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STOLARIK v. HENDRICK MFG.

June 7, 1991

PAUL STOLARIK, PLAINTIFF,
v.
HENDRICK MANUFACTURING CORPORATION AND HIT PRODUCTS, DEFENDANTS.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

I. BACKGROUND

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 occurred.

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 existence.

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.

II. DISCUSSION

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 defendant manufacturers.

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 ...


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