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 ...