to design this drill was unreasonable in light of the foreseeable risks.
Where plaintiffs' proof is insufficient is in proving the unreasonableness of defendant's decision to market this end-handled drill. Mr. Kotler opined that a Black & Decker's design was "unreasonably dangerous" because a drill generating the same level of torque as by Plaintiffs' Exhibit 1 was unsafe without a pistol grip or side stabilizer bar.
In deciding whether the risk foreseeable to Black & Decker was unreasonable, the Pennsylvania Supreme Court, according to Griggs, would apply a risk-utility analysis. 981 F.2d at 1435. That analysis balances the scope of the risk against the value of the defendant's interest and "the expedience of the course pursued," 981 F.2d at 1436, quoting Prosser and Keeton on the Law of Torts § 31, at 173 (5th ed.1984). The plaintiff must show, in a design defect case brought under a negligence theory, some information about the scope of the risk known to the defendant at the time of the marketing of the product. That is not the case in a strict liability action, see Habecker v. Clark Equipment Co., 942 F.2d 210, 215 (3d Cir.1991), where liability for an unsafe product attaches despite any lack of knowledge of the risks involved. If plaintiffs intended to persist in their negligence theory, however, it was incumbent upon them to introduce testimony on this element of the cause of action. Based on the record at trial, there is information that Mr. Brantner and Mr. Young were injured years after the sale of this drill. No information establishes the scope of injuries that Black & Decker knew or should have known in 1960 would be caused by the torque forces exerted by this drill when it bound or grabbed. Torque, as Mr. Kotler testified, has been understood for centuries.
Mr. Kotler also testified that in his opinion the Black & Decker drill was essentially a defective product because a drill with the power to generate 15 foot pounds of torque should not be equipped with an end handle due to the risk of an injury like Brantner's. There is no evidence of record, however, that Black & Decker could foresee the scope of that risk when it marketed the drill in 1960. In fact, from the lack of evidence of other torque-related incidents even between 1960 and 1990, no argument can be made that Black & Decker should even have subsequently realized the danger and warned users. See Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454, 459 (1992).
There similarly was no evidence from plaintiffs that the risk outweighed the social value of the defendant's product. On cross-examination, Mr. Kotler conceded that he did not know what design criteria had influenced Black & Decker's choice of an end-handled design over a pistol grip or stabilizer bar. Mr. Kotler also conceded that he did not know whether other manufacturers, in 1960 or today, continue to market end-handled designs on similar drills, or whether the end-handled design complies with ANSI standards. Evidence of compliance with industry standards, although inadmissible in products liability cases, Lewis v. Coffing Hoist Division, 515 Pa. 334, 528 A.2d 590 (1987), is relevant to show lack of negligence even though it does not per se show due care. See Mohler v. Jeke, 407 Pa. Super. 478, 595 A.2d 1247, 1251 (1991); McGowan v. Devonshire Hall Apartments, 278 Pa. Super. 229, 420 A.2d 514, 521 (1980). Finally, Mr. Kotler conceded that his proposed alternate design, at least insofar as it included a stabilizer side bar, would prevent a drill from reaching some narrow spaces reached by Black & Decker's design.
There was evidence, in part, on alternative courses open to Black & Decker. Mr. Kotler testified that a pistol grip, shovel handle, or stabilizer side bar could be designed for a drill at a comparable cost to Black & Decker's end-handled model. There was no testimony, however, that the drill as redesigned would have been capable of doing the same tasks as Black & Decker's model, however, and Mr. Kotler conceded that in some cases it could not.
In summary, because plaintiffs have not come forward with evidence that Black & Decker acted unreasonably in marketing Plaintiffs' Exhibit 1 as an end-handled drill in 1960, judgment as a matter of law must be entered on the negligence counts on the basis of Black & Decker's lack of duty. It is not necessary to address the alternative theories advanced by Black & Decker such as comparative negligence and assumption of risk.
Defendant's motion to strike the testimony of Mr. Kotler is denied.
BY THE COURT,
D. Brooks Smith, United States District Judge
DATE: August 26, 1993