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December 6, 1993

GERARD FARRA, et al., Plaintiffs,

The opinion of the court was delivered by: EDUARDO C. ROBRENO


 DECEMBER 6, 1993

 In this product liability case, the jury returned a verdict in favor of defendant. Plaintiffs have filed a motion for judgment as a matter of law or, in the alternative, a new trial. For the following reasons, plaintiffs' motion will be denied.


 Plaintiff Gerard Farra ("Farra") is the owner and operator of a roofing business. While installing a roof on a residence, Farra *fn1" was shot in the elbow with a roofing nail driven by a pneumatic nail gun, model number N55C-1 (the "nail gun"), which Farra had accidentally discharged. The nail gun was manufactured and designed by a corporate predecessor of defendant Stanley-Bostitch, Inc. ("Stanley").

 The events leading up to Farra's injury are not in serious dispute. On the day of the incident Farra was installing shingles on a twelve pitch roof, a roof that is slanted, vis-a-vis the ground, at an angle of 45 degrees. Farra testified at trial that this pitch was so steep as to require the use of "roof jacks" to allow Farra to stand on the roof while applying shingles. A roof jack is a device that contains a metal bar that, when fastened to the roof, protrudes out from the roof at an angle nearly parallel to the ground. Two roof jacks are placed at the same vertical height on a roof, but several feet apart from either other horizontally. A plank is then rested on the two metal bars protruding out from the roof, allowing the roofer to stand on the plank while performing work on the roof.

 On the date of the incident, Farra was installing shingles, as it was his practice, by making use of what amounted to a stairway of planks going up the roof. Each "stair," i.e., plank, was approximately four feet away from the stair above and below. Farra testified that, when using this method to apply shingles, he would place a bundle of shingles on the stair on which he was standing, apply shingles to the area of the roof that was within his reach, move the bundle of shingles to the next highest plank, climb to the next highest plank, apply shingles to the area within his reach from the new plank, and continue so on, until he reached the top of the roof. When the roof was completed, the roof jacks and planks would be removed without damaging the roof.

 Farra installed the shingles by nailing them to the roof with the nail gun manufactured by Stanley. In order for the nail gun to be operational, three steps must be taken: 1) a hose feeding compressed air must be attached to the gun, 2) the gun's trigger must be depressed, and 3) the gun's "contact trip" must be depressed. The contact trip is a sort of plunger attached to the barrel of the nail gun; the plunger will depress upon the application of eight to ten pounds of pressure. Farra testified that it was his habit to hang the nail gun on the roof jack supporting the plank immediately above the plank on which he was standing when the gun was not needed. He did this by resting the nail gun on the metal bar protruding out from the roof. This was possible because Farra did not "fully plank" his roof jacks, i.e., the plank he used was not wide enough to completely cover the metal bar protruding from the roof. Since the plank had to rest against the roof to prevent shingles from sliding between the plank and the roof, the disparity between the plank's width and the length of the bar resulted in a two-and-one-half to three inch gap between the end of the metal bar and the end, width-wise, of the plank. It was in this gap that Farra hung the nail gun by placing the trigger on top of the metal bar. The weight of the gun pushing down on its trigger resulted in the trigger being depressed when hung in this fashion. Farra testified that while he hung the nail gun this way "hundreds of times," he never realized that the gun's trigger became depressed through this method of hanging. See Tr. of 12/1/92 at 45-64.

 The incident sub judice occurred after Farra, while standing on a plank and having hung the nail gun in his habitual manner with the gun's trigger depressed as it rested on a higher roof jack, reached down to pick up a bundle of shingles in order to place them on the next highest plank. Farra bent from the waist to pick up the bundle, and, as he stood up, his elbow hit the trip mechanism with enough force to depress it. Since the gun's trigger was also depressed (by virtue of the manner in which the nail gun was hung), and since the air hose was connected, depression of the trip mechanism caused the nail gun to fire a nail into Farra's elbow.

 Farra contended at trial that there were four separate defects in the nail gun. First, Farra claimed the nail gun was defective because it was equipped with a contact trip, as opposed to a "sequential trip" firing mechanism. A sequential trip is one that would require the trip mechanism to be depressed before the trigger in order for the nail gun to fire. The parties stipulated that a sequential trip in the nail gun would have prevented the accident in this case. Evidence admitted at trial showed that Stanley manufactures a sequential trip nail gun, and, indeed, holds a patent on the sequential trip firing mechanism. Second, Farra claimed the nail gun was defective because it did not contain a trigger guard, i.e., some sort of physical barrier around the trigger to prevent it from being hung in the manner employed by Farra. Third, Farra claimed that the nail gun was defective because it did not require the operator to press a button on the trigger in order to fully depress the trigger. Fourth, Farra claimed the nail gun was defective because it did not come with a hook attached to it from which the gun could be hung without the need to depress the gun trigger.

 Stanley defended on the grounds that the nail gun was safe for its intended use. Stanley claimed this intended use was "bump firing," which allowed the nail gun's operator to fire nails repeatedly by "bumping" the trip mechanism while continuously holding down the trigger. See Tr. of 12/2/92 at 182-85. Bump firing is not possible with a sequential trip nail gun, and Stanley pointed out that bump firing is faster than firing performed without continuous trigger depression. As to Farra's other claims, Stanley claimed that the nail gun could be safely hung in a number of ways other than that used by Farra, making a hook unnecessary, and that the trigger was sufficiently protected from inadvertent depression by other parts of the gun, making a trigger guard or a button unnecessary. Stanley also claimed that Farra had misused the product, and had assumed the risk of his own injury.

 At the close of Stanley's case, Farra made a motion for judgment as a matter of law that the Court denied. See Tr. of 12/3/92 at 47, 56. The case was submitted to the jury on written interrogatories. See Fed. R. Civ. P. 49(b). The jury answered the first interrogatory in the negative, finding that Farra had failed to prove his prima facie case and thus returning a verdict in favor of Stanley. See id. ; Appendix infra (reprinting the written interrogatories). Farra now asserts a number of grounds in support of his motion for judgment as a matter of law or, in the alternative, a new trial. The motion is properly before the Court, Farra having made a motion for judgment as a matter of law at the close of defendant's case, which the Court denied, and the jury having returned a verdict against the plaintiff. Plaintiff's request for a new trial in the alternative is also properly presented. See Fed. R. Civ. P. 50(b), 59(a)-(b).


 Judgment as a matter of law is appropriately granted where "there is insufficient evidence from which a jury could reasonably find for the [nonmovant]." Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.), cert. denied, 469 U.S. 886, 83 L. Ed. 2d 196, 105 S. Ct. 260 (1984). In evaluating the motion, a court must review all the evidence presented during the course of the trial in the light most favorable to the prevailing party, in this case, Stanley, see id., and must draw all inferences in its favor, see In re Air Crash Disaster at Mannheim, Germany, 769 F.2d 115, 123 (3d Cir. 1985), cert. denied sub nom. Schoenborn v. Boeing Co., 474 U.S. 1082, 106 S. Ct. 851, 88 L. Ed. 2d 891 (1986). Where the motion is made by the party who bore the burden of proof at trial, as it is here, it will be granted only under exceptional circumstances. See Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921 (3d Cir. 1986). The Court can grant Farra's requested relief only if "the effect of the evidence is not only sufficient to meet his burden of proof, but is overwhelming, leaving no room for the jury to draw significant inferences in favor of [Stanley]." Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990).

 In considering a motion for a new trial, a court must refrain from interfering with the jury's verdict unless it is clear that "the jury has reached a seriously erroneous result.'" Lind v. Schenley Indus., Inc., 278 F.2d 79, 89 (3d Cir.) (in banc) (quoting 6 Moore's Federal Practice 3819 (2d ed.)), cert. denied, 364 U.S. 835, 81 S. Ct. 58, 5 L. Ed. 2d 60 (1960). Though the Federal Rules of Civil Procedure do not delineate the specific grounds upon which a new trial may be granted, referring, rather, to the reasons existing under the common law, see Fed. R. Civ. P. 59(a), the grounds upon which Farra makes his motion, that the verdict was against the weight of the evidence and that there was substantial error in the admission of evidence and in the jury charge, are proper ones. See Lind, 278 F.2d at 89-90; Northeast Women's Ctr., Inc. v. McMonagle, 689 F. Supp. 465, 468 (E.D. Pa. 1988), modified, 868 F.2d 1342 (3d Cir. 1989). See generally 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil ยง 2805 (1973). The court has broad discretion in deciding a motion for a new trial when the proffered ground is legal error. See Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). Such discretion is narrowed when the claim is that the verdict is against the weight of the evidence, for in that situation, the court is substituting its own judgment on the facts for that of the jury. See id. at 1290; Lind, 278 F.2d at 90. The court's inquiry in evaluating a motion for a new trial on the basis of trial error is twofold. It must first determine whether an error was made in the course of the trial, and then must determine "whether that error was so prejudicial that refusal to grant a new trial would be 'inconsistent with substantial justice.'" Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989) (quoting Fed. R. Civ. P. 61), aff'd, 922 F.2d 184 (3d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2827, 115 L. Ed. 2d 997 (1991); see Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 133 (3d Cir. 1965) ("If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result.").


1. Farra's motion for judgment as a matter of law

 Farra contends that Stanley's admission that the contact trip gun did not contain a safety feature present in the sequential trip gun, i.e., the sequential trip mechanism, establishes as a matter of law that the product was defective. The question, however, is not whether the sequential trip gun was a safer product than the contact trip gun, but rather, whether the contact trip gun "'lacked any element necessary to make it safe'" for its intended use. Dillinger v. Caterpillar, Inc., 959 F.2d 430, 436 (3d Cir. 1992) (quoting Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1027 n.12 (Pa. 1978)); Marshall v. Philadelphia Tramrail Co., 426 Pa. Super. 156, 626 A.2d 620, 625-26 (Pa. Super. 1993). *fn2" Therefore, finding that the sequential trip gun is "safer" than the contact trip gun in this case does not command a finding that the contact trip gun is defective.

 Farra's invocation of Habecker v. Clark Equipment Co., 942 F.2d 210 (3d Cir. 1991), is in vain. In Habecker, the survivors of a deceased forklift operator brought a product liability action against the manufacturer of a forklift that had flipped over and killed the decedent. The Third Circuit ruled that evidence of a safer design that was available at the time the forklift was designed was admissible to assist in establishing the forklift's defectiveness. See id. at 215. Farra reads Habecker to permit the introduction of evidence that a feasible safer design, the sequential trip, existed when the nail gun was designed, and that the existence of such a design renders the gun unsafe. However, Habecker was a crashworthiness case, where proof of an alternative, safer design that is "practicable under the circumstances," Huddell v. Levin, 537 F.2d 726, 737 (3d Cir. 1976), is an essential element of a plaintiff's case. See Habecker, 942 F.2d at 214-15; Huddell, 537 F.2d at 737-38. Because this is a non-crashworthiness product liability case, the focus must remain not on the existence of a safer design but on whether the product at issue contains all of the elements necessary to make it safe for its intended use.

 Even if the court were to apply Habecker in the instant case, it would not follow that Stanley's admission, i.e., that the sequential trip gun contains a safety feature not present in the nail gun at issue, establishes that the contact trip gun was defective. A product must be evaluated in light of its intended use when determining its safety. See Marshall, 626 A.2d at 625-26. In this case, as the defendant's expert testified, a sequential trip mechanism would have rendered the nail gun unsuitable for its intended use, i.e., bump nailing of large numbers of roof shingles. See Tr. of 12/2/92 at 182-85. Drawing all reasonable inferences in favor of Stanley, the prevailing party, Farra has failed to show that there was insufficient evidence from which the jury could conclude the nail gun was not defective. *fn3"

 2. Farra's motion for a new trial

 a. The sole causation charge

 Farra claims that the Court erred in charging the jury on the issue of sole causation, alleging that the charge injected contributory negligence principles into the case and that it was unsupported by the evidence. As a threshold matter, a party challenging a jury instruction on a particular matter must establish that the jury in fact reached that matter. A motion for a new trial on issues that a jury did not reach will not be granted. See Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp. 1231, 1241 (E.D. Pa.), aff'd without op., 977 F.2d 568 (3d Cir. 1992); Field v. Omaha Standard, Inc., 582 F. Supp. 323, 332 (E.D. Pa. 1983), aff'd without op., 732 F.2d 145 (3d Cir.), cert. denied, 469 U.S. 828, 105 S. Ct. 113, 83 L. Ed. 2d 56 (1984). The jury in ...

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