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April 6, 1992


The opinion of the court was delivered by: BY THE COURT; EDWARD N. CAHN



 April 6, 1992

 On June 17, 1988, Anthony Markovich and Mark Tarmann were flying a Bell Model 206L helicopter (as the pilot and co-pilot respectively) over Springfield Township, Bucks County, Pennsylvania. The helicopter crashed, killing them both. The helicopter was owned by William H. Thayer, and had been leased to Fleet Helicopter Services ["Fleet"], *fn1" a corporation controlled by Mr. Thayer. It had been manufactured by the defendants, Bell Helicopter Textron, Inc. and Textron Inc., eight years previously.

 This suit was brought by the families of the decedents, in their personal and representative capacities against the helicopter's manufacturers. Although the primary thrust of plaintiffs' case was that the helicopter was defective within the meaning of Section 402A of the Restatement (Second) of Torts, *fn2" they also argued that the helicopter was negligently manufactured, and that the defendants negligently supervised Fleet's maintenance program.

 This case was tried to a jury from November 25, 1991 until December 6, 1991. By its answers to interrogatories, the jury found that the bolt in question was not defective due to hydrogen embrittlement. Because the jury answered no to question number one, it never reached the remaining questions (dealing with whether the bolt, if found to be defective, was a substantial factor in causing the crash, and with damages). The plaintiffs' post-trial Motion for Judgment As a Matter of Law, or, in the Alternative, for a New Trial, is now before the court. The court heard oral argument on this Motion on January 27, 1992.

 Although the plaintiffs' Memorandum in support of their post-trial Motion enumerates twenty perceived shortcomings of the trial, the plaintiff's grounds for requesting post-trial relief are essentially fourfold: (1) that the court erred in dismissing the plaintiff's negligence claims; (2) that the court erred in allowing the defendants to introduce evidence of industry standards; (3) that the court erred in embracing the testimony of the defendants' expert witnesses during its charge; and (4) that the defendants engaged in fraud in the discovery process. These claims will be addressed seriatim.

 I. Standards for Post-Trial Motions

 The plaintiffs have moved both for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) *fn3" and for a new trial pursuant to Fed. R. Civ. P. 59(a).

 A court cannot enter judgment as a matter of law unless the party seeking the judgment made a Rule 50(a) Motion at the close of all the evidence at trial. See Keith v. Truck Stops Corp. of America, 909 F.2d 743, 744 (3d Cir. 1990); Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228, 233 (3d Cir. 1981); Fed. R. Civ. P. 50(b).

 The specific grounds for [judgment as a matter of law] must be asserted in the motion for a directed verdict. If the issue was not raised in the motion for the directed verdict at the close of all the evidence, it is improper to grant the [motion] on that issue. The requirement that the specific issue be raised first in the motion for a directed verdict, before the issue is submitted to the jury, affords the non-moving party an opportunity to reopen its case and present additional evidence. Further, when a trial court decides an issue after it was properly submitted to the jury, it may deprive the non-moving party of [its] seventh amendment rights.

 Bonjorno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802, 814 (3d Cir. 1984), cert. denied, 477 U.S. 908, 91 L. Ed. 2d 572, 106 S. Ct. 3284 (1986) (emphasis supplied) (citations omitted). Since the plaintiffs made such a Motion at the close of all the evidence, see N.T. Dec. 6 at 5, *fn4" the court will consider the merits of their Motion.

 In deciding whether a Rule 50(b) motion should be granted, "[a] court must view the evidence in the light most favorable to the non-moving party, and determine whether 'the record contains the "minimum quantum of evidence from which a jury might reasonably afford relief."'" Keith, 909 F.2d at 745 (citation omitted). See also Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990); Bhaya v. Westinghouse Electric Corp., 832 F.2d 258, 259 (3d Cir. 1987), cert. denied, 488 U.S. 1004, 102 L. Ed. 2d 774, 109 S. Ct. 782 (1989); Grace v. Mauser-Werke GMBH, 700 F. Supp. 1383, 1387 (E.D. Pa. 1988). It is for this reason that "normally, when the evidence is contradictory, [judgment as a matter of law] is inappropriate." Bonjorno, 752 F.2d at 811 (citation omitted). The jury must weigh the evidence, if the evidence is in dispute, because "evaluation of witness credibility is the exclusive function of the jury." Bhaya, 832 F.2d at 262. See also Bonjorno, 752 F.2d at 811; Grace, 700 F. Supp. at 1387.

 The conditions which must be met to justify the grant of a new trial are not as stringent as those required for the entry of judgment as a matter of law. "In general, the ordering of a new trial is committed to the sound discretion of the district court." Bonjorno, 752 F.2d at 812. See also Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1348 (3d Cir. 1991); Honeywell v. American Standards Testing Bureau, Inc., 851 F.2d 652, 655 (3d Cir. 1988), cert. denied, 488 U.S. 1010, 102 L. Ed. 2d 787, 109 S. Ct. 795 (1989); Feingold v. Raymark Industries, Inc., 1988 Westlaw 76114 at *3 (E.D. Pa. July 19, 1988); Grace, 700 F. Supp. at 1387. A new trial cannot be granted, however, merely because the court would have weighed the evidence differently and reached a different conclusion. See Feingold, 1988 Westlaw 76144 at *3; Grace, 700 F. Supp. at 1387. A court can only exercise its discretion to grant a new trial because the verdict was against the weight of the evidence when the failure to do so would result in injustice, or would shock the conscience of the court. See Williamson, 926 F.2d at 1352-53; Feingold, 1988 Westlaw 76114 at *3; Grace, 700 F. Supp. at 1388.

 Since the standard for granting a new trial is "lower" than that for entering judgment as a matter of law, it is clear that if a new trial is not warranted, the entry of judgment as a matter of law would be improper. For this reason, the court will analyze the plaintiffs' arguments under the new trial standard. Since the court finds that a new trial is not warranted, the court will also decline to enter judgment as a matter of law.

 II. Negligence Claims

 At trial, the plaintiffs based their case on Section 402A. All of the facts and arguments they introduced were designed to lead the jury to conclude that the bolt in question was defective within the meaning of Section 402A. Their attempts, at the post-trial stage, to change the basis of their case are ultimately futile. At trial, the court ruled that there was insufficient evidence for the jury to consider any negligence claims. *fn5" The plaintiffs now claim that the court's ruling was erroneous. Specifically, the plaintiffs claim that the jury should have been allowed to consider whether the defendants were negligent in either giving advice to Fleet following the "hard landing / sudden stoppage" of March 29, 1988, or in failing to "de-certify" Fleet as a Bell customer service facility. The court rejects these contentions.

 It is clear that the mere occurrence of an injury does not give rise to an inference that one of the parties involved was negligent. See Hicks v. Unger Motor Co., 332 F. Supp. 118, 121 (E.D. Pa. 1971); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (Pa. 1978); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864, 867 (Pa. 1961). In order to prevail on a negligence claim under Pennsylvania law, *fn6" the plaintiff must prove the following elements: (1) a duty, recognized by the law, of the defendant to conform its conduct to a standard of care; (2) a breach of that standard of care; (3) a causal connection between the breach and the (4) injury to the plaintiff. See Zimmer Paper Products, Inc. v. Berger & Montague, 758 F.2d 86, 93-94 (3d Cir.), cert. denied, 474 U.S. 902, 88 L. Ed. 2d 227, 106 S. Ct. 228 (1985); Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983); Caldwell v. Commonwealth of Pennsylvania, 120 Pa. Commw. 358, 548 A.2d 1284, 1286 (Pa. Commw. Ct. 1988); Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2d 1332, 1334 (Pa. Super. Ct. 1985). "It is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has met this burden." Morena, 462 A.2d at 683. The court's ruling in regard to the negligence claims was correct because the plaintiffs failed to submit evidence demonstrating a duty on the part of the defendants, or sufficient evidence for the jury to find that any negligence on the part of the defendants proximately caused the helicopter to crash. *fn7"

 A. Duty

 Under Pennsylvania law, the existence of a duty is predicated on the relationship between the plaintiff and the defendant. See Morena, 462 A.2d at 684; Zanine, 497 A.2d at 1334. "In negligence, the preliminary determination of whether a duty exists with respect to the particular claimant is for the court." Huddell v. Levin, 537 F.2d 726, 734 (3d Cir. 1976). This determination is critical since Pennsylvania "courts have emphasized that there can be no negligence where there is no duty of care." Zanine, 497 A.2d at 1443.

 At trial, the court questioned plaintiffs' counsel as to whether the customer service facility agreement between Fleet and the defendants created any duty which ran from the defendants to parties other than Fleet. Plaintiffs' counsel cited Toole v. United States, 588 F.2d 403 (3d Cir. 1978) for the proposition that a party which enters into an agreement with a subcontractor has a duty to the subcontractor's employees to either supervise the subcontractor in such a way as to keep its employees from harm or to warn the subcontractor's employees directly of the dangers they face. See Toole, 588 F.2d at 406. Because of Toole, the plaintiffs reason, the defendants were under a duty to supervise Fleet in such a way as to keep Fleet's employees (such as Markovich and Tarmann) from harm. Since Markovich and Tarmann were harmed, the plaintiffs believe that a jury should decide if the defendants breached their duty to protect Markovich and Tarmann.

 The flaw in the plaintiffs' argument is that the facts of Toole are clearly distinguishable from the facts of the case at bar. Toole involved a contract between the United States Government and the manufacturer of the "fuze rocket," an antitank weapon produced for the United States Army. See Toole, 588 F.2d at 404. The contract in question provided that, if a department of defense inspector *fn8" determined that the manufacturer was not in compliance with the contract, the government could terminate the contract. See Toole, 588 F.2d at 405. Given the restrictions on, and the limited market for, the product involved (an antitank rocket), termination of the government contract would have effectively shut down the manufacturer's production line.

 The plaintiff in Toole worked on the assembly line which produced the fuze rocket. Specifically, the plaintiff's job was to stake the primer and detonator of the rocket. This process was accomplished by placing a primer inside a detonator, and then placing the assembled product into a machine which crimped the two together. See Toole, 588 F.2d at 404. Since both the primer and the detonator of the fuze rocket were composed of high explosives, and since 50 detonators and 350 primers were present at the work station where the staking was performed, there was an extreme danger of an explosion occurring during the process. See Toole, 588 F.2d at 404. For this reason, the contract explicitly provided for a safety shield of a certain strength. See Toole, 588 F.2d at 405. When the plaintiff in Toole was killed in an explosion, the Third Circuit Court of Appeals ruled that the United States was under a duty to require the manufacturer to utilize the proscribed protective shield. See Toole, 588 F.2d at 408-09.

 These facts differ markedly from those of the case at bar. The case at bar does not involve the Federal Government (an entity which owes the public at large substantially more duties than private actors); instead, it involves private parties. Further, while the government could have shut down the manufacturer in Toole, the defendants in this case had no such power over Fleet. They could only suggest that Fleet take certain actions. The most severe sanction which the defendants could impose on Fleet for non-compliance would be the termination of the customer service facility agreement. Termination of the agreement would not have prevented Fleet from acting as it pleased; it would only have prevented Fleet from purchasing parts from the defendants at a customer service facility discount. See N.T. Dec. 3 at 165-66; 215.

 Finally, the case at bar does not involve explosives or other ultrahazardous activities. *fn9" Operations involving explosives have always been accorded special treatment by the law of torts. See, e.g., William Prosser and W. Page Keeton, The Law of Torts 552-54 (1984); Restatement (Second) of Torts, § 520 comment i; Restatement (Second) of Torts, § 520 comment j. It is not surprising, therefore, that the Third Circuit Court of Appeals imposed a duty on the United States Government to warn or protect those manufacturing munitions at its behest. This court will not, based on this precedent, impose a duty on all actors to supervise their subcontractors or be liable to the subcontractors' employees. Instead, the court will read Toole to its facts; imposing a duty on the Federal Government to supervise munitions manufacturers. Since the plaintiffs failed to introduce evidence from which the jury could find a duty running from the defendants to the plaintiffs, the court's decision to prevent negligence issues from reaching the jury was correct.

 B. Causation

 The court's refusal to allow the jury to consider negligence issues was also grounded on the plaintiffs' failure to offer evidence that the defendants' negligence (if any) caused the accident which forms the basis for this lawsuit. If the plaintiff in a negligence case fails to proffer sufficient evidence of the causal connection between the defendant's negligence and the plaintiff's injury, a court applying Pennsylvania law is required to direct a verdict in favor of the defendant. See Bohner, 175 A.2d at 868; Listino v. Union Paving Co., 386 Pa. 32, 124 A.2d 83, 86 (Pa. 1956); Caldwell, 548 A.2d at 1286.

 Proof of causation involves two elements: proof of cause in fact and proximate cause. Cause in fact or "but for" causation requires proof that the harmful result would not have come about but for the conduct of the defendant. Proximate cause, in addition, requires proof that the defendant's conduct was a substantial contributing factor in bringing about the harm alleged. Where the relevant facts show either that the defendant was not responsible for the injury, or that the causal connection between the defendant's negligence and the plaintiff's injury is remote, the question of causation is decided by the court as a matter of law.

 Robertson v. Allied Signal, Inc., 914 F.2d 360, 366-67 (3d Cir. 1990) (discussing Pennsylvania law). See also also Klingler v. Yamaha Motor Corp., U.S.A., 738 F. Supp. 898, 908 (E.D. Pa. 1990) ("whether proximate cause exists may be decided as a matter of law where the proposed chain of causation is so attenuated, so dependent upon unprovable contingencies, that the plaintiff is not within the group of individuals properly able to reach the defendant."); Novak v. Jeannette District Memorial Hospital, 410 Pa. Super. 603, 600 A.2d 616, 618 (Pa. Super. Ct. 1991) (Wieand, J.) ("We are here concerned with an issue of proximate cause. This is essentially an issue of law, i.e., whether the defendant's negligence, if any, was so remote that, as a matter of law, he cannot be held legally responsible for harm which subsequently occurred.").

 The plaintiffs failed to produce any evidence that would tend to show that, had the defendants' representatives offered Fleet different advice following the incident of March 29, 1988, the accident would not have occurred. *fn10" Since a jury verdict cannot be based on mere speculation, *fn11" see Vlases v. Montgomery Ward & Co., 377 F.2d 846, 851 (3d Cir. 1967); Morena, 462 A.2d at 683; Novak, 600 A.2d at 618 (refusing to allow a jury to speculate that, had a secondary driveway not been removed, an automobile accident would not have happened); Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43, 45 (Pa. Super. Ct. 1965), *fn12" this failure on plaintiffs' part prevented the court from allowing the jury to consider the issue. Similarly, the plaintiffs failed to present any evidence at trial that would show that, had the defendants terminated Fleet as a customer service facility, the accident would not have occurred. Termination of the customer service facility agreement would not have grounded Fleet's helicopters, nor would it have prevented Fleet from performing maintenance on its own aircraft. Only the FAA has the power to ground aircraft. See N.T. Dec. 3 at 166; 215. The plaintiffs never introduced evidence showing that the defendants had a duty to report Fleet to the FAA. Furthermore, a jury finding that, had a report been made, the FAA would have grounded the helicopter would have been based on pure speculation. Cf. Klingler, 738 F. Supp. at 909 ("More disturbingly, this court would be obligated to decide whether a nonexistent safety rule was adequately justified by the nonexistent record not presented to the Commission. Such a prodigious feat of judicial clairvoyance is beyond the skills of this court."). *fn13"

 III. Evidence of Industry Standards

 Under Pennsylvania law, it is improper to allow a party to introduce evidence of "industry standards" in order to prove (or to disprove) that a product was defective within the meaning of Section 402A. See Santiago v. Johnson Machine and Press Corp., 834 F.2d 84, 85 (3d Cir. 1987) (citing Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (Pa. 1987)); Holloway v. J.B. Systems, Ltd., 609 F.2d 1069, 1073 (3d Cir. 1979); Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590, 594 (Pa. 1987). *fn14" The plaintiffs argue that the court impermissibly allowed the defendants to introduce such evidence (namely, the industry standard with regard to the length of time for baking cadmium plated bolts), and that a new trial is therefore warranted. The court rejects this argument.

 The court does so because it was the plaintiffs who opened the door to the introduction of industry standards for baking cadmium bolts. During the plaintiffs' case-in-chief, their expert, Manuel Raefsky, testified to the industry standard for baking cadmium bolts on direct examination. See N.T. Nov. 25 at 101; 158. *fn15" Mr. Raefsky elaborated on his testimony as to the industry standards for baking cadmium bolts during cross-examination. See N.T. Nov. 26 at 99-102. In fact, Mr. Raefsky specifically testified that, in 1974, Boeing was baking similar bolts in excess of three hours. See N.T. Nov. 26 at 101-02. Having introduced this testimony during their case-in-chief, the plaintiffs cannot preclude the defendants from offering testimony in their case-in-chief to rebut the statements made by Mr. Raefsky. See Leaphart v. Whiting Corp., 387 Pa. Super. 253, 564 A.2d 165, 171 (Pa. Super. Ct.), appeal denied, 525 A.2d 619 (Pa. 1989) ("even if the evidence [of industry standards] was in fact inadmissible, the appellants, having introduced the evidence in their case in chief, cannot later deprive their opposition of the privilege of denying it.") (collecting cases). For this reason, granting a new trial because of the introduction of "industry standard" evidence would be improper.

 IV. The Jury Charge

 The plaintiffs claim to be entitled to a new trial because of the court's prejudicial summation of the evidence during the jury charge. It is settled law that the trial judge is allowed to comment on the evidence presented at trial. See American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 327 (3d Cir. 1985); Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1137 (3d Cir. 1972) (Adams, J.). *fn16" In order to be entitled to a new trial, the plaintiffs must demonstrate that the court's comments became so one sided as to become advocacy. See American Home Assurance, 753 F.2d at 327. Additionally, the plaintiffs cannot prevail by showing that one portion of the charge, standing alone, is suspect; the charge must be considered as a whole. See Bhaya v. Westinghouse Electric Corp., 922 F.2d 184, 191 (3d Cir.), cert. denied, U.S. , 111 S. Ct. 2827 (1991). *fn17"

 When evaluated under this standard, the plaintiffs' challenges clearly fail. The plaintiffs take exception to the court's statement that "the first thing you must think about is the Eagar opinion that [hydrogen embrittlement] can't exist for more than 100 hours." N.T. Dec. 6 at 94. *fn18" In arguing that this statement constitutes error, the plaintiffs ignore the fact that the court instructed the jury to consider the plaintiffs' expert's opinion as well. See N.T. Dec. 6 at 94 ("On the other hand, you have to consider the Raefsky opinion where -- and all the urgings by Mr. Wolk on this point as well as Mr. O'Connor, that the hydrogen can remain trapped in there, can be activated by some other incident and cause the bolt to fail in a delay situation."). *fn19" This, combined with the court's admonition to the jury that it was free to give the expert testimony the weight it thought the testimony deserved, see N.T. Dec. 6 at 79-80, makes it clear that the court did not become an advocate for the defendants during the jury charge.

 The plaintiffs also argue that the court erred in its comments regarding the damages experts by suggesting that the jury should adopt the approach used by the defendants' experts and that the plaintiffs' experts' opinions were "extreme." First, the court must note that, since the jury never reached the issue of damages because it found that the bolt in question was not defective, any error relating to the damages instructions would be harmless.

 Second, the court does not believe that its comments were erroneous. In referring to Dr. Verzilli's opinion, the court simply stated that the jury could best consider the damage opinions as a range. See N.T. Dec. 6 at 99. *fn20" The court then went on to state what must have been intuitively obvious to the jurors; that the plaintiffs' experts' opinions represented the high end of the range and the defendants' experts' opinion represented the low end of the range. See N.T. Dec. 6 at 99. The court then admonished the jury that, if it reached the issue of damages, it "should not exceed the highest figure in evidence or the lowest figure in evidence. And your verdict, if you get to Question 3-B, should be somewhere in between there." N.T. Dec. 6 at 99-100. The court then reminded the jury that it was free to accept or reject the opinions given by the experts, and that the conclusion it would reach would vary dramatically depending on which expert it chose to credit. See N.T. Dec. 6 at 100. It cannot be said that the court assumed the role of an advocate by making these comments. *fn21"

 V. Fraud in the Discovery Process

 Technically, the plaintiffs' Motion for a new trial because of the defendants' fraud in the discovery process is made pursuant to Fed. R. Civ. P. 60(b)(2) (dealing with the grant of a new trial based on newly discovered evidence). The Third Circuit Court of Appeals "view[s] Rule 60(b) motions as 'extraordinary relief which should be granted only where extraordinary justifying circumstances are present.'" Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991) (citations omitted). See also Plisco v. Union Railroad Co., 379 F.2d 15, 16 (3d Cir.), cert. denied, 389 U.S. 1014, 19 L. Ed. 2d 660, 88 S. Ct. 590 (1967). As is the case with a Rule 59(a) Motion for a new trial, the decision to grant a new trial pursuant to Rule 60(b)(2) is committed to the sound discretion of the trial court. See Bohus, 950 F.2d at 930; Giordano v. McCartney, 385 F.2d 154, 155 (3d Cir. 1967). Even though the trial court has discretion to grant a Rule 60(b)(2) Motion, it is clear that the party seeking relief bears a heavy burden. See Bohus, 950 F.2d at 930. Specifically, the moving party must show that the newly discovered evidence is

 (1) material and not merely cumulative, (2) could not have been discovered prior to trial through the exercise of reasonable diligence, and (3) would probably have changed the outcome of the trial.

 Bohus, 950 F.2d at 930 (citations omitted). See also Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983); Giordano, 385 F.2d at 155; McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 410 (10th Cir. 1965), cert. denied, 383 U.S. 933, 15 L. Ed. 2d 851, 86 S. Ct. 1061 (1966).

 The plaintiffs contend that the defendants failed to produce certain FAA documents relating to bolt failures prior to trial. In their post-trial memoranda, the defendants argue that they do not retain the records the plaintiffs seek, and could not, therefore, produce them during discovery. The defendants maintain that they provided the plaintiffs with all of the records in their possession. Further, the defendants suggest, the records the plaintiffs seek are beyond the bounds of discovery set by Magistrate Judge Leomporra. *fn22"

 At oral argument the court gave the plaintiffs in excess of fifty days *fn23" to depose the defendants personnel with regard to these documents. By letter dated February 26, 1992, counsel for the plaintiffs informed the court that it would not proceed with the depositions. Since the plaintiffs have not elected to persist in this objection, the court will treat it as having been withdrawn. For this reason, the court need not reach the issues of whether these documents were merely cumulative, or whether the plaintiffs, through an exercise of reasonable diligence, should have discovered them prior to trial.

 VI. Conclusion

 For the foregoing reasons, the plaintiff's Motion for post-trial relief will be denied. An appropriate Order follows.


 Edward N. Cahn, J.

 ORDER - April 6, 1992, Filed


 April 6, 1992

 AND NOW, this 6th day of April, 1992, upon consideration of plaintiffs' Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial, IT IS ORDERED that the plaintiffs' Motion is DENIED for the reasons set forth in the accompanying Opinion.


 Edward N. Cahn, J.

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