Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-16-1994

Habecker v. Clark Equip. Co.
Precedential or Non-Precedential:

Docket 93-7177




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                          No. 93-7177
                          ___________

          CONNIE L. HABECKER, Individually and as Personal
          Representative of the Estate of JOHN R. HABECKER,
          Deceased; JOHN MICHAEL HABECKER, Minor, by CONNIE
          L. HABECKER, his Parent, Natural Guardian and
          Next Friend,

                               Appellants

                         vs.

          CLARK EQUIPMENT COMPANY; FORKLIFTS, INC.
                           ___________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
                    (D.C. Civil No. 86-00352)
                           ___________

                             Argued
                        January 25, 1994
     Before:   MANSMANN, NYGAARD and SEITZ, Circuit Judges.

                   (Filed September 16, 1994)
                           ___________

Richard W. Hollstein, Esquire (Argued)
CLARK LADNER FORTENBAUGH & YOUNG
2005 Market Street
One Commerce Square - 22nd Floor
Philadelphia, PA 19103

Stanley B. Boychuck, Esquire
SWANSON, MARTIN & BELL
One IBM Plaza
Chicago, IL 60611

          Counsel for Appellee - Clark Equipment Company

John A. Statler, Esquire (Argued)
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, PA    17108-1268

            Counsel for Appellee - Forklifts, Inc.


Samuel Posner, Esquire
Gerald F. Posner, Esquire (Argued)
712 Penobscot Building
Detroit, MI 48226

            Counsel for Appellants
                             ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,   Circuit Judge.

            We are revisiting this products liability case after a

third trial on the alleged defectiveness of a forklift for its

manufacturer's failure to equip it with an operator restraint

system.   We focus specifically on issues related to the

forklift's crashworthiness under Pennsylvania law.   Our task is

to determine whether the district court's evidentiary rulings,

permitting evidence proffered by the defendant-manufacturer

pertaining to its lack of knowledge of such devices at the time

of the sale, the state of the art, and the desirability of such

restraints as viewed by the industry, were consistent with

Pennsylvania's crashworthiness law and its public policy which

underlies it.



                                 I.

            John Habecker was a civilian employee of the New

Cumberland Army Depot when the forklift he was backing down a

ramp tumbled from the side of the ramp.    Thrown from the
forklift, Habecker was tragically killed when the forklift fell

on top of him.   The forklift was manufactured in 1977 by Clark

Equipment Company and was not designed with an operator restraint

system (ORS), nor had one subsequently been installed.

          Habecker's estate and family1 ("Habecker") brought a

products liability action in the United States District Court for

the Middle District of Pennsylvania against Clark and Forklifts,

Inc., the corporation that leased the forklift to the Army,

alleging that the forklift was defective due to the lack of an

ORS, for example, a seat belt.2   After trial, the jury returned a

verdict for the defendants.

          On appeal, we reversed and remanded for a new trial on

the operator restraint issue, reasoning that the district court

erred in refusing to permit Raymond Brandt to testify as an




1
 .        Habecker's wife, Connie L. Habecker, brought this suit
individually and as personal representative of his estate, as
well as on behalf of Habecker's son, John Michael, as parent,
natural guardian and next friend.
2
 .        Originally suit was also brought against Copperloy
Corporation, the maker of the ramp, and the claims against all
parties included strict liability, breach of implied warranty and
negligence. The implied warranty and negligence claims were
dismissed prior to the first trial. The strict liability
theories were based on alleged defects in both the forklift and
the ramp. Habecker submitted that the forklift was defective
because it had a sticking throttle and had not been designed with
an ORS. The ramp was allegedly defective because it lacked
adequate instructions on how to properly secure it and because it
did not have an overload relief valve that would keep it from
overturning.
expert for the plaintiffs.   Habecker v. Copperloy Corp., 

, 52-53 (3d Cir. 1990) (Habecker I).3

          In that appeal, Habecker had also argued that the

district court erred by continually admitting, over objections,

extensive testimony and evidence about industry standards,

government regulations, and other "state of the art" matters

concerning operator restraints, asserting that such evidence was

inadmissible in a products liability suit governed by

Pennsylvania law.   We found it unnecessary to address this issue

because the case had to be retried.    Nonetheless, we stated:

"The district court has recognized the problem, and we are

confident that it will carefully limit the admissibility of such

evidence on re-trial."   

          Finally, Habecker argued that the district court, in

eliminating the retrofit issue, also dismissed the issue of

failure to give a post-sale warning.   We expressly held that the

district court only eliminated the failure-to-retrofit issue, not

the failure-to-give-a-post-sale-warning issue.   

          On retrial, the district court permitted Clark to offer

evidence relating to its theory of the effectiveness of ORSs in

1977, demonstrating that the industry had been unable to

determine whether ORSs reduced the risk of serious injury to the

operator and that it was only later, after the development of

3
 .        Additionally, we affirmed the district court's grant of
a directed verdict in favor of Copperloy for lack of a
substantial factor supporting causation, and we affirmed the
court's grant of a partial directed verdict in favor of Clark and
Forklifts on the defective throttle issue.
more sophisticated computer modeling, that the industry decided

it was desirable to equip forklifts with such systems.       Clark

argued that as of 1977 a manufacturer could not have known

whether ORSs created more risks than they eliminated.       Once again

the jury returned a verdict for the defendants.

            On appeal, in Habecker v. Clark Equipment Co., 

(3d Cir. 1991) (Habecker II), we distinguished evidence of

what safety measures were feasible at the time a product was

designed and evidence of what safety measures were known to be

desirable at that time.    Noting that this case was one of

crashworthiness, we held that "[l]iability is imposed on a

manufacturer in a case for a design defect because an

alternative, feasible, safer design would have lessened or

eliminated the injury plaintiff suffered."    

   We

concluded that:
          "[i]f no such alternative feasible design
          existed when the product was manufactured,
          then the design cannot be said to be
          `defective,' even if more recent technology
          has rendered a safer design feasible.
          Therefore, the factfinder can only determine
          whether a particular design was defective
          after hearing evidence about what designs
          were feasible at the time the product was
          manufactured and whether they were in fact
          safer."

consistent with Pennsylvania law, any evidence

of what was or was not known about the desirability of ORSs in

1977.
            [T]he only question for the jury was whether
            an operator restraint system is an "element
            necessary to make [a forklift] safe for its
            intended use," 

, a
          question that is to be answered on the basis
          of all the knowledge available at the time of
          trial. Evidence about what Clark knew or
          could have known about the desirability of
          operator restraint systems at the time of
          manufacture is not relevant to that question.

  We found that there was a substantial possibility

that the inadmissible evidence influenced the jury's

determination, focusing its attention on Clark's behavior and

decision-making rather than on the product's defectiveness.

          Finally, we held that the district court took a narrow

view of its own authority on remand.   While the parties were

preparing for the second trial, the district court issued an

order stating that pursuant to our opinion in Habecker I, the
only issue for re-trial was whether the forklift was defective

when it left Clark, the manufacturer, in 1977.   The district

court held that the parties would be confined to presenting

evidence only through the witnesses listed in their original pre-

trial memorandum.   The order prevented Habecker from further

discovery and from raising new theories of liability.   We stated

that it was not our intention to so restrain the second trial,

and although we expressed no view on the direction the district

court should take, we held only that the decisions on whether to

allow new claims, whether to permit further discovery, and

whether to hear additional evidence were all within the district

court's discretion.

          On remand for the third trial, but prior to it,

Habecker filed a motion to exclude all state of the art evidence

as well as letters and studies purporting to show the dangers of
ORSs in forklift turnovers.     There was extensive discussion on

this issue in chambers at the pretrial conference on January 29,

1993.   Clark argued that Habecker II permitted evidence of

feasibility in a crashworthiness case, i.e., that if Habecker

offered the 1983 ORS as an "alternative, safer design,

practicable under the circumstances," Habecker II at 214; see

also Kupetz at ____, then defense evidence of its feasibility in

1977 would become relevant.     The district court granted

Habecker's motion, but in consideration thereof, limited Habecker

to general evidence about ORSs -- excluding any evidence about

the 1983 ORS.   631A.

          Further, the district court permitted, over strenuous

and continuous objections, defense testimony about user letters

and concerns pertaining to ORSs, engineering concerns, and

concerns of various corporations, committees and societies, all

of which impact the knowledge available to Clark regarding the

ORSs' desirability.     The jury returned a defense verdict, and

Habecker now appeals once more.



                                 II.

                                  A.

          Since the adoption of Section 402A of the Restatement

(Second) of Torts,4 the Pennsylvania Supreme Court has remained

4
.          (1) One who sells any product in a defective
           condition unreasonably dangerous to the user
           or consumer or to his property 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
faithful to its view that negligence concepts have no place in a

products liability trial.   See Lewis v. Coffing Hoist Div., Duff-

Norton, 

, 593 (Pa. 1987).5   The test for

defectiveness is whether the "product left the supplier's control

lacking any element necessary to make it safe for its intended

use or possessing any feature that renders it unsafe for the

intended use."   Azzarello v. Black Bros. Co., 

, 1027

(Pa. 1978).   "[I]t is the product itself which is on trial, and

not the manufacturer's conduct."   

.   In
(..continued)
          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.

          (2) The rule stated in Subsection (1)
          applies although (a) the seller has exercised
          all possible care in the preparation and sale
          of his product, and (b) the user or consumer
          has not bought the product from or entered
          into any contractual relation with the
          seller.

Webb v. Zern, 

, 854 (Pa. 1966) (quoting Restatement
(Second) of Torts § 402A (1965)).
5
 .        In Lewis the Court also endorsed our opinion in
Holloway v. J. B. Systems, Ltd., 

(3d Cir. 1979)
(holding that it was inappropriate to admit evidence of industry
standards and practices in a products liability trial). 

. See also Azzarello v. Black Bros. Co., 

, 1027 (Pa. 1978) (holding that the term "unreasonably
dangerous" has no place in the instructions to the jury in a
products liability case); McCown v. International Harvester Co.,

(Pa. 1975) (rejecting contributory negligence as a
defense to actions grounded in products liability); Berkebile v.
Brantly Helicopter Corp., 

(Pa. 1975) (holding that,
for policy reasons, a manufacturer should be the guarantor of its
products' safety, reasoning that the distinction between strict
liability and negligence is that the exercise of due care in
strict liability cases is absolutely irrelevant).
Lewis, a case concerning the defectiveness of a control box for a

hoist, the Pennsylvania Supreme Court held:
          Having reached the conclusion that evidence
          of industry standards relating to the design
          of the control pendent involved in this case,
          and evidence of its widespread use in the
          industry, go to the reasonableness of the
          appellant's conduct in making its design
          choice, we further conclude that such
          evidence would have improperly brought into
          the case concepts of negligence law. We also
          conclude that such evidence would have
          created a strong likelihood of diverting the
          jury's attention from the appellant's control
          box to the reasonableness of the appellant's
          conduct in choosing its design. For those
          reasons we conclude that the trial court
          correctly ruled the evidence to be irrelevant
          and hence inadmissible. It is well
          established that a trial court should exclude
          evidence which has a tendency to distract the
          jury from its main inquiry or confuse the
          issue.

   For a general discussion of the development of

products liability law in Pennsylvania see Dillinger v.

Caterpillar Inc., 

, 435-37 (3d Cir. 1992).



                                 B.

          The parties agree that this case focuses on the

crashworthiness of the forklift.      In Habecker II we noted that

although the Pennsylvania Supreme Court had yet to adopt the

crashworthiness doctrine for products liability cases, we had

previously predicted that it would adopt it, Habecker 

(citing Roe v. Deere & Co., 

, 153 n.2 (3d

Cir. 1988)).   We explained that "[u]nder the doctrine of

crashworthiness, the manufacturer's liability for producing
defectively designed products includes the liability for failing

to provide safety features and liability for providing inadequate

safety features.6    Habecker II at 213.   In other words, the

crashworthiness doctrine imposes liability on the manufacturer

not for causing the accident, but rather for failing to minimize

the injuries or even increasing the severity of the injuries

sustained in an accident brought about by a cause other than the

alleged defect.     We further discussed our previous decision in

Huddell v. Levin, 

(3d Cir. 1976), where we predicted

that the New Jersey Supreme Court would adopt the crashworthiness

doctrine and set forth the criteria required for a prima facie

case.7

          We viewed our task in Habecker II as predicting the

definition the Pennsylvania Supreme Court would give the

crashworthiness doctrine and specifically, what evidence it would

find relevant in determining liability.     

between evidence of feasibility and evidence of desirability,

although we did not expressly predict the adoption of the Huddell

criteria for Pennsylvania law.    Recently the Pennsylvania
6
 .        The theory of products liability is applied to three
types of defects: design, manufacturing, and marketing
(warnings). The crashworthiness doctrine implicates the
overtures of design defects.
7
 .        There we held that the plaintiff must establish (1)
that the design in question was defective, offering proof of an
alternative, safer design, practicable under the circumstances;
(2) what injuries, if any, would have resulted had the
alternative, safer design been used; and (3) the extent of
enhanced injuries attributable to the defective design. Habecker
II at 214 (quoting Huddell v. Levin, 

, 737-38 (3d
Cir. 1976)).
Superior Court issued an opinion expressly recognizing the

crashworthiness doctrine as a theory of recovery in Pennsylvania

and requiring the establishment of the same criteria we set forth

in Huddell for a successful crashworthiness case.   Kupetz v.

Deere and Co., LEXIS 1621 (Pa. Superior 1994).8   In Kupetz the

Superior Court stated:
          The principle behind the "second collision"
          concept is that, because the way the vehicle
          has been manufactured, a person's injuries
          have been aggravated unnecessarily; and such
          a concept has equal applicability, whether
          the person's second collision is with the
          interior of the vehicle or the exterior
          ground.

               The effect of the crashworthiness
          doctrine is that a manufacturer has a legal
          duty to design and manufacture its product to
          be reasonably crashworthy. In terms of
          strict product liability, this means that a
          manufacturer has to include accidents among
          the "intended" uses of its product. A
          manufacturer who fails to fulfill this legal
          duty will be liable to the passenger of a car
          whose injuries are increased due to the
          design defect in the automobile. Liability
          will attach even though the defect in
          manufacture or design did not cause the
          initial accident or impact.


8
 .        Shortly after the adoption of § 402A in Webb, the
Pennsylvania Supreme Court held that "lack of proper safety
devices can constitute a defective design for which there may be
recovery." Bartkewich v. Billinger, 

, 605 (Pa.
1968). Further, in McCown v. International Harvester Co., 

(Pa. 1975), the Court recognized that in a products
liability action the defect itself did not have to be the cause
of the accident. McCown was permitted to recover where the
defect was not the cause of the collision, but did cause his
injuries. These cases provided the basis for the Superior
Court's determination that the Pennsylvania Supreme Court has
implicitly adopted the crashworthiness doctrine. Kupetz at 11-
17.


(citations omitted).9

            A products liability cause of action in Pennsylvania

has three requirements; it must be shown that:    (1) the product

was defective, (2) the defect existed while the product was in

the control of the manufacturer, and (3) the defect was the

proximate cause of the injuries.     Walton v. Avco Corp., 

, 458-59 (Pa. 1992).    The Superior Court in Kupetz, however,

explained that to establish a cause of action on a

crashworthiness theory, a subset of a products liability action,

it must be shown:   (1) that the design of the vehicle was

defective; 2) that when the design was made, an alternative,

safer design, practicable under the circumstances existed; (3)

what injuries, if any, the plaintiff would have received had the

alternative, safer design, been used; and (4) what injuries were

attributable to the defective design.    We predict that the

Pennsylvania Supreme Court will adopt the view set forth in

Huddell and then subsequently by the Superior Court in Kupetz.

As we have already held in Habecker II that this is a

crashworthiness case, we must analyze the district court's

conduct of the trial pursuant to the analysis set forth in

Kupetz.10
9
 .        We note that for the elements of the crashworthiness
doctrine, Kupetz cited Dorsett v. American Isuzu Motors, Inc.,

, 1218 (E.D. Pa. 1992), which cited Habecker II
and Huddell for the same language. It also cited Craigie v.
General Motors Corp., 

, 356-57 (E.D. Pa.), in
which the court analyzed Huddell.
10
 .        The record establishes that the district court
conducted the second trial as a crashworthiness case, pursuant to
the elements set forth first in Huddell and then in Habecker II.
                                III.

                                 A.

            Habecker argues that the district court erred in

permitting defense testimony regarding the knowledge available to

Clark at the time of the forklift's design about the desirability

of ORSs.    A corollary is Habecker's argument that the district

court erred in forcing her to elect whether to refrain from

offering any evidence about the 1983 ORS or to admit it and "open

the door" for Clark to counter with evidence concerning the state

of the art, industry standards, its conduct in the development of

the 1983 system, and why the 1983 ORS was not feasible in 1977.11

635A-36A.    We review these decisions for abuse of discretion, but

to the extent the district court's rulings were predicated on an

erroneous interpretation of law, our review is plenary.   In re

Japanese Elec. Prod. Antitrust Litig., 

, 257 (3d Cir.

1983), rev'd on other grounds, 

(1986).

            Clark had created two safety videos depicting the

breakthrough in technology that enabled it to design the 1983

ORS, and demonstrating the system's superiority.   The target
11
 .        The 1983 ORS was invented in 1983 and then patented in
1986. It was allegedly not apparent until 1983, with the advent
of proper computer technology, that Clark was able to determine
that some type of ORS was safer than nothing at all. The
evidence at the second trial suggested that as of 1977, Clark
could not have known whether an ORS created more risks than it
eliminated. Habecker II at 213. We held in Habecker II that it
was irrelevant to the issue of defectiveness when the industry
determined that placing an ORS on a forklift was more desirable
than not.
audience was forklift drivers in general, and the videos

described what to do in the event of a rollover accident.    During

trial Habecker attempted to offer the Clark videos as evidence in

rebuttal to Frank Entwisle's testimony, but was not permitted to

do so (1729a).   Entwisle's testimony included, inter alia, the

contents of the user letters, concerns, and objections to seat

belts, and the California Department of Industrial Relations'

decision not to require an ORS on forklifts (1562a-71a).    He also

testified about the concerns engineers had in deciding whether to

put on a seat belt (1575a-86a); that in 1977 there was no

literature or scientific studies available which indicated seat

belts were safer (1578a); the opinion and concerns of the

American Society of Mechanical Engineers (1589a-94a); that

General Motors had opinions against seat belts (1607a); and the

lack of a recommendation for an ORS in the National Safety

Council Manual in effect during 1977 (1645a-46a).   Additionally,

Entwisle testified that in 1977 there was no acceptable ORS that

could be put on a forklift because the 1983 ORS was not patented

until 1986 (1591a, 1595a, 1603a-1604a).

          Clark argues that the purpose of Entwisle's testimony

was to clarify that operator restraint systems similar to the

1983 ORS did not exist in 1977 (1514a-15a).   This argument,

Habecker contends, despite Clark's admission of feasibility,12 is

12
 .        We noted in Habecker II that Clark conceded that an ORS
would have been feasible in 1977 (261a). Clark interprets its
"admission" of feasibility at the second trial, that seat belts
and wings could be placed on a forklift, not to constitute an
admission of the feasibility of all other particular ORS designs.
The district court, in a thorough opinion, ruled that the
unequivocally impermissible in a Pennsylvania products liability

trial.   We agree.   Clark insists that Habecker misrepresents the

record when it states that this information was offered to show

knowledge, conduct, desirability or state-of-the-art.13   Habecker

argues that the evidence Clark introduced is precisely what

Habecker II held to be improper, that Clark's evidence is

inadmissible and improperly focuses the jury's attention on

Clark's conduct, rather than on the forklift itself.   Again, we

agree.

          Clark contends that there is a qualitative difference

between one type of ORS (automotive seat belt and wing) and

another (the 1983 ORS).   Clark has consistently argued throughout

this litigation that while the automotive seat belt and some type

of wing design was feasible in 1977, it was not safer.

Conversely, the 1983 ORS design was not feasible in 1977,

although it may be safer in some circumstances.   According to

Clark, our result denies it a jury trial because it forces the

jury to treat differing types of operator restraint systems



(..continued)
defendant had only admitted the feasibility of a seat belt and
some type of wing (423a). Habecker argues that the district
court's interpretation of Clark's admission constitutes
reversible error. We note that in Habecker II we held that Clark
had conceded that an ORS was feasible in 1977. We must affirm
the district court's decision here absent an abuse of discretion.
We see no abuse here.
13
 .        Clark insists the testimony was offered so that the
jury would be able to evaluate the opinion of Mr. Entwisle based
upon those studies which existed and which formed the basis of
his opinion.
identically.    It is essentially deprived of presenting the

feasibility of its ORS to the jury.

           Clark forcefully argues that design evolution and the

question of feasibility are linked together in that, over time,

safety features are invented.    Clark opines that it is common

knowledge that the first design of a product may be altered and

improved drastically over the years as new technologies are

incorporated.    Although the design of the Model T was feasible 60

years ago, current automobile designs were not; for example, air

bags and anti-lock brakes are recent safety improvements.



                                  B.

           In Pennsylvania the arguments Clark propounds are

irrelevant.     Pennsylvania's public policy is such that

manufacturers of products are encouraged to make them as safe as

possible, as soon as possible.     In Azzarello v. Black Bros. Co.,

, 1024 (Pa. 1978), the Pennsylvania Supreme Court

stated that the supplier of a product is the guarantor of its

safety.   In that regard, evidence of Clark's conduct is

absolutely irrelevant.    The forklift is on trial here, Lewis v.
Coffing Hoist Div., Duff-Norton, 

, 593 (Pa. 1987);

nothing Clark did or knew in its decision making capacity or

design choice is relevant to that inquiry.14

14
 .        Pennsylvania is not alone in emphasizing the safety of
the product, rather than the manufacturer's conduct, in design
defect cases. See, e.g., Barker v. Lull Eng'g Co., 

,
447 (Cal. 1978) (emphasizing its "continued adherence to the
principle that, in a product liability action, the trier of fact
must focus on the product, not on the manufacturer's conduct");
          In Habecker II we distinguished between feasibility and

desirability.   Feasibility means:   1) capable of being done,
(..continued)
Voss v. Black & Decker Mfg. Co., 

, 207 (N.Y. 1983)
(stating that in a design defect case, "[t]he focus shifts from
the conduct of the manufacturer to whether the product, as
designed, was not reasonably safe . . . . A manufacturer is held
liable regardless of his lack of actual knowledge of the
condition of the product").

          Other states disagree. See, e.g., Prentis v. Yale Mfg.
Co., 

, 184 (Mich. 1984) (stating that "[a]lthough
many courts have insisted that the risk-utility tests they are
applying are not negligence tests because their focus is on the
product rather than the manufacturer's conduct, . . . the
distinction on closer examination appears to be nothing more than
semantic . . . . The underlying negligence calculus is
inescapable"); Feldman v. Lederle Lab., 

, 385 (N.J.
1984) (stating that "[w]hen the strict liability defect consists
of an improper design . . . reasonableness of the defendant's
conduct is a factor in determining liability"). See also Lewis
v. Coffing Hoist Div., Duff-Norton, 

, 593-94 (Pa.
1987).

          The rationale for strict liability was originally
adopted for defective products, that is, products that were not
as the manufacturer intended. Manufacturers were deemed to be in
the best position to provide "insurance" against accidents by
spreading the cost of accidents among all consumers of the
product. The theory concludes that manufacturers would self-
impose the most efficient level of care if they were held liable
for defects. Restatement (Second) of Torts § 402A cmts. a-d
(1965). Furthermore, manufacturers have better access to
information about their manufacturing processes. Thus, the
theory maintains that it is sensible to require manufacturers to
come forward with this information.

          This rationale is not on all fours with design defects,
where the product is as the manufacturer intended. See, e.g.,

(discussing the incompatibility of
strict liability and design defects). For example, cost
spreading is not effective when the entire product line is
defective and every consumer is equally at risk, and further the
rules of discovery detract from the information-access argument.
We acknowledge, however, that a strict liability regime, as
opposed to negligence, does provide manufacturers with added
incentive to design their products with care.
executed, or effected, possible of realization; 2) capable of

being managed, utilized, or dealt with successfully.        Webster's

Third New International Dictionary of the English Language

Unabridged.   Desirability means the quality, fact, or degree of

being desirable or having worth, and desirable means worth

seeking or doing as advantageous, beneficial or wise.       

the district court's strenuous effort to attempt to

follow our mandate from Habecker II.     The line between

feasibility and desirability is certainly a fine one.       To argue

the lack of feasibility is to argue that the 1983 ORS was

incapable of being placed on the forklift in 1977 for some reason

other than its nonexistence, possibly a mechanical

incompatibility.   The fact that the 1983 ORS did not exist in

1977, although an intuitively attractive argument, does not mean

that it was incapable of being placed on the truck in 1977 if it

did in fact exist.

           Therefore, we find that the user letters, concerns, and

objections to seat belts are inadmissible; as is the engineers'

lack of knowledge whether seat belts would indeed be safer.       They

are in response to desirability, that is, whether it was

advantageous to put ORSs on forklifts.    A viable argument would

be that the 1983 ORS is not safer, or would not have helped in

this situation, although we realize the inconsistency such a

position would have in light of the videotapes depicting Clark's

ardent support for the 1983 ORS.   As we said in Habecker II, the

decision is made with all available knowledge at the time of the

trial.   That is simply the nature of strict liability in
Pennsylvania.   As stated above, Pennsylvania's public policy is

to encourage manufacturers to make their products as safe as

possible, as soon as possible.    It is the jury's prerogative to

hold a manufacturer responsible for not more aggressively

researching and implementing safety devices.

          All this must be integrated with what we said in Huddle

regarding crashworthiness, that is, that a plaintiff must show

that an alternative, safer design practicable under the

circumstances existed.    In Pennsylvania, "practicable under the

circumstances" is an element militating toward feasibility.

Practicable means possible to practice or perform, capable of

being put into practice, done, or accomplished, feasible.

Websters' Third New International Dictionary of the English

Language Unabridged.     Therefore, like feasibility, that element

bars the admission of the evidence Clark would like to present

regarding the 1983 ORS's non-existence.15

          On remand, the district court must conduct a new trial

based exclusively on the principles of Pennsylvania

crashworthiness law we have described.    Thus, Habecker may admit

any evidence that demonstrates a safer design, including the

Clark videos and anything else depicting the technology that was

feasible in 1977.   The defendants may not counter with evidence

that the 1983 ORS was not in existence at the time of

manufacture, nor shall it be permitted to offer any evidence

15
 .        Habecker raises two other issues that, because of our
result here, have become moot: (1) jury instructions; and (2)
misconduct in questioning.
regarding the knowledge of desirability, including the knowledge

of any corporations, societies, or committees.16   They may offer

evidence which impacts upon the safety of the ORS suggested by

Habecker, and/or its feasibility in 1977.



                               IV.

          Habecker raises a number of issues that were

categorically a matter for the district court's discretion.     We

emphasize that we review these issues under an abuse of

discretion standard, and we will not substitute our judgment for

that of the district court unless there has been an abuse of

discretion.   Stich v. United States, 

, 117 (3d Cir.

1984).



                                A.

          Habecker argues that it was an abuse of discretion for

the district court to refuse to allow the plaintiff to raise on

retrial the issue whether the forklift was defective due to the

lack of post-sale warnings.   Habecker was under the mistaken

belief at the first trial that the district court's elimination

of the retrofit issue also precluded the issue of failure to give

a post-sale warning of defectiveness.   In Habecker I we held that
Habecker's assumption was erroneous and that the district court

did not rule on the issue of post-sale warnings regarding

16
 .        While accepting the testimony for qualifying expert
witnesses, the district court must be careful to scrutinize for
this type of evidence.
defectiveness.   

the second trial the district court

took a narrow view of its discretion and only permitted one issue

to be tried -- whether the forklift was defective when it left

the manufacturer because it lacked a seat belt or an operator

restraint system.    Habecker II at 217.

          After the second trial had taken place, the

Pennsylvania Superior Court issued an opinion recognizing a post-

sale duty to warn in Pennsylvania.   Walton v. Avco Corp., 

(Pa. Super. 1989); allocatur granted, 

,

1249 (Pa. 1989).    Habecker moved for permission to raise the

post-sale-duty-to- warn issue at the third trial.    The district

court denied the motion for a number of reasons:    (1) the Walton

case was in conflict with other Superior Court cases; (2)    the

district court distinguished the facts of this case from the

facts of Walton; (3) the Walton case was the only case in

Pennsylvania recognizing such a duty; and (4) the opinion itself

warned that the duty was only to apply to "unique and costly

products" and not "household goods."    The district court

concluded that forklifts, unlike the helicopters in Walton,

militate toward the common product side of the spectrum.

          Prior to the start of the third trial, the Pennsylvania

Supreme Court issued its opinion in Walton, affirming the
Superior Court's decision on the post-sale duty to warn.     Walton

v. Avco Corp., 

(Pa. 1992).    Habecker then filed a

motion for reconsideration with the district court; however, the

district court remained faithful to its initial analysis of the

case.   The court held:
          As an initial matter, the court wishes to
          underline the procedural footing of this
          motion. The court is not in a position where
          it is deciding a motion to dismiss prior to
          trial; instead, the court is merely weighing
          whether or not, in its discretion, it
          believes that Plaintiffs should, going into a
          retrial, be permitted to pursue a cause of
          action which had been neither pled nor
          pursued at the prior trial.


538A.

          The court noted that the Pennsylvania Supreme Court's

decision in Walton rendered invalid two of its four

justifications -- numbers 1 and 3 -- for denying Habecker's

motion to proceed with a post-sale duty to warn claim.    The court

also noted that factors 2 and 4 of its earlier opinion remained

firm and weighed against permitting Habecker to raise this claim.

Accordingly, the district court exercised its discretion and

denied Habecker's motion for reconsideration, thus excluding a

post-sale duty to warn claim as set forth in Walton v. Avco.

          We have consistently recognized that the assertion of

new issues on retrial is typically within the sound discretion of

the district court.   As presider over the trial, the district

court is in the best position to control all aspects of trial,

including further motions, discovery and court time.     We cannot

say that the district court did not exercise sound discretion in

denying Habecker's motion.

          As alternative support for this result, Clark and

Forklifts submit that Habecker did not raise this issue in the

first amended complaint and that it was not until the pretrial

memorandum that it was raised.   There are two types of warnings
at issue here:     (1) a warning to operators not to jump during a

lateral turnover; and (2) the post-sale duty to warn of a

defective product.     A review of the pleadings prior to the first

trial demonstrates that Habecker did raise an issue regarding

warnings:    "Lack of adequate warnings and/or instructions."     53A.

Federal Rule of Civil Procedure 8 only requires notice pleading;

therefore, Habecker did not need to specify what type of warnings

were lacking.     We note, however, that the district court

subsequently granted motions for summary judgment for Clark and

Forklifts "on the issue of warnings."     Order of October 14, 1988

-- 122A.    Therefore it appears to us that if Habecker was

intending to take advantage of notice pleading by not expressing

the type of warning being raised, then the district court's order

dismissing any issue regarding warnings would encompass whatever

was intended.17

            We also notice that the district court stated in its

memorandum opinion of March 31, 1992 that Habecker had opted not

to pursue a cause of action for post-sale duty to warn at the

first trial because the law was unsettled with regard to whether

such a failure to give post-sale warnings would give rise to a

strict liability cause of action in Pennsylvania.     Memorandum of

March 31, 1992, 412A.     Further, we are impressed by the

discussion in chambers prior to the second trial.     725A-27A.

Counsel for Clark explained to the court that the only issue

17
 .        We note that in Habecker I we held that the district
court did not address the post-sale duty to warn. It appears
that this is because Habecker did not raise it.
regarding the duty to warn raised at the first trial was the duty

to warn not to jump from the forklift.    Notably, argument before

the magistrate judge included only that pertaining to the duty to

warn not to jump during a lateral turnover.    There was no other

warning issue pursued at trial, no evidence admitted, no argument

to the jury and no points for charge requested on post-sale duty

to warn.

             Therefore, we are led to the inevitable conclusion that

the district court acted well within its discretion in refusing

to allow Habecker to pursue the post-sale-duty-to-warn issue.

Nonetheless, in accord with Habecker II, we will again refrain

from expressing a view on whether the district court should

permit a new theory of liability to be pursued on retrial.    The

matter will be left to the sound discretion of the district

court.     

18
 .        Habecker also argues that the district court abused its
discretion in restricting them to the evidence, witnesses, and
testimony from the first trial. We held in Habecker II that such
rulings were within the district court's discretion and the
district court has issued a sound opinion on this issue. Our
review does not reveal an abuse of discretion.

          Similarly, Habecker argues that the district court
abused its discretion in denying the request to compel answers to
interrogatories from 1987. The district court addressed this
issue twice, the second time in a well reasoned opinion. We see
no abuse of discretion.

          Finally, Habecker argues that the district court abused
its discretion in restricting the scope of cross-examination of
two defense experts. Specifically, Habecker wanted to question
the experts on matters the experts had noted in their files but
which they did not rely on for their opinion. We find no abuse
of discretion here.
                                B.

           Habecker argues that the district court abused its

discretion in refusing to allow the issue of whether the forklift

was defective when it was leased in 1983 and 1984.   Strict

liability in Pennsylvania is extended to all suppliers of a

product that is "consumed" by the public.   Francioni v. Gibsonia

Truck Corp., 

(Pa. 1977).   Forklifts, which leased

the forklift to the government, could possibly be liable to

Habecker under such a theory.   At the first trial Habecker chose

not to pursue this issue "for tactical reasons."   Memorandum

Opinion of March 31, 1992 -- 410A.   Prior to the third trial,

Habecker filed a motion asking the district court to reinstate

this claim.   The district court denied the motion, relying

heavily on the argument by the defendants that to permit Habecker

to pursue the lease claims now would work an extreme prejudice on

Forklifts due to its reliance on Habecker's actions and

representations prior to the first trial.

           Prior to the first trial Habecker dismissed all

negligence claims.   Because Habecker was not pursuing the

defectiveness of the forklift in 1983 and 1984 and because the

negligence claims against Forklifts had been dropped, Forklifts

had no need to maintain its third party action against the United

States.   As a result, Forklifts dropped the United States from

the lawsuit.19


19
 .        Forklifts had an indemnity agreement contained in the
written lease for the forklift with the United States New
Cumberland Army Depot. The United States agreed to "save and
          Habecker argues that Forklifts' reasons for dismissing

its third party complaint against the government had nothing to

do with Habecker's decision not to pursue the negligence claims

against Forklifts.   The district court, which was in the best

position to monitor what had transpired, disagreed.   The record

does not indicate why Habecker chose not to pursue the

defectiveness of the forklift at the time of its lease; however,

it is clear that Habecker made that choice.   Therefore, we find

that the district court did not abuse its discretion in denying

Habecker's motion to pursue the defectiveness of the forklift

during the 1983 and 1984 leases.



                                C.

           Habecker argues that the district court abused its

discretion by refusing to allow the testimony and photographs of

David Wile, the New Cumberland Army Depot's Safety Director.

After the accident Wile conducted an investigation and attempted

to simulate the accident.   Wile was never listed in a discovery

response or pretrial memorandum as an expert witness, and as a

result, the district court refused to recognize Wile as an

expert.   The district court was certainly entitled to enforce its

pretrial order, requiring the listing of witnesses in compliance

with discovery requests by limiting Habecker to the experts

identified in the witness list and in responses to

(..continued)
hold harmless Forklifts, Inc. from any and all claims or suits
. . . ."
interrogatories requesting the identity of experts and the

substance of their testimony.   Franklin Music Company v. ABC, 

, 539-40 (3d Cir. 1979).     Such an order will not be

disturbed absent a clear abuse of discretion.    

second basis for its ruling, the district court

held that Wile's simulation was not reliable, and that certain

factors were missing which would cause problems for the other

experts.   The record demonstrates that Wile did not have an

engineering degree and had never taken a course in structural

engineering or biomechanical engineering.    Nor has he had any

training in dynamics, physics or kinematics.    In fact, Wile

testified that he had never heard of the word "kinematics."      His

experience in mathematics, physics and dynamics arises from a

layman's point of view.   He testified that he was not a trained

mechanic but did have mechanical abilities.20

           In Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.

Ct. 2786 (1993), the Supreme Court has recently explained that

the district court must ensure that any and all scientific

testimony or evidence is reliable.    Further, Federal Rule of

Evidence 702 requires that the evidence or testimony assist the
20
 .        Wile has a degree from Penn State in social science.
He worked for State Farm Insurance Company for four years as an
accident investigator and damage appraiser. While with State
Farm he received training in accident occurrence and recreation,
and how to record and document evidence. During his employment
with the United States government, Wile took courses involving
occupational safety and health, industrial safety, industrial
hygiene and accident investigation. Wile cautioned that his
training did not involve engineering or physics and that the
government would hire a specialist in that area if that expertise
was needed.
trier of fact in understanding the evidence or a fact in issue.

This question, the Supreme Court held, goes to relevance.21     

(citing United States v. Downing, 

, 1242 (3d

Cir. 1985) (approving of Judge Becker's description of "fit")).

The test entails the district court's preliminary assessment of

whether the reasoning or methodology underlying the testimony is

scientifically valid and whether it can be applied to the facts

in issue.   

            To that end we note that during the simulation the ramp

was pulled away from the trailer instead of moving on its own.

There was no operator on the forklift nor was there cargo on the

fork.   The height of the fork was disregarded and the rearward

movement of the forklift was not replicated.    Although Wile

recognized the velocity of the forklift as an important effect,

he made no attempt to duplicate it.    The district court held that

the attempt at the accident simulation was unreliable.    Further,

although not stated by the district court, it appears that the

evidence from Wile's simulation does not "fit" the facts of this

case and would not assist the trier of fact in determining how

the accident occurred.

            Therefore, in light of the test set forth in Daubert,

we hold that the district court did not abuse its discretion in


21
 .        We had held in Habecker I that the proffered knowledge,
skill, experience, training or education possessed by an expert
goes to the weight of the testimony not its admissibility.
However, recently, the United States Supreme Court held that the
test set forth in Frye v. United States, 

(D.C. Cir.
1923), has been displaced by the Federal Rules of Evidence.
refusing to allow Habecker to admit Wile as an expert or to

permit him to testify about his report.



                                  D.

             Habecker complains that the trial court abused its

discretion in failing to strike the testimony of Dr. Cline Turner

Young, which was based on facts contrary to the facts stipulated

by the parties.    Specifically, Habecker argues that the parties

agreed that the forklift fell only one foot rather than four feet

as Dr. Young opined.    However, our review of the stipulations

read to the jury reveals that no distance was specified.     In

fact, our review of Dr. Young's testimony reveals that he was

calculating the change in forces if the forklift dropped only one

foot, where the chance of a brain injury fatality would be 90%,

as opposed to a four foot drop, where the chance of a brain

injury fatality would be "99 plus, plus, plus percent."     It

appears that Dr. Young believed that Mr. Habecker would have died

as a result of the accident whether the forklift fell one foot or

four feet.

             Contrary to Habecker's assertion, the record reveals

that Dr. Young's testimony was confined to hypotheses consistent

with the evidence before the jury.     Dr. Young carefully explained

every step of his analysis and cited the sources of each piece of

his data.    Further, it does not appear that Dr. Young's testimony

contradicted the stipulation but merely supplemented it.     The

stipulation gave only a general account of what transpired and

did not completely explain the physical evidence; Dr. Young's
testimony provides in more detail his opinion as to how the

accident occurred.   Therefore, we hold that the district court

did not abuse its discretion in denying Habecker's motion to

strike Dr. Young's testimony.



                                V.

          Thus, for the foregoing reasons we will vacate the

district court's judgment on the verdict and remand for a new

trial.