United States District Court, M.D. Pennsylvania
December 19, 2005.
FELICIA REICHNER, a minor, by MAYNA SWINEHART, guardian, Plaintiffs,
K-MART CORPORATION AND SISTER SISTER, INC., Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court are the motions in limine filed by the parties
in this strict liability action involving flammable clothing. The
motions have been fully briefed and thus are ripe for
Plaintiff Felicia Reichner is a minor who resides in Sunbury,
Pennsylvania with her grandmother and guardian Mayna Swinehart.
Plaintiff's complaint asserts that Plaintiff Mayna Swinehart
bought a clothing outfit for Felicia Reichner at Kmart. The minor
plaintiff wore the garments on July 4, 1998 when they ignited
causing severe, painful and permanent injuries. Plaintiff alleges
that the garment was manufactured and distributed to Defendant
Kmart by Defendant Sister Sister.
Plaintiff instituted the instant lawsuit against K-mart and
Sister Sister alleging strict liability as the garment was sold
in an unreasonably dangerous condition in that the fabric was
highly flammable. Plaintiff seeks to recover under the theories
of design defect and failure to warn. At the conclusion of
discovery, the defendants moved for summary judgment, which we
denied in April 2005. The parties then sought additional time for
expert discovery. The court granted the motion and set September
2, 2005 as the deadline for motions in limine. The parties all
filed motions in limine. After a thorough review of the motions,
we will now address the motions in seriatim.
This Court has jurisdiction pursuant to the diversity
jurisdiction statute, 28 U.S.C. § 1332. The plaintiffs are citizens of the Commonwealth of
Pennsylvania. Defendant Kmart is a Michigan corporation with a
principal place of business in Michigan, and Defendant
Sister-Sister is a New York Corporation with a principal place of
business in New York. Because we are sitting in diversity, the
substantive law of Pennsylvania shall apply to the instant case.
Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000)
(citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
We will begin our discussion by addressing the plaintiff's
motions in limine. Plaintiff has filed two motions in limine.
I. Plaintiff's motion in limine to preclude any testimony,
reference and/or argument as to any industry standards,
government regulations or other guidelines, protocol or rules
Plaintiff's first motion in limine seeks to preclude evidence,
testimony and/or argument regarding any industry standards,
government regulations or other guidelines, protocol or rules.
Plaintiff anticipates that part of the defense of this action
will be that the defendants followed various industry standards
and government regulations. Indeed, plaintiff points out that
each of the defendants' expert reports refer to the Federal
Flammability Act ("FFA")*fn1 as well as other industry
standards. Plaintiff argues that such evidence is irrelevant to
the instant action as plaintiff is proceeding solely on a strict
liability and/or product liability cause of action. We are in
agreement with the plaintiff.
Pennsylvania has adopted the Restatement (Second) of Torts with
regard to strict product liability. Webb v. Zern, 220 A.2d 853,
854 (Pa. 1966). In pertinent part, Section 402A of the
(1) One who sells any product in a defective
condition unreasonably dangerous to the user or
consumer . . . is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property,
if (a) the seller is engaged in the business of
selling such a product, and (b) it is expected to and
does reach the user or consumer without substantial
change in the condition in which it is sold.
In order to maintain a strict liability action, a plaintiff
must establish that the product was in a defective, unreasonably
dangerous, condition, the defect existed when the product was in
control of the manufacturer, and the defect proximately caused
the plaintiff's injuries. Habecker v. Clark Equip. Co.,
36 F.3d 278
, 284 (3d Cir. 1994) (citing Walton v. Avco Corp.,
610 A.2d 454, 458-59 (Pa. 1992)).
The Pennsylvania Supreme Court has addressed the issue of the
admissibility of industry standards in a strict liability case in
Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc.,
528 A.2d 590 (Pa. 1987). The court held that such standards are not
admissible because they tend to bring negligence concepts into
the strict liability action, where they have no place. Id. at
594. The court noted that "the imposition of strict liability for
a product defect is not affected by the fact that the
manufacturer or other supplier has exercised `all possible
care.'" Id. at 593. Accordingly, defendants are precluded from
presenting evidence to the jury regarding industry standards.
Defendants argue that this case is different because the FFA
are federal regulations, not merely industry standards. Based
upon the reasoning of Lewis, however, we see no distinction.
The argument of the defendants would still be the same, that is,
that they complied with the relevant regulations, therefore, they
acted reasonably. The Pennsylvania Supreme Court held in Lewis
that mixing reasonableness/negligence concepts into a strict
liability case is improper.
Defendants also seek to use the regulations, not as substantive
evidence, but to cross-exam plaintiff's expert. We will not allow
this use of the regulations. Allowing the evidence to be used for
cross-examination would be confusing to the jury and would taint
the trial with this inadmissible evidence. Accordingly, plaintiffs motion in limine will be granted and
the defendants will be precluded from offering evidence of
industry standards, government regulations and other guidelines,
protocol and rules.
II. Plaintiff's motion in limine to preclude testimony,
reference and/or argument to the fact that plaintiffs and/or
other individuals were negligent
Plaintiff next seeks to preclude testimony, reference and/or
argument regarding whether the plaintiffs and/or other
individuals were negligent. Plaintiff anticipates that defendants
will attempt to establish that others were negligent on the day
of the incident and that their negligence caused the injuries.
Plaintiff's position is that such evidence of negligence has no
place in this strict liability/product liability action.
Defendant asserts that the evidence is appropriate to establish
misuse, assumption of the risk and causation. After a careful
review, we are in agreement with the plaintiff. Nonetheless, we
will address each issue.
Defendants assert that if plaintiff "misused" the clothing at
issue and such misuse provides a defense to the strict
liability/product liability action. We are unconvinced.
To establish a strict liability claim, a plaintiff must
demonstrate that the product is unreasonably dangerous to
intended users for its intended use. Parks v. AlliedSignal,
Inc., 113 F.3d 1327, 1331 (3d Cir. 1997). "Intended use"
includes any use which is reasonably foreseeable to the seller.
In the instant case, the plaintiff was using her clothing as
intended, she was wearing it. It was foreseeable that plaintiff's
clothing would come into contact with an open flame. Accordingly,
the defense of misuse is misplaced.
B. Assumption of Risk
Defendant also seeks to admit evidence of plaintiff's own
alleged negligence to establish the defense of assumption of the risk.
While assumption of the risk is, in fact, a defense to strict
liability, the defendant must present evidence that the plaintiff
possessed a subjective awareness of the defect. The Third Circuit
Court of Appeals has explained as follows:
The Pennsylvania courts have consistently held that a
plaintiff's assumption of the risk is a defense to
strict products liability. See Berkebile v.
Brantly Helicopter Corp., 462 Pa. at 98-100,
337 A.2d at 901. Under this theory, the defendant has
"the burden of showing the subjective awareness of
the defect by the injured party." Ellis v. Chicago
Bridge & Iron Co., 376 Pa.Super. 220, 545 A.2d 906,
915 n. 17 (1988). Accord, Staymates v. ITT Holub
Industries, 364 Pa.Super. at 48-50, 527 A.2d at 146.
Dillinger v. Caterpillar, Inc., 959 F.2d 430
, 445 (3d Cir.
The defendant has not provided evidence that the plaintiff was
aware that the dangling ties and the loose fit of the garment
rendered it unreasonably dangerous. Defendants have presented
evidence that the minor plaintiff was told to stop, drop and roll
if her clothing ever caught on fire, this does not evince a
subjective awareness on her part that the clothing was
unreasonably dangerous as opined by the plaintiff's expert
witness, Jeffrey Stull. Accordingly, assumption of the risk is
not available as a defense to this action.
The final reason advanced by the defendants to justify the
admission of the negligence of the plaintiff or others, is the
issue of causation. Defendants argue that although this is a
strict liability action, they may nonetheless present evidence of
the plaintiff's or others negligence to establish that regardless
of whether the product was defective, the injuries were caused by
the plaintiff's or others negligence. After a careful review, we
Pennsylvania law dictates that a plaintiff's conduct
may be introduced to undermine a plaintiff's claim
that the defect caused his accident only insofar as the plaintiff's
conduct was unforeseeable to the defendant, even
where the plaintiff played some part in setting the
accident in motion. . . . [Such evidence] . . . is
admissible only to support defendant's claim that the
conduct was so "extraordinary" or "[un]foreseeable"
that it would be unjust to hold the defendant liable
for the harm.
Parks v. AlliedSignal, Inc., 113 F.3d 1327
, 1332 (3d Cir.
As set forth above with regard to misuse, we find that the
facts of this case are not so extraordinary or unforeseeable that
it would be unjust to hold the defendant liable for the harm.
Accordingly, the defendants will not be able to present evidence
or argue that the plaintiff's own negligence or the negligence of
others was the cause of the injuries, and the plaintiff's motion
in limine will be granted.
III. Kmart's motions in limine
Kmart has also filed a motion in limine raising the following
1) Preclusion of reference to the Children's Sleepwear Act;
2) Preclusion of criticism of Congress in adopting the
3) Preclusion of the fact that newspaper passes the commercial
4) Preclusion of the "Rhode Island Survey of Consumer Knowledge
of Clothing Flammability," by Patricia Helms (hereinafter "the
Plaintiff explains in its response to the motion in limine that
they will not be criticizing Congress for adopting the commercial
standard and they will not be referencing the Helms Article.
Those portions of Kmart's motion addressing those issues shall be
granted as unopposed.
Further, plaintiffs assert that they do not intend to present
evidence of the Children's Sleepwear Act. Plaintiffs state that
they will seek to present such evidence only if the defendants
make an argument with regard to the feasibility of manufacture of
snug fitting clothes and/or the application of a warning tag.
Accordingly, the motion in limine will be granted in part.
However, plaintiffs will be allowed to present such evidence if
defendants open the door by arguing feasibility of manufacturing
a more snug fitting garment or the feasibility of warning tags.
Likewise, plaintiffs state that they will only seek to enter
evidence that newspaper will pass the commercial standard if the
defendants present evidence that the clothing at issue passes the
commercial standard. Accordingly, defendant's motion in limine
will be granted in part. If the defendant's present evidence or
argue that the garments at issue would pass the commercial
standard, then plaintiffs may present evidence that newspaper
would also pass the commercial standard.
IV. Sister Sister's motion in limine to preclude presentation
Defendant Sister Sister also seeks to preclude the presentation
of photos of the injured plaintiff to the jury. Sister Sister
argues that the photos have little to no probative value, will
create a great prejudicial effect and create overwhelming
sympathy for the plaintiff. We disagree, but we shall limit the
photographic evidence as set forth below.
Relevant evidence is defined in the Federal Rules of Evidence
as evidence that has "any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." FED. R. EVID. 401. Rule 402 provides that "all
relevant evidence is admissible." Federal Rule of Evidence 403
provides, however, that relevant evidence "may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
In the instant case, the photos at issue are relevant to
establish the extent of the injuries to the plaintiff, which is
certainly at issue. We find, however, that presenting all the
photos that the defendant has attached as exhibits to its motion
will be needlessly cumulative. Therefore, we will allow the
plaintiff to choose six (6) of the photos to present to the jury. Conclusion
For the reasons set forth above, the plaintiffs' motions in
limine will be granted. Defendant Kmart's motions in limine with
regard to the Helms Article and criticizing Congress are granted
as unopposed. Defendant Kmart's motion in limine with regard to
the Children's Sleepwear Act and newspaper being able to pass the
commercial standard are granted in part as unopposed, and the
evidence shall only be admitted if defendants open the door to
the evidence as set forth more fully above. The motion in limine
to preclude photographs is denied, however, will be allowed to
present only six (6) photographs to the jury. An appropriate
order follows. ORDER
AND NOW, to wit, this 19th day of December 2005, it is
hereby ORDERED as follows:
1) Plaintiff's motion in limine to preclude evidence of
industry standards, government regulations or other guidelines,
protocol or rules regarding flammability of clothing (Doc. 100)
2) Plaintiff's motion in limine to preclude evidence of
plaintiff's or others negligence (Doc. 97) is GRANTED;
3) Defendant Kmart's motion in limine (Doc. 95) is GRANTED as
unopposed. Evidence of the Children's Sleepwear Act and the fact
that newspaper passes the commercial standard, however, shall be
admissible if defendants open the door as set forth more fully in
the attached memorandum.
4) Defendant Sister Sister's motion in limine to preclude
photographic evidence (Doc. 91) is DENIED. Plaintiff shall,
however, present to the jury no more than six (6) of the
photographs in question.
© 1992-2006 VersusLaw Inc.