Surace v. Caterpillar Inc ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-22-1997
Surace v. Caterpillar Inc
Precedential or Non-Precedential:
Docket 95-1805
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
NO. 95-1805
_____________
MICHAEL SURACE; ALICE SURACE, h/w,
Appellants
v.
CATERPILLAR, INC.; CMI CORPORATION,
Appellees
___________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
D.C. Civ. No. 94-cv-01422
___________________________________
Argued: July 31, 1996
Before: BECKER, STAPLETON, Circuit Judges, and
WARD, District Judge.*
(Filed April 22, 1997)
SOL H. WEISS, ESQUIRE (ARGUED)
KRISTIN WERNER, ESQUIRE
Anapol, Schwartz, Weiss and Cohan
1900 Delancey Place
Philadelphia, PA 19103
Attorneys for Appellants
Michael and Alice Surace
CARY E. HILTGEN, ESQUIRE (ARGUED)
KAREN S. MacLEOD, ESQUIRE
Hiltgen and Brewer
117 Park Avenue Third Floor
Oklahoma City, OK 73102
*
Honorable Robert J. Ward, United States District Judge for
the Southern District of New York, sitting by designation.
1
JAMES D. GOLKOW, ESQUIRE
Cozen and O'Connor
The Atrium, Third Floor
1900 Market Street
Philadelphia, PA 19103
Attorneys for Appellee
CMI Corporation
_____________________
OPINION OF THE COURT
_____________________
BECKER, Circuit Judge.
This is a products liability case, Restatement of Torts 2d §
402A, arising out of a construction accident in which the treads
of a huge road profiler machine ran over the foot of plaintiff
Michael Surace. Surace brought suit against CMI Corporation
("CMI"), the manufacturer of the machine, in the district court
for the Eastern District of Pennsylvania.1 The district court,
concluding that the evidence contained in the summary judgment
record failed to demonstrate that the profiler's risks outweighed
its utility, and also that the profiler presented an obvious risk
which could have been avoided had Surace exercised reasonable
care, granted summary judgment in favor of CMI. Surace appealed.
Resolution of the appeal requires us to explore the contours
of the Pennsylvania Supreme Court's decision in Azzarello v.
Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), which
established that, for purposes of strict liability, whether a
product's condition justifies placing the risk of loss on the
supplier is a threshold question of law for the court to
1
Jurisdiction was based upon diversity of citizenship, 28
U.S.C. § 1332.
2
determine.2 That Court has also made clear that the threshold
question turns on a social policy determination to be made by the
trial judge. In post-Azzarello defect cases, the Pennsylvania
Superior Court has determined that this requirement may be
fulfilled by performing a risk-utility analysis, and that the
multi-factor list developed by Dean John Wade may be employed in
doing so. See John Wade, On the Nature of Strict Tort Liability
for Products, 44 Miss. L.J. 825, 837-38 (1973). Though with some
diffidence, we predict that the Pennsylvania Supreme Court would
adopt that approach.
The appeal then requires that we apply the risk-utility
factors to our plenary review of the district court's judgment.
When we do so, we find that the risk-utility balance weighs in
favor of the plaintiff. In particular, we conclude that the
district court erred: (1) in determining that the gravity of the
risk of harm and the ability to eliminate it through use of a
lockout/tagout device, identified by Surace's expert as the
design solution to the defect, were factors weighing in favor of
CMI; (2) in relying on Surace's own conduct to determine that the
profiler was not unreasonably dangerous; and (3) in weighing the
issue of causation as a factor in resolving that question. We
also conclude that putative alternative grounds for upholding the
summary judgment for CMI do not pass muster. Accordingly, we
will reverse the grant of summary judgment and remand for further
2
The parties agree that Pennsylvania substantive law
governs this diversity action. Nowak By and Through Nowak v.
Faberge, U.S.A., Inc., 32 F.3d 755, 757 (3d Cir. 1994).
3
proceedings consistent with this opinion.
However, we will affirm the district court's judgment
insofar as it excluded Surace's expert witness Harold Brink from
testifying under Fed. R. Evid. 702. We agree that Brink lacks
the expertise required to testify regarding the central issue of
design defect in the case -- habituation. Accordingly, the
district court properly excluded Brink's testimony.
I. FACTS AND PROCEDURAL HISTORY
On the night of September 16, 1992, Surace, an employee of
SJA Construction Company, was working on the New Jersey side of
the Betsy Ross Bridge. The work crew was using a PR-450 pavement
profiler, which had been manufactured by CMI for Caterpillar,
Inc., to mill rumble strips at the base of the bridge. The
profiler had been equipped with a conveyor assembly which picked
up and carried debris generated by the profiler to a waiting
receptacle. However, due to space constraints, the crew was
operating the profiler without the conveyor assembly.
Consequently, the crew was required to level manually the piles
of debris left behind by the profiler.
On the night of the accident, Surace was working as a left-
side sensor man. In this position, he was responsible for
signaling the profiler's operator, William Snyder, when to start
and stop the profiler, and in which direction to move it.
Although the profiler was equipped with horns on the side
specifically designed for signaling the operator, Surace was
using hand signals to signal Snyder. The profiler's design
contained a "blind spot," i.e., the operator's view of the area
4
directly behind the machine was obstructed.
The profiler was equipped with a number of warning devices,
including a sign prominently posted on its rear alerting the crew
to stay at least 25 feet clear of the machine, an automatic back-
up alarm, flashing back-up lights, and a rotating overhead beacon
light which signaled when the profiler was in operation. These
warning or signaling devices were all in working condition on the
night of the accident. Surace was wearing earplugs to protect
his ears from the considerable noise created by the machine.
After the first pass of the profiler, Surace signaled Snyder
to stop. After moving the profiler forward, Snyder did so.
Surace then noticed a pile of debris in the reverse pathway of
the profiler which the machine had generated. Surace picked up a
broom or shovel, and, with his back to the machine, began to
level the debris. While Surace was behind the machine, and
without any signal from Surace, Snyder put the profiler into
reverse. Although the back-up alarms and signals were activated,
Surace neither heard nor saw them, nor did he hear the shouts
from his crew workers to move out of the way. The profiler
backed into Surace and snared his right foot under the treads.
As a result of the accident, Surace sustained serious injuries,
necessitating the amputation of part of his right foot.
Surace and his wife Alice (Surace) filed suit against
Caterpillar and CMI alleging negligence and strict liability for
defective design.3 Surace subsequently dropped the negligence
3
Alice Surace claimed loss of consortium.
5
claim and, by stipulation of the parties, Caterpillar was
dismissed from the action. The complaint alleged that the
profiler was defectively designed because its warning devices
were inadequate. Specifically, Surace alleged that the back-up
alarms were prone to "habituation," a phenomenon by which a
person becomes immune to a particular stimulus through constant
repetition and exposure, and that without a “lockout/tagout”
device, which would prevent the machine from reversing unless
activated by the ground crew, the profiler was unreasonably
dangerous.
Following a period of discovery, CMI moved in limine to
exclude the testimony of Surace's liability experts, Joseph
Lambert, Harold Brink and Paul Stephens, pursuant to Fed.R.Evid.
702, 703, and 403. Both Dr. Lambert, a psychologist and
specialist in human factors analysis, and Brink, an
electromechanical engineer, were to testify that the profiler's
warning devices were defective because they were prone to
habituation. Stephens, a mechanical and safety engineer, was to
testify that the warning devices were inadequate, and that the
failure to equip the machine with additional safety devices
caused the accident. After conducting an in limine hearing, the
district court denied the motion with respect to Lambert and
Stephens, but granted it with respect to Brink. Surace v.
Caterpillar, Inc., No. CIV.A.94-1422, 1995 WL 303895 (E.D. Pa.
May 16, 1995). The court's ruling was predicated largely on the
fact that Brink's opinion hinged on habituation, a field, the
court found, in which Brink lacked experience and for which he
6
relied exclusively on Dr. Lambert for support.
CMI then moved for summary judgment, arguing, inter alia,
that the profiler was safe for its intended use. As noted above,
the district court granted summary judgment for CMI on the
grounds that the evidence failed to demonstrate that the
profiler's risks outweighed its utility, and that the profiler
presented an obvious risk which could have been avoided if Surace
had exercised reasonable care. Surace v. Caterpillar, Inc., No.
CIV.A.94-1422, 1995 WL 495123 (E.D. Pa. Aug. 18, 1995).
We exercise plenary review in determining the propriety of
summary judgment. Childers v. Joseph, 842 F.2d 689, 693 (3d Cir.
1988). Summary judgment is proper only if there is no genuine
issue of material fact. Id. "An issue is `genuine' only if a
reasonable jury, considering the evidence presented, could find
for the non-moving party." Id. at 693-94.
II. THE AZZARELLO THRESHOLD ANALYSIS
A. Introduction
Pennsylvania early on adopted the Restatement (Second) of
Torts as the law of strict products liability in Pennsylvania.
Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (Pa. 1966).
Section 402A of the Restatement provides in relevant part:
(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.
7
Restatement (Second) of Torts (1965). To establish a case under
the strict liability doctrine, a plaintiff must prove that the
product was defective, and that the defect proximately caused the
plaintiff's injuries. Berkebile v. Brantly Helicopter Corp., 462
Pa. 83, 93-94, 337 A.2d 893, 898 (1975).
In Azzarello v. Black Bros Co., 480 Pa. 547, 558, 391 A.2d
1020, 1026 (1978), the Pennsylvania Supreme Court held that "the
phrases `defective condition' and `unreasonably dangerous' as
used in the Restatement formulation are terms of art invoked when
strict liability is appropriate." The Court also announced that
the threshold determination as to whether the product's condition
justifies placing the risk of loss on the manufacturer or
supplier is a question of law for the court to resolve. Id., 391
A.2d at 1026. If the court determines that the product is
defective under the facts as alleged, then the case is submitted
to the jury to determine whether the facts indicate that when the
product left the manufacturer’s control it “lack[ed] any element
necessary to make it safe for its intended use or possess[ed] any
feature that renders it unsafe for the intended use.” Id. at
559, 391 A.2d at 1027. The court in Azzarello, however, did not
articulate the standard for determining whether the risk of loss
should be placed on the manufacturer, except to note that it was
a matter of social policy:
Should an ill-conceived design which
exposes the user to the risk of harm entitle
one injured by the product to recover?
Should adequate warnings of the dangerous
propensities of an article insulate one who
suffers injuries from those propensities?
When does the utility of a product outweigh
8
the unavoidable danger it may pose? These
are questions of law and their resolution
depends upon social policy.
Id. at 558, 391 A.2d at 1026; see also Ellen Wertheimer,
Azzarello Agonistes: Bucking the Strict Products Liability Tide,
66 Temp. L. Rev. 419, 424 (1993) ("Azzarello indisputably failed
to provide courts with guidelines for determining precisely when
and why strict liability should attach."); David G. Owen,
Rethinking the Policies of Strict Products Liability, 33 Vand. L.
Rev. 681, 686-87 (1980) (Azzarello "did very little to help
clarify the meaning of defectiveness and its proper standards of
measure") (“the [Azzarello] court nowhere explicitly connects the
test of liability chosen -- ‘unsafe for the intended use’ -- to
even the weak policies that it does set forth”).
B. Risk-Utility Analysis
Because we are sitting in diversity, we are, of course,
required to the extent necessary to our decision to predict how
the Pennsylvania Supreme Court would apply the Azzarello
standard. In doing so, we give "`due regard' to the decisions of
Pennsylvania's intermediate appellate courts as `indicia of how
the state's highest court would decide a matter.'" Nowak, 32 F.3d
at 758 (quoting Ciccarelli v. Carey Canadian Mines, Ltd., 757
F.2d 548, 553 n.3 (3d Cir. 1985)).
Absent further guidance from the Supreme Court, the
Pennsylvania Superior Court has determined that in performing the
social policy analysis, a court must play a dual role, acting as
both a "social philosopher" and a "risk-utility economic
analyst." Fitzpatrick v. Madonna, 424 Pa. Super. 473, 476, 623
9
A.2d 322, 324 (1993); Carrecter v. Colson Equip. Co., 346 Pa.
Super. 95, 101 n.7, 499 A.2d 326, 330 n.7 (1985). In doing so,
courts, including the district court in the case sub judice,
engage in a risk-utility analysis, weighing a product's harms
against its social utility. Smialek v. Chrysler Motors Corp., 290
Pa. Super. 496, 502, 434 A.2d 1253, 1256 (Pa. Super. Ct. 1981)
("the question of whether a product is defective reaches the jury
only after the court has weighed the relative risks and utility
of the product"); see also Burch v. Sears, Roebuck & Co., 320 Pa.
Super. 444, 450-51, 467 A.2d 615, 618 (1983).
The Superior Court's approach in this respect seems
consistent with the tenor of the Pennsylvania Supreme Court's §
402A jurisprudence. Indeed, in Azzarello, the Supreme Court
indicated that a risk-utility inquiry may be appropriate in
performing the social policy analysis. Azzarello, 480 Pa. at 558,
391 A.2d at 1026 (suggesting that a court inquire as to whether
“the utility of a product outweigh[s] the unavoidable danger it
may pose"). Furthermore, Dean John Wade's article setting forth
the risk-utility analysis was cited favorably throughout the
Azzarello decision. Id. at 556 n.8,10, 557-58, 391 A.2d at 1025
n.8,10, 1026. That fact, coupled with its long hegemony in
Pennsylvania -- risk-utility analysis has been used by state and
federal trial courts since at least 1985 without comment by the
Pennsylvania Supreme Court -- satisfies us that the Supreme Court
would adopt it.
To be sure, the Pennsylvania Supreme Court has rejected the
risk-utility approach to defining design defect in favor of the
10
"intended use" approach. Lewis v. Coffing Hoist Div., Duff-
Norton Co., 515 Pa. 334, 340, 528 A.2d 590, 593 (1987), cited in
Habecker v. Clark Equip. Co., 942 F.2d 210, 213 n.2 (3d Cir.
1991).4 And, the Pennsylvania Superior Court has relied on Lewis
in rejecting actions which are based on a risk-utility theory of
liability.5 But the courts, including this one, have not
interpreted Lewis as supplanting application of the risk-utility
analysis as part of the threshold social policy inquiry. See
4
In Lewis, the Supreme Court acknowledged various
approaches to determining whether a product is defectively
designed. The court noted that under a "consumer expectations"
approach, adopted by the California Supreme Court in Barker v.
Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573
P.2d 443 (1978), a product is deemed defective in design "if it
failed to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner." 515
Pa. at 528 A.2d at 593. The Lewis court took cognizance of the
risk-utility approach, under which a product design is defective
where "on balance, the benefits of the challenged feature
outweigh the risk of danger inherent in such design," id. 528
A.2d at 593, but went on to state that the Azzarello court "sets
forth yet another approach" to determining design defects -- the
intended use approach. Id., 528 A.2d at 593 (citing Azzarello,
480 Pa. at 559, 391 A.2d at 1027).
5
In Hite v. R.J. Reynolds Tobacco Co., 396 Pa. Super. 82,
90-91, 578 A.2d 417 (1990), the plaintiff brought a strict
liability suit against a cigarette manufacturer. Rather than
allege a specific defect, the plaintiff argued that the product
was defective because the risks of cigarettes are outweighed by
their social utility. The Superior Court, noting that the
Supreme Court in Lewis had declined to embrace the risk-utility
approach to defining design defect, rejected the plaintiff's
theory. Id. at 91, 578 A.2d at 421; accord Miller v. Brown &
Williamson Tobacco Corp., 679 F. Supp. 485, 489 (E.D. Pa. 1988),
aff’d, 856 F.2d 184 (3d Cir. 1988). Likewise, in Dauphin Deposit
Bank & Trust Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 265,
596 A.2d 845 (1991), a panel of the Superior Court rejected the
plaintiff's theory that strict liability should be imposed
against an alcohol manufacturer solely because the risks
associated with alcoholic consumption outweigh their utility.
The Superior Court panel suggested that the risk-utility theory
of liability was not a cognizable approach to defining defect
under Pennsylvania strict liability law. Id., 596 A.2d 849.
11
Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1227 (3d Cir.
1989); Shetterly v. Crown Controls Corp., 719 F. Supp. 385, 399
(W.D. Pa. 1989), aff'd, 898 F.2d 142 (3d Cir. 1990); Marshall v.
Philadelphia Tramrail Co., 426 Pa. Super. 156, 165, 626 A.2d 620,
625 (1993).6 That result is consistent with the Pennsylvania
Supreme Court’s discussion in Lewis, which confirms, throughout,
its “harmony” with Azzarello.
At all events, Lewis does not purport to cut back on
Azzarello, and the discussion in Lewis that seems to have caused
some confusion is background and arguably dicta; the question for
6
In Griggs v. BIC Corp., 786 F. Supp. 1203 (M.D. Pa. 1992),
the plaintiffs sought to have strict liability imposed, not
because the product, a disposable butane lighter, was unsafe for
its intended use, but because it was unreasonably dangerous to
foreseeable users, i.e., children. The plaintiffs advocated use
of the risk-utility approach to design defect, rather than the
"intended use" approach, arguing that because it was foreseeable
that children would misuse the lighters and it was feasible to
design child-proof lighters, on balance, the product was
defective. The district court, citing Hite and Dauphin, noted
that the Pennsylvania courts have rejected the risk-utility
approach to design defect cases. Id. at 1206-07. The court,
however, correctly distinguished between the use of risk-utility
as an approach to defining defect and as a method for evaluating
a product's 'unreasonable dangerousness' under the rubric of
strict products liability. Id. at 1207 n.4.
On appeal, a panel of this Court relied on the Supreme
Court's decision in Lewis in affirming the district court on this
issue. Griggs v. BIC Corp., 981 F.2d 1429, 1433 n.6 (3d Cir.
1992). In light of the underlying facts of the case, we read the
panel's decision in Griggs as rejecting the argument that the
risk-utility approach to defining defect should be used instead
of the "intended use" approach; however, to the extent that the
panel's decision can be read as rejecting outright the use of a
risk-utility analysis as a part of the threshold determination,
it is contrary to our decision in Motter, supra, which,
subsequent to the Lewis decision, sanctioned this approach, and,
therefore, carries no precedential weight. See O. Hommel Co. v.
Ferro, 659 F.2d 340, 354 (3d Cir. 1981) ("[A] panel of this court
cannot overrule a prior panel precedent. . . . To the extent that
[the later case] is inconsistent with [the earlier case, the
later case] must be deemed without effect." (citation omitted)).
12
decision in Lewis was whether evidence of industry standards was
admissible in a design case. We do not minimize the background
discussion, and observe that it seems quite correct (as well as
consistent with Azzarello, for it establishes no more than that
the known hazards of products such as cigarettes or alcohol, see
supra n. 6 or, presumably, cigarette lighters, see supra n. 7, do
not automatically render their manufacturers or sellers liable on
the theory that their utility is outweighed by the risks of their
usage). Rather, Lewis established only that, after the threshold
Azzarello determination by the court, the jury must determine
whether, under the facts, the product, at the time it left the
defendant’s control, lacked any element necessary to make it safe
for its intended use or contained any condition that made it
unsafe for use. See Pennsylvania Suggested Standard Civil Jury
Instructions § 8.02 (Definition of “Defect”).
In sum, our prediction that Pennsylvania would employ a
risk-utility analysis in making the threshold Azzarello
determination is not inconsistent with Lewis, and we affirm the
district court's use of a risk-utility analysis in determining
whether the risk of loss should be placed on CMI.
We regret that the Supreme Court has not yet spoken
definitively on the matter of risk-utility analysis or its
component factors. Since it is almost twenty years since
Azzarello, we hope that the Court will speak definitively soon.
Unfortunately, we do not have a certification procedure, see
generally Hakimoglu v. Trump Taj Mahal Assoc., 70 F.3d 291, 302-
04 (3d Cir. 1996) (Becker, J., dissenting), through which we
13
could ask that court (in an appropriate case) for an early
resolution of the question that is so critically important in
many of the large number of diversity cases that are brought in
the federal district courts of the Third Circuit. We do not
suggest that this is that case, because the outcome does not
depend on the answer. If the Pennsylvania Court should adopt a
certification procedure, we must be careful to be judicious,
indeed sparing, in our use of it even though any such procedure
would necessarily give that court the absolute right to decline
certification in any case. To act otherwise would be to strain
the delicate federal-state relationship which needs to be
nurtured, not impaired.
C. The Wade Factors
Absent guidance from the state Supreme Court, the Superior
Court has also identified factors that may be considered in
making the threshold risk-utility analysis, including the
following list developed by Dean John Wade:
(1) The usefulness and desirability of the product -- its
utility to the user and to the public as a whole; (2)
The safety aspects of the product -- the likelihood
that it will cause injury, and the probable seriousness
of the injury; (3) The availability of a substitute
product which would meet the same need and not be as
unsafe; (4) The manufacturer's ability to eliminate the
unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its
14
utility; (5) The user's ability to avoid danger by the
exercise of care in the use of the product; (6) The
user's anticipated awareness of the dangers inherent in
the product and their avoidability, because of general
public knowledge of the obvious condition of the
product, or of the existence of suitable warnings or
instruction; and (7) The feasibility, on the part of
the manufacturer, of spreading the loss of [sic]
setting the price of the product or carrying liability
insurance.
Dambacher v. Mallis, 336 Pa. Super. 22, 50 n.5, 485 A.2d 408, 423
n.5 (1984) (citing Wade, supra, 44 Miss. L.J. at 837-38); see
also Fitzpatrick, 424 Pa. Super. at 476-77, 623 A.2d at 324
(citing Wade factors); Phillip v. A.P. Green Refractories Co.,
428 Pa. Super. 167, 180, 630 A.2d 874, 881 (1993); Riley v.
Warren Mfg., Inc., 688 A.2d 221, 225 (Pa. Super. Ct. 1997). The
district court applied these factors and determined that the
profiler was not defective and, therefore, that the risk of loss
should not be placed on CMI. We endorse the district court's
methodology. Application of the Wade factors also seems
consistent with the tenor of the Pennsylvania Supreme Court's
jurisprudence, and we believe that the Supreme Court would find
it acceptable and would probably follow it, though there are
problems of construction, particularly with respect to factor 5,
discussed infra.7
7
We note that in addition to the Wade factors, the
Pennsylvania Superior Court has suggested another set of factors,
developed by the California Supreme Court, which may be used in
15
On appeal Surace submits that CMI should have altered the
design of the profiler by equipping it with additional safeguards
such as a transmission lock (a "lockout/tagout device").8 We
turn our attention to the various Wade factors.
1. Gravity of the Risk of Harm and Ability
to Eliminate It Through Use of the
Lockout/Tagout Device
(Wade Factors Two and Four)
The gravamen of Surace's argument is that the profiler was
performing the risk-utility analysis:
(1) The gravity of the danger posed by
the challenged design; (2) the
likelihood that such danger would occur;
(3) the mechanical feasibility of a
safer design; (4) the financial cost of
a safer design; and (5) the adverse
consequences to the product that would
result from a safer design.
See Dambacher, 336 Pa. Super. at 50 n.5, 485 A.2d at 423 n.5
(citing Barker, 20 Cal. 3d at 431, 143 Cal. Rptr. at 237, 573
P.2d at 455). The Barker factors also reflect the Pennsylvania
Supreme Court's approach to strict liability. We focus on the
Wade factors which are more widely accepted (in Pennsylvania and
elsewhere) and are more comprehensive, including the Barker
factors within their compass. At all events, it is the Wade
factors that the district court applied, albeit incorrectly, and
hence, we limit our discussion to those factors.
8
In the district court, Surace also argued that CMI should
have provided the operator an unobstructed view of ground
personnel, or added a rear guard, described as a cow catcher. At
oral argument, Surace indicated that he was abandoning the cow
catcher design and pursuing the lockout/tagout device as the
"main [but not exclusive] thrust" of his argument. However, his
brief is devoid of argument with respect to the district court's
disposition under Azzarello of the alternative proffered designs,
including the need for variable alarms. Accordingly, appellate
review of these alternative arguments has been waived. United
States v. Voigt, 89 F.3d 1050, 1064 n.4 (3d Cir.) (failure to
raise a theory as an issue on appeal constitutes a waiver), cert.
denied, -- U.S. --, 117 S. Ct. 623, 136 L.Ed.2d 546 (1996). This
case does not present extraordinary circumstances that might
warrant review of any unpreserved issues. Id.16
defective and unreasonably dangerous because of the combination
of the "blind spot" and the phenomenon of habituation, and that
this defect could have been eliminated through the use of a
lockout/tagout device, which would prevent the operator from
engaging the profiler in reverse until a switch is activated by
ground personnel. The device would incorporate the safety
engineering technique of lockout/tagout, a concept which,
according to Surace's expert, although not currently in use for
this specific purpose, has been proven and tested, particularly
in the area of machine maintenance. The Occupational Safety and
Health Administration has defined a lockout device as one that
"utilizes a positive means such as a lock . . . to hold an energy
isolating device in a safe position and prevent the energizing of
a machine or equipment." See 29 C.F.R. § 1910.147(b)(1996). In
this case, it would prevent the operator "from inadvertently
releasing the energy" and reversing the profiler without
affirmative action by the ground crew.
Surace contends that, in rejecting this theory, the district
court failed to view the evidence in the light most favorable to
him. Barker v. Deere Co., 60 F.3d 158, 166 (3d Cir. 1995) (when
performing Azzarello analysis, a court must view the evidence in
the light most favorable to the plaintiff) (citing Burch, 320 Pa.
Super. at 450-51, 467 A.2d at 618-19).9 In determining that the
9
We note that this conclusion is problematic. This is
because the risk-utility calculus (or indeed any mode of making
the social policy determination required by Azzarello) is a legal
determination which should probably not be predicated upon a
weighted view of the evidence. The Pennsylvania Supreme Court
might want to revisit this aspect of the matter if and when it
definitively comes to grips with the issues we have identified in
17
profiler did not pose a grave risk of harm as currently designed
(we view this as an application of Wade factor two), the district
court primarily relied on its conclusion that Dr. Lambert had not
stated in his report that Surace had in fact become habituated to
the alarm, but had merely opined that the alarm was prone to
habituation. The court also based its determination on its
conclusion that Lambert had neither tested Surace for habituation
nor explained in his report how, when Surace was injured shortly
after the first pass of the profiler, he could have become
habituated to the alarm, since habituation requires constant or
repeated exposure.
Lambert's report, which provided a human factors analysis of
the accident, was based on collected accident reports, the
results of noise measurements taken of the profiler, and human
factors literature. In his deposition testimony, Lambert
admitted that, although it was feasible, he had not tested Surace
to determine whether or not he was habituated. He further opined
that, "because Mr. Surace had been around this piece of equipment
for such a long period of time, for months, that he habituated to
this alert. And that habituation became a long-term habituation
that could carry from day to day." Thus, although he did not
note it in his report, Lambert did conclude that Surace had
become habituated, and he further explained how Surace could be
habituated on the profiler's first pass of the evening. In view
of the fact that Lambert's testimony was before the court as part
this opinion.
18
of the summary judgment record, the district court was not at
liberty to ignore it. Moreover, because the habituation issue
will go to the jury in its determination as to whether the
profiler was unsafe for its intended use, the district court
could not resolve any dispute over the issue at that stage.
We underscore that, in the Azzarello context, the case would
not become one for the jury if the district court were able to
hold as a matter of law that the risk-utility balance so favored
the manufacturer that the profiler could not be deemed
unreasonably dangerous. See Barker, 60 F.3d at 161. Given the
considerations we have just articulated, and the fact that the
profiler will from time to time cause injury and, if so, the
injury will be serious given the immensity and huge weight of the
machine, we do not believe that the court could properly hold, on
account of disputed habituation evidence, that there was not a
sufficiently grave risk of harm from the profiler to weigh in
favor of Surace on the risk-utility analysis (Wade factor two).
Applying the fourth Wade factor, the district court rejected
Surace's contention that, because of the phenomenon of
habituation, the profiler should have been equipped with a
lockout/tagout device. As proffered, the lockout/tagout device
would prevent the operator from engaging the profiler in reverse
until a ground worker activated a switch. As currently designed,
the profiler relies on horns located on the sides of the machine
which must be activated by ground personnel, who, after visual
inspection, signal the operator that it is clear to reverse. It
is undisputed that on the night of the accident, Surace was using
19
hand signals rather than these horns to signal the operator and
that the operator put the profiler in reverse without waiting for
a signal from Surace. The district court concluded that there
was no evidence that the profiler was defective without a
lockout/tagout device. It noted that Surace's expert, Stephens,
was unaware of any profiler with this device, and concluded that
he could not therefore attest to the technological or economic
feasibility of such a device.
In his report, Stephens explained that the machine was
inherently dangerous without a lockout/tagout device because of
its "blind spot," coupled with the fact that crew members were
required to work in close proximity to it. Stephen's Report at 3
("severity of hazard and frequency of laborer exposure to the
hazard dictated that [such a device] be provided on the
machine"). Stephens further stated that the lockout/tagout
device was both technically and economically feasible. In
concluding that he had not shown that the device was mechanically
feasible, the district court emphasized that Stephens did not
know of any currently designed construction machinery that uses
the device. That conclusion, however, runs afoul of our decision
in Barker, where we held that "a district court, during its
threshold determination, may [not] consider the nonexistence of a
safety device as evidence of its nonfeasibility." Barker, 60 F.3d
at 166-167; see also Habecker v. Clark Equipment Co., 36 F.3d
278, 286 (3d Cir. 1994) ("The fact that the [safety device] did
not exist . . . does not mean that it was incapable of being
placed on the [profiler] if it did in fact exist.").
20
Although Stephens admitted that the device was not currently
employed by construction machinery for this purpose, he
repeatedly testified that such a device was used in other
applications, that the concept had been tested and proven on
machines comparable to the profiler, and that it could be applied
to work for this specific purpose. We have previously held that
expert testimony alone may be sufficient, for purposes of summary
judgment, to demonstrate feasibility, see Hollinger v. Wagner
Mining Equip. Co., 667 F.2d 402, 409-10 (3d Cir. 1981), and
further held that, while "a clear and concise diagram or verbal
picture of the type of device" would be helpful, it is not
required to defeat a motion for summary judgment.10 Id. at 410.
While it would have been preferable for Stephens to have
proffered design drawings or developed a prototype of the device,
his testimony was sufficient for purposes of the threshold risk-
utility calculus to make a showing of the feasibility of a
lockout/tagout device, at least in the absence of a
countervailing showing by CMI. We note that, in accordance with
10
In Hollinger, a panel of this Court noted that the
district court had analyzed the question of summary judgment
“under the traditional standard of sufficiency of the evidence to
present a jury question,” and not as threshold matter under
Azzarello. Hollinger, 667 F.2d at 410 n.11. However, in the
context in which the case was decided, the panel did not pass on
the propriety of the district court's action. Id. We have
previously held that the threshold legal determination under
Azzarello regarding the unreasonable dangerousness of the product
is properly made in the context of summary judgment or directed
verdict. Nowak, 32 F.3d at 758. However, the question for the
court to determine is whether the evidence is sufficient, for
purposes of the threshold risk-utility analysis, to conclude as a
matter of law that the product was not unreasonably dangerous,
not whether the evidence creates a genuine issue of fact for the
jury.
21
Azzarello, the technical feasibility issue will go to the jury in
determining whether the lockout/tagout device was an element
necessary to make the profiler safe for its intended use.
Azzarello, 480 Pa. at 588, 391 A.2d at 1026.11
Finally, the district court concluded that there was
insufficient evidence from which to determine whether the
profiler would be safer if equipped with a lockout/tagout device.
Emphasizing that, as currently designed, the profiler relies on
the crew to signal the operator that it is safe to reverse, the
court concluded that the lockout/tagout device performs the same
function and, because it relies on crew members to activate the
device, "provides no assurance that human error as occurred here"
would not cause another accident. Surace, 1995 WL 495123, at *7.
However, unlike the current design, the lockout/tagout device
would prevent the machine from going in reverse without
affirmative action by the ground crew which, unlike the operator,
have an unobstructed view of the reverse path of the machine.
Stephens acknowledged that he could not state with a reasonable
degree of scientific certainty that the device could prevent the
type of accident from occurring; however, he did attest that it
would "cut the risk significantly."
In sum, while such a design could not entirely eliminate the
possibility that after the machine was put into motion a crew
11
Stephens merely stated, without explanation, that the
lockout/tagout device was economically feasible. However,
although we conclude that his evidence was marginal with respect
to this Wade factor, the totality of the factors relevant here
would require the same result.
22
worker could walk into its pathway, it would obviously render the
machine safer. This conclusion is “in sync” with the
Pennsylvania courts' approach to determining whether the risk of
loss should be placed on the manufacturer. The court must
balance "the utility of the product against the seriousness and
likelihood of the injury and the availability of precautions
that, though not foolproof, might prevent the injury." Burch, 320
Pa. Super. at 450, 467 A.2d at 618 (emphasis added). Although a
conclusion that the profiler would be made safer if equipped with
a lockout/tagout device does not require a finding by the court,
or even the jury, that the profiler is defective, viewing the
evidence in the light most favorable to Surace we conclude that
the district court could not, on this basis, decide that the
profiler was not unreasonably dangerous.
Couching this discussion in terms of the Wade factors, since
it appears that the lockout/tagout device could eliminate the
unsafe character of the product and since it does not appear that
the lockout/tagout device would be expensive or would otherwise
impair the utility of the profiler, the second and fourth Wade
factors weigh in favor of Surace. Therefore, unless other
factors control the balance, the case must be submitted to the
jury.
2. Consideration of Surace's Conduct and
the Fifth Wade Factor
In finding that the profiler's risks were not outweighed by
its utility, the court concluded that the accident could likely
have been avoided had Surace exercised due care. Specifically,
23
the court found that because Surace was an experienced
construction worker, fully aware of the dangers posed by the
profiler, his conduct in wearing earplugs and turning his back to
the machine while standing in its pathway was both careless and a
cause of the accident. The court observed that "[i]t would be
unjust to burden CMI with liability in a situation where there is
clear evidence that Mr. Surace's own lack of care played a role
in bringing about the accident." Surace, 1995 WL 495123, at *9.
On appeal, Surace argues that the district court erred in
considering his conduct as part of the Azzarello threshold
analysis. He submits that such a consideration impermissibly
interjects concepts of negligence into a strict liability case.
Pennsylvania courts generally bar consideration of
contributory negligence in strict liability actions. See Kimco
Dev. Corp. v. Michael D's Carpet, 536 Pa. 1, 8, 637 A.2d 603, 606
(1993) (rejecting comparative negligence as a defense in a strict
liability case); see also Dillinger v. Caterpillar, Inc., 959
F.2d 430 (3d Cir. 1992).12 Indeed, the Pennsylvania Supreme
12
In Dillinger, after a thorough analysis of
Pennsylvania strict liability law, we concluded that the
"[Pennsylvania] Supreme Court has unequivocally excluded
negligence concepts from product liability cases" and, therefore,
the district court had erred in ruling that evidence of the
plaintiff’s contributory negligence was admissible to rebut
causation. 959 F.2d at 443, 444. Our opinion in Dillinger has,
however, not put to rest all questions relating to the manner in
which a plaintiff's negligence may be considered in a § 402A
case. Compare Kramer v. Raymond Corp., 840 F. Supp. 333, 335
(E.D. Pa. 1993) (relying on Dillinger for the proposition that
evidence of a plaintiff's conduct is admissible only to show that
the plaintiff has assumed the risk or misused the product), with
Kern v. Nissan Indus. Equip. Co., 801 F.Supp. 1438, 1441 (M.D.
Pa. 1992) (evidence of negligence is admissible to rebut
causation where the plaintiff's conduct triggered events
resulting in injury), and Kolesar v. Navistar Int'l Transp.
24
Court eschews the use of negligence concepts in a strict
liability case. See Lewis, 515 Pa. at 341, 528 A.2d at 593("negligence concepts have no place in a case based on strict
liability"). The theoretical basis for this approach is that
strict liability focuses on the condition of the product; it is
irrelevant that the injury was the result of the manufacturer's
or consumer's negligence. Kimco, 536 Pa. at 7-8, 637 A.2d at 605-
06; Lewis, 515 Pa. at 341, 528 A.2d at 593.
An individual plaintiff's failure to exercise care in the
use of a product is not relevant to whether the product is
unreasonably dangerous in the first place. See Fleck v. KDI
Sylvan Pools Inc., 981 F.2d 107, 119 (3d Cir. 1992) ("product
liability laws . . . encourage manufacturers to make safe
products even for the careless and unreasonable consumer");
Berkebile, 462 Pa. at 95 n.6, 100, 337 A.2d at 899 n.6, 902
(1975) (rejecting even the "reasonable" consumer standard for the
"ordinary" consumer); see also William J. McNichols, The
Relevance of the Plaintiff's Misconduct in Strict Tort Products
Liability, the Advent of Comparative Responsibility, and the
Proposed Restatement (Third) of Torts, 47 Okla. L.Rev. 201, 207
(1994) ("unreasonably dangerous" determination requires objective
inquiry into the "class of ordinary purchasers"). Therefore, the
district court's consideration of Surace's conduct runs afoul of
Pennsylvania § 402A jurisprudence.13
Corp., 815 F.Supp. 818, 822 (M.D. Pa. 1992) (same), aff’d, 995
F.2d 217 (3d Cir. 1993).
13
We note further that, even assuming arguendo, that
consideration of Surace's conduct had been appropriate under
25
The district court believed that by endorsing the Wade
factors, specifically, the fifth factor, (the user’s ability to
avoid danger by the exercise of care in the use of the product),
the Pennsylvania Superior Court has expressly sanctioned
consideration of a product user's conduct in failing to exercise
care as an appropriate factor in performing the threshold
analysis. Although the Pennsylvania Supreme Court has not
sanctioned use of the Wade factors, we have predicted that it
will. See supra at 14. That prediction nonetheless admits of the
possibility that the court will adopt some but not all of the
Wade factors. We note that at least one justice has commented on
the limitations of these factors in one respect. See Sherk v.
Daisy-Heddon, 498 Pa. 594, 625-26, 450 A.2d 615, 631-32 (1982)
(Larsen, J., dissenting) (noting that use of these factors as the
standard for determining whether a product is defective fails in
its "attempt to maintain a distance from negligence concepts”).
In applying the fifth Wade factor, the district court looked
to Surace's conduct, rather than to an ordinary product user's
conduct. We believe that it erred in so doing. The Wade factors
set forth an objective test to determine whether a product is
Azzarello, the district court erred in its application of the
facts. The district court first suggested that Surace's use of
earplugs was careless. However, SJA required its crew to wear
earplugs. Moreover, on appeal, CMI concedes that federal
regulations require the use of protective ear gear at the level
at which the profiler's alarms sounded (100 db). CMI Br. at 22.
Furthermore, although it was undisputed that Surace had turned
his back to the machine, it was also clear that the operator
moved the machine without being signaled, and that he had never
done this in the past. Surace Dep. at 150; Fisher Dep. at 44.
Therefore, a reasonable jury could infer that Surace's actions
were not careless.
26
defective; the "user" referred to in the factors is the ordinary
consumer who purchases or uses the product. Williams v. Briggs
Co., 62 F.3d 703, 707 (5th Cir. 1995) (applying Mississippi law
and noting that the fifth Wade factor focuses on "an ordinary
person's ability to avoid the danger by exercising care"); Riley
v. Becton Dickinson Vascular Access, Inc., 913 F. Supp. 879, 889-
90 (E.D. Pa. 1995)("we are concerned with the ability of the
[product's users], in general, to avoid the risks inherent in the
product, not with the particular circumstances of [a] plaintiff's
accident" (emphasis added)); Johansen v. Makita U.S.A., Inc., 128
N.J. 86, 100-01, 607 A.2d 637, 645 (1992) ("risk-utility analysis
is an objective test that focuses on the product" and the fifth
Wade factor requires consideration of "the extent to which the
hypothetical `average user' of the product -- not the plaintiff -
- could avoid injury through the use of due care."); see
generally Wade, supra, 44 Miss. L.J. at 847 ("strict liability
. . . is imposed on an objective basis").
The proper focus in applying the fifth Wade factor then is
an objective inquiry into whether the class of ordinary
purchasers of the product could avoid injury through the exercise
of care in use of the product, not whether this particular
plaintiff could have avoided this particular injury. Put
differently, the user's ability to avoid injury by the exercise
of care in the use of the product appears to be a design factor
that may justify a more or less exacting design depending on the
facts, but it is, in any case, not a vehicle for injecting a
plaintiff's (alleged) failure to exercise due care into the case.
27
Thus, the district court misapplied this factor.
We acknowledge that, notwithstanding the foregoing
discussion, it is unclear whether the Pennsylvania Supreme Court
would endorse even an objective application of the fifth Wade
factor in performing the Azzarello threshold analysis. The court
has held that the existence of due care in strict liability cases
is irrelevant, both with respect to the supplier and the
consumer. Berkebile, 462 Pa. at 94, 337 A.2d at 899. Although it
may appear that in doing so, that court has implicitly rejected
the fifth Wade factor, its concern is with divorcing negligence
concepts from strict liability proceedings;14 we do not believe
that the inquiry suggested by the fifth Wade factor injects
negligence into the action or diverts the focus away from the
condition of the product, but rather it informs the decision as
to whether the product, as designed, is not reasonably safe when
used as intended.
As Dean Wade explained in his seminal article enunciating
the factors, the focus of the inquiry is on the product:
Suppose that a consumer buys and wears shoes that are too
little or tires that are too large for his automobile,
or that he uses the product without following
instructions. If he is injured as a result and brings
14
See Berkebile, 462 Pa. at 97, 337 A.2d at 900 (holding
trial court erred in instructing on manufacturer's
foreseeability, as "[t]o require foreseeability is to require the
manufacturer to use due care in preparing his product. In strict
liability, the manufacturer is liable even if he has exercised
all due care."); see also Brandimarti v. Caterpillar Tractor Co.,
364 Pa. Super. 26, 33, 527 A.2d 134, 138 (1987) (where trial
court had instructed jury that plaintiff's "misuse", "abuse", or
"abnormal use" of the product was a defense to a strict liability
claim, the court cautioned that, on remand, the introduction of
the element of due care was not an issue).
28
suit, the problem may be posed in terms of whether he
was at fault and whether his fault should bar recovery
in an action based on strict liability. The initial,
and really significant, problem is whether the product
was duly safe or not. A good pair of shoes size 5 is
not unduly unsafe because it may be worn by a woman
with feet size 7 . . . . A product with adequate
instruction for its safe use may as a result be duly
safe, and it is not rendered unsafe by the fact that
the consumer did not follow the instructions. . . .
Further illustrations easily present themselves. There
is no drug, and perhaps no food, that is not dangerous
if too much of it is consumed. It is missing the real
point to pose the issue in terms of whether the
plaintiff was contributorily negligent in taking too
many pills or too much food.
Wade, supra, at 846 (footnotes omitted). The analysis does not
center on the due care vel non of the consumer but rather
highlights whether a product is duly safe for its intended use.
This is true of all of the Wade factors. For example, the
focus of the sixth factor, which considers "the user's
anticipated awareness of the dangers inherent in the product and
their avoidability, because of general public knowledge of the
obvious condition of the product, or of the existence of suitable
warnings or instruction," is on the product:
[T]he dangers of a hoe or an axe
are both matters of common knowledge and
fully apparent to the user. But it is not
necessarily sufficient to render a product
duly safe that its dangers are obvious,
especially if the dangerous condition
could have been eliminated. A rotary lawn
mower, for example, which had no housing
to protect a user from the whirling blade
would not be treated as duly safe, despite
the obvious character of the danger.
Note that the question here is whether the
product possesses the quality of due safety,
not whether the plaintiff assumed the risk
or was contributorily negligent.
29
Id. at 842-43.
Thus, insofar as the fifth Wade factor inquires into the
(objective) conduct of the average product user as a factor that
may justify a more or less exacting design depending on the
facts, it seems to be an appropriate ingredient in the Wade risk-
utility balance, which itself seems a useful approach to
performing the Azzarello threshold analysis. We thus predict
that the Pennsylvania Supreme Court would follow that approach.
But only that Court can tell us, see Hakimoglu, 70 F.3d at 302-
304 (Becker, J., dissenting), and we hope that it will do so
soon.
Properly applying the fifth Wade factor to determine the
objective user's ability to avoid danger by the exercise of care
in the use of the profiler, we find that the factor weighs
slightly in Surace's favor. Although an individual working on
the ground behind the profiler could, in theory, avoid danger by
exercising care to always remain out of the machine's blind spot,
it seems likely that ordinary workers at a highway construction
site will occasionally find it necessary to step behind the
machine, and that such workers may, like Surace, be habituated to
the profiler's alarm and thus unable to avoid danger if the
profiler's operator backs up without signaling.
3. Other Wade Factors
We do not discuss the other Wade factors except in passing
because they are either neutral or favor Surace in the risk-
utility balance. The profiler is, of course, useful and
desirable. (Wade factor one) There does not appear to be a
30
substitute product that would meet the same need and not be
unsafe. (factor three) Finally, it seems feasible for the
manufacturers to spread any loss implicated by a safer design in
a variety of ways. (factor seven)
4. Summary
We have rejected both the factual and legal bases of the
district court's holding that the profiler was not defective as a
matter of law, and conclude that the threshold Azzarello test has
been met. Specifically, when we evaluate the risk-utility
factors in the light most favorable to Surace, we conclude that
the profiler may pose a grave risk of harm absent a
lockout/tagout device, in view of the phenomenon of habituation.
The summary judgment must therefore be set aside and the case
must go to the jury, though, of course, the jury may find for the
defendant if it determines that the facts do not support a
finding of defect. See supra at 13.
There is, however, one other problem in the case -- that
presented by the district court's conflation of the causation
issue into the Azzarello analysis.
III. CAUSATION; SEPARABILITY FROM AZZARELLO ANALYSIS
In a footnote in its opinion, the district court indicated
that, although contributory negligence is irrelevant in a strict
liability case, consideration of Surace's conduct in wearing the
earplugs and turning his back to the machine was appropriate as
part of the Azzarello threshold analysis to the extent that it
bears on causation. Surace, 1995 WL 495123 at *8 n.10. We hold
that it was error for the district court to have weighed the
31
issue of causation as a factor in resolving the legal question of
risk allocation.
There are two elements to a strict liability claim. The
plaintiff must establish that: (1) the product was defective; and
(2) the defect was a proximate cause of the injury. See
Berkebile, 337 A.2d at 898. It is only the first element that a
court must address as part of the Azzarello threshold analysis.
See Azzarello, 480 Pa. at 556-58, 391 A.2d at 1025-26; see also
Hon v. Stroh Brewery Co., 835 F.2d 510, 512-13 n.3 (3d Cir. 1987)
(focusing on whether the product was defective under Azzarello
and specifically declining to address proximate cause); Phillips
v. A-Best Prods. Co., 542 Pa. 124, 131, 133 n.7, 665 A.2d 1167,
1171, 1171 n.7 (1995) (noting that its decision rested not on
whether the product was defective under Azzarello, but rather on
the lack of causation). This threshold analysis focuses on the
condition of the product at the time it is marketed, and whether
that condition justifies placing the risk of loss on the
manufacturer. Azzarello, 480 Pa. at 559, 391 A.2d at 1027.
If the plaintiff ultimately proves that the product is
defective, then the distinct question of whether the defect
proximately caused the injury must be resolved. Pacheco v. Coats
Co., 26 F.3d 418, 422 (3d Cir. 1994); see generally Wade, supra,
at 842-43. Should the court determine that the defect was not a
legal cause of the injury, then the defendant is entitled to
judgment as a matter of law. Although the district court
followed the correct methodology in balancing the profiler's
inherent risks against its utility, it erred in factoring the
32
specific circumstances surrounding the cause of the injury into
this threshold inquiry.
IV. ALTERNATIVE GROUNDS FOR SUMMARY JUDGMENT
CMI moved for summary judgment on several alternative
grounds that the district court did not reach. In view of the
foregoing discussion, we must reach them. See United States v.
Taylor, 98 F.3d 768, 774 (3d Cir. 1996) (citing Colautti v.
Franklin, 439 U.S. 379, 397 n.16, 99 S. Ct. 675, 686 n.16, 58
L.Ed.2d 596 (1979) (appellee may assert any ground in support of
the judgment below, whether or not that ground was relied upon or
even considered by the district court)), cert. denied, -- U.S.
00, 117 S. Ct. 1016, -- L.Ed.2d -- (1997). Only two of these
grounds merit discussion.15
A. Intended Use
The district court observed in a footnote in its opinion
that the evidence suggested the profiler was not being used as
intended at the time of the accident. Under Azzarello, the
inquiry is whether the product was safe for its intended use.
Azzarello, 480 Pa. at 559, 391 A.2d at 1027; Marshall, 426 Pa.
Super. at 162, 626 A.2d at 624. Although it did not rely on this
basis in granting summary judgment, the district court opined
that "[i]t is doubtful that Plaintiffs would be able to convince
[the district court], or a jury, that using the profiler without
15
CMI also sought summary judgment on the grounds that the
profiler had been "substantially changed" and that Surace's
conduct was the sole cause of the accident, but these claims are
patently lacking in merit.
33
the conveyor system was a way in which the profiler was intended
to be used." Surace, 1995 WL 495123, at *9 n.11.
On appeal, CMI continues to assert that liability should not
be imposed because the profiler was not used as intended. CMI
submits that the profiler was not meant to mill rumble strips,
and that it was not meant to be operated without the conveyor
attached. Because the profiler was being operated without the
conveyor attached, the debris generated by it had to be picked up
manually. At the time of the accident, Surace was sweeping or
shoveling debris out of its pathway. Surace testified that this
was both the first time he had ever worked with the profiler
without the conveyor attached, or that anyone had been injured
when the machine was in back-up mode.
It is clear that "[u]nless the use giving rise to a strict
liability cause of action is a reasonably obvious misuse
. . . or unless the particular use . . . is clearly warned
against, the manufacturer is not obviously exonerated." Metzgar
v. Playskool, Inc., 30 F.3d 459, 465 (3d Cir. 1994). CMI's
Engineering Manager John Frost Phillips testified that the
machine was not intended to be operated without the conveyor
attached, and that it was not intended to mill rumble strips.
Although Phillips testimony is probative, there was no warning in
the manual indicating that the conveyor should not be removed.
Moreover, the profiler had an on/off switch to control the
conveyor and, obviously, the profiler could be operated without
the conveyor attached and used to mill rumble strips. We hold
that, on the record before us, it cannot be determined as a
34
matter of law that such use of the profiler was a "reasonably
obvious misuse." Accordingly, this cannot serve as an
appropriate basis for summary judgment.
B. Assumption of Risk
CMI argues that it is entitled to summary judgment because
Surace assumed the risk of his injuries. Assumption of the risk
is a viable defense to strict liability actions. McCown v.
International Harvester Co., 463 Pa. 13, 15, 342 A.2d 381, 382
(1975). To prevail on an assumption of the risk defense, a
defendant must show "that the plaintiff knew of the defect and
voluntarily and unreasonably proceeded to use the product or
encounter a known danger." Wagner v. Firestone Tire & Rubber Co.,
890 F.2d 652, 657 (3d Cir. 1989)(citation omitted). "[W]hether
the plaintiff knows of the existence of the risk, or whether he
understands and appreciates its magnitude . . . is a question of
fact, usually to be determined by the jury under proper
instructions from the court. The court may itself determine the
issue only where reasonable men could not differ as to the
conclusion." Mucowski v. Clark, 404 Pa. Super. 197, 202, 590 A.2d
348, 350 (1991) (quoting Staymates v. ITT Holub Indus., 364 Pa.
Super 37, 49, 527 A.2d 140, 146 (1987)).
CMI asserts that Surace was aware of the danger of being in
the path of the profiler while it was operating. To infer
assumption of the risk from Surace's conduct, the conduct “must
be such as fairly to indicate that [Surace was] willing to take
his chances." Wagner, 890 F.2d at 657 (quoting Restatement
(Second) of Torts § 496C, comment h). It is undisputed that
35
Surace was responsible for signaling the operator when to reverse
and that Snyder reversed the profiler without waiting for a
signal from Surace. The evidence further indicates that Snyder
had never before reversed the profiler without being signaled.
Moreover, there is no evidence that Surace knew that, due to
habituation, he was unlikely to hear the profiler's backup alarm
if Snyder should advance without signaling. Therefore, the
evidence is insufficient to establish as a matter of law that
Surace knowingly assumed the risk of injury when he stepped into
the profiler's pathway. Accordingly, summary judgment is not
warranted on this ground.
V. BRINK'S EXPERT TESTIMONY
Surace challenges the district court's exclusion of Harold
R. Brink as an expert witness. Surace had proffered Brink, an
electromechanical engineer, to testify to the inadequacy of the
profiler's warning devices from an engineering standpoint.
Brink's "expert opinion" was that the profiler was defective
because of the obstructed view, and that the back-up alarm was
insufficient to alert crew workers because of the phenomenon of
habituation. The district court excluded Brink's testimony,
concluding that he did not meet the Supreme Court's test for the
admission of expert witnesses set forth in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469(1993), and interpreted by us in In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717 (3d Cir. 1994) ("Paoli"). "A district
court's ruling on admissibility of evidence is reviewed for abuse
of discretion, `but to the extent the district court's ruling
36
turns on an interpretation of a Federal Rule of Evidence [its]
review is plenary.’" Paoli, 35 F.3d at 749.
The district court excluded Brink's testimony under
Fed. R. Evid. 702, which provides:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training, or education, may testify thereto in
the form of an opinion or otherwise.
The first requirement under Rule 702 is that the witness
“proffered to testify to specialized knowledge must be an
expert.” Paoli, 35 F.3d at 741. Although the Rule mandates a
policy of liberal admissibility, both with respect to the
substantive as well as the formal qualification of experts, id.,we agree with the district court that Brink did not qualify.
Brink earned a degree in electrical engineering from Lehigh
University and has had an extensive career in electrical and
mechanical engineering, including twenty years of employment with
Mack Trucks. However, as the district court noted, Brink's
theory of liability "hinged on habituation," an area in which
Brink has no training and no experience. Surace contends that
through his work experience, Brink "has become highly familiar
with the concept of habituation and the need to avoid this
phenomenon when designing construction machinery." But the
record does not support this contention. Regarding habituation,
Brink only averred generally that "over the years, I've learned
that people can tune things out." Significantly, his testimony
37
focuses on making the machines "user friendly" as opposed to
considering the safety implications of a device.16
Moreover, there is no evidence in the record that Brink had
experience in designing equipment from a human safety standpoint.
Indeed, in his deposition testimony, Brink testified that he did
not design back-up alarms; rather they were purchased by Mack and
he would make sure they were mounted and wired properly. Brink
further stated that he did not remember ever having tested back-
up alarms, and that his knowledge of back-up alarm systems is
limited to the extent to which they could be considered part of
the design of an electrical/mechanical system.
Although he was a member in the Human Factors Society, Brink
admitted that he had not read any literature on the phenomenon of
habituation stemming from the alarms on construction machinery,
nor had he ever participated in a habituation testing or study.
Most significantly, Brink admitted that he relied on Dr. Lambert
as the sole authoritative basis for his conclusions regarding
habituation. Indeed, when questioned about the specifics of
habituation, Brink replied "I'll let [Lambert] be the expert on
16
For example, Brink described his human factors experience
as follows:
Everything was aimed at making it as easy as possible
for the person to operate the vehicle as far
as locations of instruments and controls,
location of steps for entrance and egress . .
. we tried to design our product that was as
manufacturable and maintainable as possible.
So to that extent, we always had human
factors in our mind . . . . We never
called it human factors, but we were
interested in how the product related to the
customer or user.
38
this." While we have recognized that there is no set litmus test
to qualify as an expert, see Hammond v. International Harvester
Co., 691 F.2d 646, 653 (3d Cir. 1982) (permitting person with
sales experience in automotive and agricultural equipment, who
had also taught high school automobile repair, to testify as an
expert witness in products liability action involving tractors),
there is no evidence in the record to suggest that Brink
possesses sufficient knowledge of the phenomenon of habituation,
either through training or experience, to testify as an expert.
Because habituation was the crux of his theory of liability, and
indeed the central issue of design defect in the case, the
district court properly concluded that Brink did not qualify as
an expert.
VI. CONCLUSION
For the foregoing reasons, the judgment of the district
court will be reversed and the case remanded for further
proceedings consistent with this opinion. However, the judgment
will be affirmed insofar as it precluded the Brink expert
testimony.
39