRE (12/13/85)

filed: December 13, 1985.

WILKES-BARRE IRON & WIRE WORKS, INC., APPELLANT,
v.
PARGAS OF WILKES-BARRE, INC. V. EDWARD CALADIE, APPELLEE



Appeal from the Order entered on August 10, 1984, in the Court of Common Pleas of Luzerne County, Civil Division, at No. 301-C of 1981.

COUNSEL

Miles A. Jellinek, Philadelphia, for appellant.

Arthur Silverblatt, Sr., Wilkes-Barre, for appellee.

Beck, Popovich and Trommer,*fn* JJ.

Author: Beck

[ 348 Pa. Super. Page 286]

This is an appeal from an order granting a new trial in a products liability action. Plaintiff/appellant Wilkes-Barre Iron & Wire Works' plant sustained severe damage when a liquid propane cylinder supplied by defendant/appellee Pargas of Wilkes-Barre exploded. While an employee of appellant was using the cylinder, it slipped and fell. The valve on the cylinder broke off in the fall, and propane gas leaking from the damaged cylinder caused an explosion.

[ 348 Pa. Super. Page 287]

Appellant's suit against Pargas sounded in both negligence and strict liability under section 402A of the Restatement (Second) of Torts (1965). The negligence claim was non-suited at the close of appellant's case. The essence of appellant's strict liability claim was that the cylinder was defectively designed because it lacked a protective collar around the valve which would have shielded the valve from the impact received in the fall.

The jury returned a verdict in favor of appellant, but the trial court granted appellee's motion for a new trial, holding that crucial testimony of appellant's expert witness should have been excluded because it exceeded the "fair scope" of his pretrial report under Pa.R.C.P. No. 4003.5(c). This is the principal issue before us on appeal. For the reasons stated below we affirm the order granting a new trial.

The decision whether to grant or deny a new trial is within the sound discretion of the trial court. Carnicelli v. Bartram, 289 Pa. Super. 424, 433 A.2d 878 (1981). Although appellant cites us to a statement in Hilbert v. Katz, 309 Pa. Super. 466, 471, 455 A.2d 704, 706 (1983), that "an appellate court may be more exacting in reviewing a new trial grant than a new trial denial," because the grant of a new trial interferes more with the function of the jury, the context of that statement was strictly with respect to new trials granted on the ground that the verdict was against the weight of the evidence. Elsewhere in the Hilbert opinion, we specifically state with respect to new trials awarded for other reasons, including as in the instant case erroneous rulings on the admission of evidence, the trial court has "broader discretion." Therefore the appropriate standard is still whether the trial court has abused its discretion.

We hold that the trial court did not abuse its discretion in ruling that a new trial was required because the testimony of appellant's expert witness exceeded the fair scope of his pretrial report. Discovery of information concerning expert testimony is governed by Pa.R.C.P. No. 4003.5. Subsection (a)(1)(b) of the Rule states in pertinent part:

[ 348 Pa. Super. Page 288]

A party may through interrogatories require . . . the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Subsection (c) of the Rule then defines the permissible scope of the expert's trial testimony:

To the extent that the facts known or opinion held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.

In the instant case, appellant retained Mr. Frederic Blum, a mechanical engineer, to testify regarding the cause of the explosion with particular reference to the design of the propane tank. In response to interrogatories served by Pargas, appellant Wilkes-Barre Iron & Wire Works ...


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