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REICHNER v. K-MART CORPORATION

December 19, 2005.

FELICIA REICHNER, a minor, by MAYNA SWINEHART, guardian, Plaintiffs,
v.
K-MART CORPORATION AND SISTER SISTER, INC., Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

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 disposition.

Background

  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.

  Jurisdiction

  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)).

  Discussion

  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 regarding flammability

  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 Restatement provides:
(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 ...


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