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Petree, David and Petree v. Victor Fluid Power Inc.

filed: September 23, 1987.

PETREE, DAVID AND PETREE, DIANA L., HIS WIFE
v.
VICTOR FLUID POWER, INC. DAVID PETREE AND DIANA PETREE, APPELLANTS



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 83-4526.

Seitz and Mansmann, Circuit Judges, and Debevoise, District Judge.*fn*

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge

In this appeal we review the district court's entry of a directed verdict, in a products liability action, on the question of whether the defendant was liable for the plaintiff's injuries because of the defendant's failure to equip its hydraulic press with a warning regarding a hazard of ejection of scrap metal during operation. As a preliminary matter, we find no abuse of discretion in the district court's refusal to allow the plaintiff to amend the pretrial order to include negligent failure to warn as a theory of recovery. Nor do we find that the district court abused its discretion by applying Fed. R. Evid. 407 to exclude from evidence a warning decal which defendant recently began affixing to its new hydraulic presses. While Rule 407 would still allow use of the decal for impeachment purposes, we need not adequate warning of a danger involved in its use. Therefore, we will remand the case for a new trial on the issue of strict liability for failure to warn.

I.

Plaintiff David Petree brought this action to recover for injuries he sustained at Empire Steel Castings, Inc., his place of employment, when he was struck in the side of the face by a steel spacer bar which was ejected from a hydraulic press being operated by his fellow employee, Barry Strunk. The hydraulic press had been manufactured and sold to the plaintiff's employer in 1959 by the predecessor corporation to the defendant Victor Fluid Power, Inc.

Petree filed an action for damages in district court pleading both strict liability and negligence. Specifically, Petree complained that Victor Fluid Power's predecessor breached its duty to the plaintiff by (1) the improper design, manufacture and distribution of the hydraulic press; (2) the failure to provide the product with proper safety equipment; and (3) the failure to warn adequately of the dangers inherent in the use of the product.

Victor fluid Power claimed in defense that the machine was not unreasonably dangerous when it left the manufacturer's possession. The defendant claimed that at the time of the accident the press was not being used as it was intended to be used nor was it being misused in a reasonably foreseeable way. The defendant argued that the accident was caused by substantial changes in the press and by improper maintenance which could not have been foreseen by the manufacturer.

At the pretrial conference, counsel for Petree informed the court that he would proceed under a theory of strict liability alone. The plaintiff claimed that the press was defective in that its design did not address the plaintiff's arguments in that regard in light of our ultimate disposition of this appeal. Upon examining the record we have determined that, under Pennsylvania law of strict tort liability, the plaintiff's evidence was sufficient to require jury deliberation on whether the offending machine was defective when it was sold because it was not accompanied by incorporate an and interlock guarding system. The plaintiff claimed in the alternative that the product was defective because, at the time it was sold, it did not contain a warning regarding the possibility that it would forcefully eject pieces of scrap metal.

The pretrial order accordingly did not include the negligence theory. Nevertheless, counsel for the plaintiff briefed the issue for trial, arguing that the defendant should have warned the plaintiff's employer of the danger when, in 1980, the defendant began affixing a warning decal to their newly manufactured hydraulic presses. The plaintiff requested a jury charge that "the manufacturer's duty to warn of a defect or dangerous condition continues even if defects are discovered after the initial sale."

Immediately prior to trial, a conference was held in chambers concerning motions by the plaintiff, first, for amendment of the pretrial order to add a theory of negligent failure to warn, and second, for admission into evidence of the warning decal which the defendant had begun to supply in 1980 with its new hydraulic presses. The district court refused to allow either the amendment or the admission of the decal. The district court denied the motion to amend on the basis that the negligence theory asserted by the plaintiff, namely a continuing duty to warn of an after-discovered hazard from using the product in a particular manner, had no support in Pennsylvania law. The court said:

I will not permit an amendment to the final pretrial order to permit plaintiff at this late stage to assert a negligence theory which is based on a continuous duty or an ongoing duty to warn . . . . This is not only a negligence theory, but it's almost a unique type of negligence theory. It's a new claim, and Mr. Lavin would have to prepare for it on virtually no notice. There is no Pennsylvania law in support of this new claim. Apparently almost a total absence of law elsewhere in support of the new claim.

Appendix at 97a.

In refusing to admit the 1980 decal, the court observed that the decal was not relevant in a ยง 402(a) case, and that Fed. R. Civ. P. 407 would apply to exclude it. The judge acknowledged a possibility that the decal might be admissible on an impeachment theory.

At trial the defendant moved for a directed verdict at the conclusion of the plaintiff's case pursuant to Rule 50(a) Fed. R. Civ. P. One ground for the motion was that the plaintiffs had failed to establish a prima facie case with regard to their claim that the press was defective at the time of sale due to a failure to warn of a propensity to eject scrap metal. The district court denied the motion initially.

During a conference in chambers immediately prior to closing arguments the district court once again refused to admit the 1980 decal into evidence, but the court directed that the decal become part of the record for purposes of an appeal. The district court further reconsidered and granted the defendant's motion for a directed verdict on the issue of failure to warn. Upon returning to the courtroom, the trial judge instructed the jury:

May I tell you at this time that for reasons that do not concern you, I have made a ruling on the law that the warning issue is not in the case.

Therefore, you will not be concerned and should not giver any consideration to evidence produced by the parties during this trial which related to Plaintiff's failure to warn theory. ...


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