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February 24, 1989

Jack Zimmerman and Tammie Zimmerman, h/w, Plaintiffs,
Baker-Perkins, Inc., California Home Brands, Inc., National Can Corporation and National Pet Food Corporation, Defendants

The opinion of the court was delivered by: KELLY


 This is a personal injury suit based on strict liability and negligence theories. On December 3, 1984, plaintiff Jack Zimmerman suffered injuries to his left hand when it came in contact with the rotating blades of a dog food mixer manufactured by Baker-Perkins, Inc. (Baker-Perkins). Plaintiff was attempting to remove lumps of dog food which had accumulated near the discharge area of the mixer.

 Plaintiff's products liability claim alleges design defects and failure to warn. The alleged design defects include the absence of an interlock door mechanism which would prevent the blades from rotating while the discharge door was opened and a two hand jog button which would permit the blades to rotate with the door open only if activated by both of the operator's hands. The negligence claims against the manufacturer and the two suppliers, California Home Brands, Inc. (California Home Brands) and National Can Corporation and National Pet Food Corporation (National Can), allege failure to provide appropriate warnings on the mixer. After a seven day trial, a jury returned a verdict in favor of Jack Zimmerman and against all defendants in the amount of $ 1,750,000 and a loss of consortium verdict in favor of Tammie Zimmerman for $ 500,000.

 The defendants have filed post trial motions requesting judgment n.o.v. or, in the alternative, a new trial. *fn1" For the reasons set forth below, we shall grant judgment n.o.v. as to all defendants on the negligence counts and a new trial as to Baker-Perkins on the strict liability claim based on the excessiveness of the verdict.

 A trial judge may grant a new trial because of excessiveness if the verdict is so large as to shock the conscience of the court. See Kazan v. Wolinski, 721 F.2d 911, 914 (3d Cir.1983). In Ammon v. Arnold Pontiac-GMC, Inc., 361 Pa. Super. 409, 522 A.2d 647 (1987), the court listed a number of factors to consider in determining the excessiveness of a particular verdict:

(1) the severity of the injury, (2) whether plaintiff's injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will effect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff's out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

 Id. at 649 (citations omitted).

 In this case, the evidence showed that plaintiff suffered a laceration of the left hand resulting in multiple fractures, tendon injuries and loss of blood to the thumb, index, long and part of the ring finger. Plaintiff underwent surgery to reattach the hand, and while the hand looks good, it has limited physical function. Dr. Richard Dabb, plaintiff's treating physician, presented medical evidence relating to plaintiff's injuries and surgical procedures.

 Dabb testified that plaintiff's injuries were permanent. Dabb further testified that plaintiff would have difficulty doing labor requiring "sensitivity of his thumb and fine motor functioning with his injured hand." Plaintiff's Brief, p. 35.

 Relying largely on Dabb's medical reports, Mr. Robert Wolf, plaintiff's vocational expert, opined that plaintiff has a 35% disability. According to Wolf, this disability translates into a reduction in future earning potential and a loss of $ 371,567. On cross examination, Baker-Perkins introduced a medical report by Dabb dated March 5, 1987, which Wolf had not reviewed in preparing his testimony. This most recent report indicated improvement in the hand and that "'the hand basically would function extremely well as a helper to the other hand. Some discreet functions of the hand for some jobs might be impaired by his injury at this time.'" Baker-Perkins Brief, p. 57.

 The testimony at trial also revealed that in March, 1987, approximately one year before the start of trial, plaintiff began working as a dry wall finisher earning more money than he was before the accident. As pointed out by Baker-Perkins, "nothing in the record indicates that Dr. Dabb has advised Mr. Zimmerman against this work or told him that it is outside the scope of his physical abilities." Baker-Perkins Brief, p. 58.

 Plaintiff's out-of-pocket expenses totaled $ 26,780 for past medical expenses. Finally, in addition to punitive damages, plaintiffs requested judgment against defendants on each count in excess of $ 50,000 plus interest and costs. The amount demanded in the complaint, however, is not relevant in determining the excessiveness of this particular verdict. See E.D. Pa. R. 30. Based on the above, we are convinced that the evidence does not support the incredible verdict rendered in favor of Jack Zimmerman.

 The jury also entered a verdict in favor of Tammie Zimmerman in the amount of $ 500,000. We find this verdict to be excessive and not supported by the evidence. Although the evidence showed that plaintiff's wife provided a substantial amount of care to plaintiff following the accident and that the plaintiff's injury adversely affected the Zimmerman's relationship, there was no testimony "indicating any present strain or disruption of the marital or other relations between Mr. and Mrs. Zimmerman. While Mrs. Zimmerman confirmed that the stress and strain of the injury did cause some marital discord, she confirmed that these ...

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