The opinion of the court was delivered by: (Judge Munley)
Before the court are motions in limine filed by the parties to this case. Having been fully briefed, the matters are ripe for disposition.
This cases arises from the death of four young men, Salvatore Facciponte III, Andrew Larson, Michael McGovern, Jr. and Michael Hopkins, on February 9, 2008. The young men died after using a portable generator manufactured by Defendant Briggs & Stratton Corporation to provide electricity in a home. Plaintiffs allege that the men's deaths were caused by failings in the design of the generator and defendants' failure to warn them about dangers from the generator. These design failings allegedly caused the young men to be unaware of the dangers of running the generator in an enclosed space.
After the court denied defendants' motion for summary judgment, the parties filed motions in limine in anticipation of the pre-trial conference. The parties then briefed the issues, bringing the case to its present posture.
Plaintiffs and decedents are citizens of Pennsylvania. Defendant Briggs & Stratton is a Wisconsin Corporation with its principal place of business in that state. Defendant True Value is a Delaware Corporation with its principal place of business in Illinois. The amount in controversy exceeds $75,000. The court therefore has jurisdiction to 28 U.S.C. § 1332. The court is sitting in diversity, and therefore the substantive law of Pennsylvania shall apply. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
The parties filed various motions. The court will address each in turn. Plaintiffs' Motions
Evidence of the Lack of Incidents Involving Carbon Monoxide Poisoning Injury or Aspyxiation (Doc. 70) Plaintiffs argue that defendants should be excluded from introducing any evidence of a lack of prior incidents involving carbon monoxide poisoning from the use of portable generators. They argue that the Third Circuit of Court of Appeals has ruled that evidence of a lack of prior incidents cannot be introduced without proper foundation, and that defendants have not provided any evidence that indicates that a lack of carbon monoxide poisoning occurring indicates that the public has generally safely used such generators.
Plaintiffs do not claim that the evidence defendants may introduce is irrelevant or unduly prejudicial. Instead, they point to the holding of the Third Circuit Court of Appeals in Forrest v. Beloit Corp., 424 F.3d 344 (3d Cir. 2005) and argue that "any inference that a lack of claims equates to implied safe use is an improper inference." In Forrest, the Court of Appeals concluded that the trial court had improperly permitted the defendant to introduce evidence of an alleged lack of prior accidents involving a printing machine that had injured the plaintiff. Two employees had testified that over the long course of their employment they had never seen an accident similar to the one plaintiff suffered, though workers had for years used the machine in the same way plaintiff had. Id. at 353-54. Defense counsel had argued that the testimony showed that "the only accident we know of, in thirty-six years . . . was" plaintiff's. Id. at 354. Plaintiff's counsel had repeatedly objected that this testimony about prior accidents lacked proper foundation. Id. The defendant's former chief engineer had admitted at his deposition that defendant kept no records relating to safety complaints or prior accidents involving the machine. Id. Still, the district court allowed such evidence to be introduced.
The Court of Appeals noted that "in federal court the admissibility of evidence concerning an absence of prior accidents is governed by federal law" and "turns on the facts and circumstances of each case." Id. at 358. In such cases, "[t]estimony concerning an alleged absence of prior accidents will usually satisfy the relevance threshold established by [Federal Rule of Evidence] 402." Such evidence does not allow a plaintiff to interrogate the circumstances and determine why an accident did not occur. "[B]y its very nature," then, that evidence "raises significant concerns regarding unfair prejudice to the plaintiff, and these concerns are heightened in product liability cases arising under Pennsylvania law." Id. Federal Rule of Evidence 403 requires a district court to "balance the probative value of such evidence against its likely prejudicial effect, but the evidence may not be excluded unless the unfair prejudice created by admitting the evidence would substantially outweigh its probative value." Id. Introducing such evidence, therefore, requires a showing that "(a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (3) to the witness's knowledge, no such prior accidents have occurred." Id. at 355-56.
The court will deny the motion without prejudice to plaintiffs raising it again at an appropriate time. This case is about whether defendants manufactured an unreasonably dangerous product that caused the young men's deaths. Whether other deaths have been associated with the product, therefore, has a "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," and is relevant. FED. R. EVID. 401. Whether that evidence is unduly prejudicial, and therefore inadmissible, will be determined by whether defendants can lay a proper foundation, as explained above. See FED. R. EVID. 403 (establishing that "[a]lthough 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."). Plaintiffs have not to this point explained why defendants cannot lay a proper foundation for this evidence. If they cannot do so at trial, however, plaintiffs may renew their motion.
Evidence of Alleged Marijuana, Drugs, Alleged Drug Paraphernalia, or Alleged Drug Usage by Plaintiffs' Decedents Defendants seek to exclude any evidence of marijuana or drug paraphernalia allegedly found at the scene of the accident by investigators. They argue that no evidence exists to indicate that any of the decedents used marijuana, or that there was even marijuana on the scene. Police investigators reported finding "suspected" marijuana on the scene, but they did not test any of the substances found. Drug tests done on the decedents did not test positive for marijuana. Because there is no evidence indicating that any of the defendants consumed marijuana on the night in question, plaintiffs argue that the evidence is irrelevant, and if relevant, prejudicial. Defendants argue that circumstantial evidence exists to indicate that the decedents smoked marijuana on the night in question. One of the decedents had a history of marijuana use, they point out, marijuana pipes were found near the decedents' bodies, a marijuana grinder was found in the same area, and Decedent Salvatore Facciponte, Jr., had a foamy substance coming out of his mouth that a police officer surmised could have been the result of ingesting marijuana. Moreover, the evidence is relevant, defendants claim, because at issue are the judgments decedents made on the night they died. If they were under the influence of drugs, they may not have been capable of heeding the warnings on the generator that are here at issue.
At issue here is whether evidence of intoxication is admissible in this case. "[T]he well-settled law of this Commonwealth is that where recklessness or carelessness is at issue, proof of intoxication is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication." Locke v. Claypool, 627 A.2d 801, 803 (Pa. Super. Ct. 1993) (quoting Whyte v. Robinson, 617 A. 2d 380, 383 (Pa. Super. Ct. 1992)); see also, Critzer v. Donovan, 137 A. 665, 666 (Pa. 1927) (precluding testimony that a driver's breath smelled of alcohol after an accident because "[t]here was no allegation or proof of intoxication, nor was there any evidence of conduct or appearance from which a reasonable inference could be drawn that the man was intoxicated" beyond the statement on order. "[T]his was not a sufficient basis to justify the admission of the witness' conclusion that the person in question was intoxicated."). Courts have come to this conclusion because "while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive." Fisher v. Dye, 125 A.2d 472, 476 (Pa. 1956). The standards articulated in Pennsylvania cases, based as they are on weighing the balance between relevance and prejudice, apply in federal court. Rovegno v. Geppert Bros., Inc., 677 F.2d 327, 329 (3d Cir. 1982). Courts have applied the same rule to the consumption of marijuana: "where it cannot be established that the use of marijuana rendered a driver unfit to drive or impaired his ability to drive safely, the use of marijuana is inadmissible to prove recklessness or carelessness." Hawthorne v. Dravo Corp., 508 A.2d 298, 303 (Pa. Super. Ct. 1986).
The court will grant the plaintiffs' motion on this point. In this case, there is circumstantial evidence by which a jury could conclude that at least some of the young men at some point on the night in question ingested marijuana. That evidence includes police reports that indicate drugs were found near the decedents' bodies, the presence of marijuana pipes, and an expert report that speculates that a proper test would have revealed the presence of drugs in the young men's bodies. Still, even assuming that a jury could reasonably conclude that the young men smoked marijuana that evening, there is no evidence beyond mere speculation to indicate how much marijuana they smoked, when they smoked it, or how the drug influenced their behavior. There is no evidence to indicate that they were intoxicated when they set up the generator, however, and thus no evidence which would allow admission of the evidence of marijuana. See Locke, 627 A.2d at 803-4 (finding that evidence that plaintiff smelled of alcohol, a blood test indicating a blood alcohol content of .06% and an expert report that "extrapolated the test results and concluded that because Locke was a minor, he would have an exaggerated reaction to alcohol" was not enough to establish intoxication and permit evidence of alcohol consumption.).
This case is similar to Pennington v. King, 2009 U.S. Dist. LEXIS 12779, No. 07-4016 (E.D. Pa. Feb. 19, 2009). In that case, the plaintiffs sued the operator of a tractor trailer whose vehicle collided with an SUV the decedent was driving. Id. at *3. They alleged that the defendant had operated his vehicle while under the influence of marijuana, and was thus liable for negligence, recklessness and punitive damages. Id. at *3-4. The defendant spoke with law enforcement officials and an eyewitness after the accident, and none of them reported that he exhibited any signs of intoxication or impairment. Id. at *7. At the same time, plaintiffs produced the report of a toxicology expert who concluded that if the defendant showed signs of impairment while driving, his smoking of marijuana could be blamed for that impairment. Id. at *6. The court granted the defendant's motion for summary judgment on plaintiffs' claim for punitive damages, even though under Pennsylvania law driving while intoxicated "'may under certain circumstances be deemed 'outrageous conduct' and a 'reckless indifference to the interests of others' sufficient to allow the imposition of punitive damages.'" Id. at *12 (quoting Focht v. Rabada, 268 A.2d 157, 160 (Pa. Super. Ct. 1970)).
The court found plaintiffs had not produced sufficient evidence of intoxication, since in Pennsylvania "for evidence of elevated blood alcohol to be admissible, it must be supplemented by other evidence of intoxicated behavior." Id. at *13. The only evidence of intoxication were "the results of the toxicology screen and [defendant's] admission that he smoked marijuana on the Saturday evening prior to this Monday morning accident." Id. *17. While the defendant had been speeding and drove in an otherwise "erratic" fashion, that evidence was not sufficient "to introduce evidence of Mr. King's marijuana use at trial." Id. at *18. The court also rejected the expert report provided by plaintiffs, finding it "weak, speculative, and replete with qualifiers." Id. at *20. The report did "not assist Plaintiffs in their attempt to offer 'other evidence.' of impairment." Id. The court therefore refused to consider defendant's prior marijuana use "and his alleged resulting impairment." Id. at *20-21.
Here, the defendants have not produced any evidence that the decedents were actually intoxicated at the time they decided to run the generator in the vestibule. The mere presence of marijuana--which the plaintiffs point out was never tested and confirmed to be the drug--near the bodies is not evidence of consumption or impairment. Defendants seek to introduce such evidence to argue that decedents were impaired an incapable of following warnings about generator use. Introducing such testimony would encourage to jury to speculate about impairment and would be unfairly prejudicial, since there is no evidence that the decedents were actually impaired. As such, the court will grant the motion and exclude the evidence.
Evidence of Plaintiffs' Negligence or Negligence of Plaintiffs' Decedents in Connection with the Subject Portable Gasoline-Powered Generator Plaintiffs seek an order from the court precluding the introduction of any references to negligence by the plaintiffs or the decedents, particularly Andrew Larson or Salvatore Facciponte, III. Plaintiffs argue that this court has concluded that no evidence establishes who placed the generator inside the home, and thus the expert's conclusion that no injury would have occurred if the decedents had not ignored the warnings offered by plaintiffs or those affixed to the label on the generator has no factual basis. Defendants respond by arguing ...