The opinion of the court was delivered by: McCLURE, District Judge.
Plaintiff Paul Stolarik was injured while he was operating a
panel saw at his place of employment, Contempri Homes. He filed
this products liability action against the manufacturer of the
saw, Hendrick Manufacturing Corporation ("Hendrick") and the
manufacturer of a side blade guard with which the saw came
equipped, HIT Products, Inc. ("HIT").
Following a bifurcated trial on the issue of liability only,
the jury found, in response to special verdict questions, that
the panel saw was defective and that the defect was the cause
of Stolarik's injuries, but that he had assumed the risk of
injury. The jury further found that the blade guard was not
defective. Accordingly, the court entered judgment on the
verdict in favor of both defendants on February 15, 1991.
At trial, testimony established that the accident happened
while Stolarik was cutting kitchen counter top material to
specified sizes. The accident occurred when Stolarik reached
behind the blade to separate the two cut pieces of counter top
and his right forearm came in contact with the moving blade.
The side blade guard was not attached when the accident
Some time prior to the accident, the side blade guard had
been removed by another Contempri employee, John McDermott, and
was never replaced. Stolarik had never seen the saw operated
with the side blade guard in place and was unaware of its
Plaintiff has filed a post-trial motion requesting a new
trial on several grounds. He contends that the court committed
reversible error in (1) refusing to instruct the jury that his
employer was immune from suit and that the negligence of the
employer was, consequently, no defense to plaintiff's strict
liability allegations against the defendants; (2) directing
that the last sentence of an excerpt from the guard
installation manual — which directed the user to remove
the inner guard if it was not required by OSHA inspectors
— be erased before the manual was shown to the jury; (3)
refusing to delay the trial to allow plaintiff to attempt to
secure the presence of an expert witness who willfully
disregarded a subpoena; and (4) directing the jury, after ten
hours of deliberations and two communications stating that they
were deadlocked, to change the order in which they were
considering the special verdict questions and respond to
question five — relating to plaintiff's assumption of the
risk — before considering questions one through four if
they were unable to agree on those questions.
A. Employer's immunity from suit
Plaintiff asked the court to instruct the jury that his
employer, Contempri Homes, was immune from suit and that any
negligence imputed to it was irrelevant and did not provide a
defense to plaintiff's strict liability claim against the
B. Special Verdict Questions
The jury deliberated for ten hours. During deliberations,
they conveyed five questions to the court and twice informed
the court that they were deadlocked. The court then read the
modified Allen charge approved by the United States
Court of Appeals for the Third Circuit in U.S. Healthcare,
Inc. v. Blue Cross, 898 F.2d 914 (3d Cir. 1990) and
United States v. Fioravanti, 412 F.2d 407 (3d Cir.
1969). When the court was informed for the second time that the
jury was unable to agree, the court instructed them, over the
objections of plaintiff's counsel, to proceed to question five
on the verdict slip, without answering questions one through
four if they were unable to agree on the response to those
questions. There were five special verdict questions in all.
Questions one and three asked whether the defendants'
respective products were defective, questions two and four
asked whether the products of the respective defendants caused
plaintiff's injury. The sequential arrangement of the questions
and the instructions which accompanied them were such that the
jury would not proceed to question five unless they had first
answered all of the preceding questions.
Contrary to plaintiff's contentions, when the jury reported
that they were unable to reach a verdict, there was nothing
improper in instructing them to skip questions one through four
if those were the questions posing the difficulty, and answer
question five. The court did not ask and was not informed of
any particulars concerning the ...