J-A33020-15

                                 2016 Pa. Super. 203



MARK WEBB, AS ADMINISTRATOR FOR                      IN THE SUPERIOR COURT OF
THE ESTATE OF SABINO WEBB,                                 PENNSYLVANIA
DECEASED

                            Appellant

                       v.

VOLVO CARS OF NORTH AMERICA, LLC,
VOLVO CARS CORPORATION, GRACO
CHILDREN'S PRODUCTS, INC. (D/B/T/A
NEWELL RUBBERMAID, INC.), WILLIAM
JULIAN, AND ANA (WEBB) SOARES

                            Appellees                   No. 1367 EDA 2014


               Appeal from the Judgment Entered March 26, 2014
              In the Court of Common Pleas of Philadelphia County
                         Civil Division at No: 110500208


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

OPINION BY STABILE, J.:                          FILED SEPTEMBER 09, 2016

        Appellant, Mark Webb, as administrator for the estate of Sabino Webb,

appeals from the March 26, 2014 judgment in favor of Appellees Volvo Cars

of North America, LLC and Volvo Cars Corporation (collectively, “Volvo”), and

Graco Children’s Products, Inc. (“Graco,” and collectively with Volvo,

“Appellees”). We vacate and remand.

        The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A33020-15


             [Appellant] brought this action before this Court on various
     theories of liability including both negligence and strict product
     liability in an action that would best be described as a
     crashworthiness case. The action arose from a fatal automobile
     collision that occurred on May 4, 2009 between a 1997 Volvo
     Sedan and a Chrysler PT Cruiser at the intersection of Tacony
     Street and Fraley Street. The Additional Defendant, Ana (Webb)
     Soares, was traveling northbound on Tacony Street operating a
     1997 Volvo 850 Sedan when she unfortunately attempted an
     unsafe left-hand turn across traffic onto Fraley Street,
     immediately into the path of an oncoming Chrysler PT Cruiser
     operated by Defendant William Julian. Her Volvo 850 was struck
     on the rear passenger side door by the Chrysler PT Cruiser. At
     the time of the accident, two-month-old Sabino Webb was
     strapped in a SnugRide car seat manufactured by [Graco]. The
     car seat had been placed in the passenger side rear seat of the
     1997 Volvo 850 Sedan right at what became the point of impact
     beside the rear passenger side door.

           [Appellant], Administrator of the Estate of his son, brought
     this action seeking monetary damages for the death of Sabino
     Webb on behalf of himself and the estate. Ana (Webb) Soares,
     the mother of Sabino Webb, was joined to the action as an
     additional defendant (at the time of the accident, Mrs. Webb was
     not yet married to [Appellant] and was known by her maiden
     name, “Ana Soares”). [Appellant] sued, among other named
     parties, [Volvo] and [Graco]. In the case against Volvo, he
     alleged that the 1997 four-door Volvo 850 Sedan was defective
     because [. . .] the Volvo 850 lacked rear door bars to prevent
     side-impact intrusion during side-impact collision. The primary
     allegation against Graco was that the SnugRide car seat should
     have been designed or manufactured with additional padding or
     Styrofoam in the headrest to absorb impact during collision.

            This Court directed a verdict in favor of Defendant William
     Julian at the conclusion of all defense evidence. The Jury
     thereafter returned a verdict in favor of Volvo and Graco.
     Finally, the Jury found in favor of [Appellant] and against
     Additional Defendant Ana (Soares) Webb.

Trial Court Opinion, 11/10/2014, at 1-2.




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      A jury trial commenced on November 4, 2013 and concluded on

November 15, 2013.      At the close of evidence, the trial court directed a

verdict in favor of defendant William Julian and entered nonsuit on

Appellant’s negligence and deceptive trade practices causes of action against

Appellees. Appellant has not appealed those decisions. On November 15,

2013, the jury entered a defense verdict on Appellant’s strict products

liability causes of action against Appellees. Appellant filed post-trial motions

on November 25, 2013.      The trial court heard argument on the post-trial

motions on March 20, 2014, and entered an order denying relief on March

24, 2014. The verdict was reduced to judgment on March 26, 2014. This

timely appeal followed. Appellant raises seven issues for our review:

            1. Whether it was reversible error for the Court to instruct
               the jury that federal standards were relevant after the
               Trial Court dismissed all negligence claims from the
               case and only strict product liability claims remained in
               front of the jury.

            2. Whether, per the [Passarello v. Grumbine, 87 A.3d
285 (Pa. 2014)] decision of the Supreme Court,
               Appellees exploited the incorrect federal standard jury
               instruction during closing arguments magnifying the
               Court’s initial error and requiring a new trial.

            3. Whether Appellant’s expert Dr. David Renfroe’s rebuttal
               FMVSS 214 testimony and testing was improperly
               precluded by the Trial Court because the Court
               mistakenly assumed only the U.S. Government could
               perform FMVSS testing.

            4. Whether it was error for the Court to preclude Appellant
               from using Volvo’s own highly relevant advertising
               material to impeach the credibility of Volvo’s corporate
               designee.


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              5. Whether the Court improperly precluded Appellant from
                 calling Volvo’s corporate designees as if on direct,
                 thereby arbitrarily dictating to Appellant what witnesses
                 he could call in his case in chief.

              6. Whether it was reversible error for the Court to allow
                 unqualified defense experts to speculate that the car
                 accident in question was not survivable for the
                 deceased.

              7. Whether the Court improperly kept defendant Ana
                 Webb in the case after she had no reason to be in the
                 case.

Appellant’s Brief at 10.

       Appellant’s first assertion of error challenges the propriety of one of

the trial court’s jury instructions.1          As noted, Appellant proceeded against
____________________________________________


1
    The following strictures govern our review:

              Our standard of review regarding jury instructions is
       limited to determining whether the trial court committed a clear
       abuse of discretion or error of law which controlled the outcome
       of the case. Error in a charge occurs when the charge as a
       whole is inadequate or not clear or has a tendency to mislead or
       confuse rather than clarify a material issue. Conversely, a jury
       instruction will be upheld if it accurately reflects the law and is
       sufficient to guide the jury in its deliberations.

            The proper test is not whether certain portions or isolated
       excerpts taken out of context appear erroneous. We look to the
       charge in its entirety, against the background of the evidence in
       the particular case, to determine whether or not error was
       committed and whether that error was prejudicial to the
       complaining party.


            In other words, there is no right to have any particular
       form of instruction given; it is enough that the charge clearly
       and accurately explains the relevant law.
(Footnote Continued Next Page)


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Appellees on negligence and strict products liability causes of action.           The

record therefore contains extensive evidence relevant to all of Appellant’s

causes of action, including evidence of the involved Volvo 850’s (the

“Involved Automobile”) and the               Graco   Car   Seat’s (the   “Car   Seat”)

compliance with Federal Motor Vehicle Safety Standards (“FMVSS”).2

Appellant argues the FMVSS evidence was relevant only to his negligence

causes of action, and that the trial court should have instructed the jury to

disregard that evidence given its entry of nonsuit on all but the strict

products liability causes of action.         Appellant cites Gaudio v. Ford Motor

Co., 976 A.2d 524, 547 (Pa. Super. 2009), appeal denied, 989 A.2d 817 (Pa.

2010), and Lewis v. Coffing Hoist Div., Duff Norton Co., Inc., 528 A.2d
590, 593-94 (Pa. 1987), for the proposition that evidence of a product’s

compliance with government standards is not relevant to a strict products

liability claim.

      Before we turn to the merits of this issue, we must address Appellees’

argument that Appellant failed to preserve it. To preserve a challenge to a

jury instruction, a party must lodge a timely objection. We have held that a

                       _______________________
(Footnote Continued)

Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1052 (Pa. Super.
2015).
2
   Appellant filed a pretrial motion in limine to exclude all evidence of the
Appellees’ products’ compliance with government regulations. The trial court
denied that motion, concluding such evidence was relevant to the negligence
claims.



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trial court’s ruling against a jury charge will preserve the issue for review.

Faherty v. Gracias, 874 A.2d 1239, 1249 (Pa. Super. 2005). If the trial

court rules against a proposed jury charge, the party need not take

exception to the charge under Pa.R.C.P. No. 227(b). Id.

      Prior to the charging conference, Appellant submitted a proposed

instruction:

            You have heard evidence that Volvo and Graco’s products
      were compliant with testing required by the Federal Motor
      Vehicle Safety Standards. The purpose of the Federal Motor
      Vehicle Safety Standards is to establish minimum performance
      standards for automotive safety; they do not establish the
      standard of conduct required under the common law. You may
      not find for Volvo or Graco simply because their products
      passed Federal Motor Vehicle Safety Standards.

Appellant’s Second Amended Proposed Jury Instructions, 11/11/2013, at 5

(emphasis added; footnotes omitted).       The record indicates that the trial

court entered nonsuit on Appellant’s negligence claims after Appellant

submitted this charge, but prior to the charging conference.

      The parties debated Appellant’s proposed instruction at the November

14, 2013 charging conference.       The debate was not a model of clarity.

Appellant confirmed his belief that the final sentence of the proposed charge

was “standard Pennsylvania law.” N.T. Trial, 11/14/2013, at 152. Appellant

did so despite the trial court’s entry of nonsuit on the negligence claims prior

to the charging conference.       Appellees quote Appellant’s statement in

support of their waiver argument.




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      Later, however, Appellant clearly argued that government standards

were not relevant in a strict products liability claim:

            [Graco’s Counsel]: Your Honor, though, I think the law is
      that they can consider it in terms of whether or not the product
      is defective.

              THE COURT:     Of course, but that’s what the instruction
      says.

            [Graco’s Counsel]: Well, it doesn’t say that. It just says
      that there’s evidence of compliance, the purpose is to establish a
      minimum performance. There’s nothing in here about, if the
      performance is met that’s evidence of lack of defect, but not
      presumptive evidence.

              THE COURT: Why don’t we include that in then?

            [Appellant’s Counsel]: Wait, Your Honor, we can’t because
      under Gaudio federal standards should be completely out with
      regard to under strict liability.

              THE COURT: That’s not what Gaudio says.

            [Appellant’s Counsel]: I believe it does, Your Honor.        It
      precluded reference entirely to federal standards.

            THE COURT: No, I have it right here. It doesn’t say it
      can’t be mentioned, it says you can’t use it to prove it. As I
      understand, it’s simple evidence to consider.

           [Graco’s Counsel]:      Right, it’s evidence to consider if it’s
      non-defective.

N.T. Trial, 11/14/2013, at 152-53.

      Thus, it appears Appellees argued for a phrasing of the jury instruction

more favorable to their defense.      The trial court concluded by stating its

understanding of the law and offering a compromise:

             THE COURT: And that is, frankly, if it’s raised by the
      plaintiff, the defendant in their case in chief can’t introduce it,


                                      -7-
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     but it can be used as evidence if it’s raised by the plaintiff and it
     was raised by the plaintiff.

          So here’s what I’d like – can we come up with some
     language that you all will agree with for this instruction
     compliance with governmental standards because everyone
     agrees that just because something meets the minimum
     standard doesn’t mean that you still can’t find for the plaintiff?

           [Graco’s Counsel]: I would suggest something to the
     effect of, You may consider evidence of compliance with the
     standard in your determination of whether or not the products
     are defective. However, you may not find for Volvo or Graco
     simply because their products passed the standard.

           THE COURT: I don’t think anyone disagrees with that.

           [Appellant’s Counsel]: Based on discussions, that’s fine.

           THE COURT: Resubmit.

Id. at 153-54.   Appellees rely on the trial court’s apparent belief that it

reached a compromise, and Appellant’s statement, “that’s fine,” to support

their waiver argument.

     The following day, immediately prior to the jury charge, the following

exchange occurred regarding Appellant’s revised proposed instruction:

           [Appellant’s Counsel]:   And then our last one is the
     Government compliance instruction.        We talked about this
     yesterday, I think Your Honor pulled out half of one of our
     sentences, and I don’t know job [sic] if we reached it.

          THE COURT: I don’t have it. Unfortunately, I had so much
     paper here.

           [Appellant’s Counsel]: Second paragraph on there, and I
     think the issue when it was finally resolved is, Graco, Volvo
     produced language that it’s relevant, I think to the design, but I
     am not sure what their language was.

         THE COURT: Yes, I think you indicated it should not
     come in, at all.

                                     -8-
J-A33020-15


              [Appellant’s Counsel]: Yes, Your Honor ruled on that.

              THE COURT: Right.

                                      [. . .]

            THE COURT: The thing is, if we don’t have the negligence
     charge we could have avoided the Federal standards altogether,
     right?

              [Appellant’s Counsel]: Yes, Your Honor.

           THE COURT:        And the case would have been three days
     shorter.

              [Appellant’s Counsel]: Likely.

N.T., 11/15/2013, at 37-38 (emphasis added).

     The trial court charged the jury as follows:

           Jurors, you have heard evidence that Volvo and Graco
     products were compliant with testing required by the Federal
     Motor Vehicle Safety Standard. The purpose of the Federal
     Motor Vehicle Safety Standard is to establish minimal
     performance standards for automotive safety. You may not find
     for Volvo or Graco simply because their products passed several
     motor vehicle safety standards.

Id. at 182.

     In light of all of the foregoing, we conclude Appellant sufficiently

preserved his objection in accord with Faherty. During the November 14,

2013 charging conference, which was Appellant’s first opportunity to address

the jury charge after the nonsuit on the negligence claims, Appellant argued

the FMVSS evidence was no longer relevant. The record of the November

15, 2013 conference confirms that the trial court understood Appellant’s

objection to FMVSS evidence, but chose to permit the jury to consider it.



                                      -9-
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Appellant’s counsel’s comments at the November 15, 2013 conference

confirm that Appellant submitted an instruction he believed was in accord

with the trial court’s ruling of one day earlier. We conclude that Appellant

sufficiently preserved this issue for appellate review.           We now turn to the

merits.

       Given the prevailing precedent at the time of trial, the trial court

plainly erred in permitting the jury to consider the FMVSS evidence in

connection with Appellant’s strict product liability claims.             Evidence of a

product’s    compliance      with    government       standards    is   irrelevant   and

inadmissible in a strict products liability action under section 402A of the

Restatement (Second) of Torts.3                Gaudio, 976 A.2d at 543.        For that


____________________________________________


3
    Section 402A provides:

       (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 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

(Footnote Continued Next Page)


                                          - 10 -
J-A33020-15


proposition, Gaudio (like the instant matter, a crashworthiness case) relied

on our Supreme Court’s opinion in Lewis.            In Lewis, the Supreme Court

explained, “[N]egligence concepts have no place in a case based on strict

liability.” Lewis, 528 A.2d at 593. The Lewis court further reasoned that

evidence of industry standards in a defective design case “go to the

reasonableness of the [manufacturer’s] conduct in making its design choice.”

Id. at 594.     “[S]uch evidence would have created a strong likelihood of

diverting the jury’s attention from the [product] to the reasonableness of the

[manufacturer’s] conduct in choosing its design.” Id.

      Lewis, in turn, relied on Azzarello v. Black Bros. Co., 391 A.2d
1020 (Pa. 1978), overruled, Tincher v. Omega Flex, Inc., 104 A.3d 328

(Pa. 2014). The Lewis Court summarized Azzarello as follows:

            Besides holding that a product is defective when it leaves
      the suppliers’ control lacking any element necessary to make it
      safe for its intended use, we also concluded, if not expressly,
      then certainly by clear implication, that negligence concepts
      have no place in a case based on strict liability.

Lewis, 528 A.2d at 593.           Lewis also cited with approval to Lenhardt v.

Ford Motor Co., 683 P.2d 1097 (Wash. 1984): “The Lenhardt Court also

observed that if a manufacturer’s product has design attributes which make

                       _______________________
(Footnote Continued)

            (b) the user or consumer has not bought the product from
      or entered into any contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965).




                                           - 11 -
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it unsafe for its intended use, there is no relevance in the fact that such a

design is widespread in the industry.”               Id. at 594.   Absent further

development in this area of law, a brief consideration of Gaudio and Lewis

would be the end of the matter. The FMVSS evidence was inadmissible in

strict liability claims under Gaudio and Lewis, and strict liability claims were

all that remained when the trial court submitted the case to the jury.

       We must now consider whether our Supreme Court’s recent opinion in

Tincher, specifically its overruling of Azzarello, affects the instant case.

Appellees argue that Tincher, by implication, overruled the prohibition of

industry or government standards evidence in a strict liability design defect

case. Appellant and Amicus4 argue that Gaudio and Lewis remain good law

after Tincher. In Tincher, the plaintiffs sued the defendant manufacturer

in negligence and strict liability alleging, among other things, defectively

designed corrugated steel tubing.              Tincher, 104 A.3d at 335-36.   The

plaintiffs alleged the steel tubing, which delivered natural gas to a gas

fireplace in their home, melted after a lighting strike and ignited the natural

gas inside. Id. The resulting fire caused significant damage to the plaintiff’s

home and personal property. Id. Prior to trial, the defendant filed a motion

in limine asking the trial court to apply Sections 1 and 2 of the Restatement


____________________________________________


4
  This Court granted leave to the Pennsylvania Association for Justice to file
an Amicus Curiae brief.



                                          - 12 -
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(Third) of Torts5 to plaintiffs’ strict liability claim. Id. at 336. The defendant

argued, in accord with the Third Restatement, that plaintiff had the burden

to prove an alternate, safer design. Id. at 341. The defendant argued that

the Third Restatement makes foreseeability of harm relevant to a strict
____________________________________________


5
    Section One provides:

              One engaged in the business of selling or otherwise
       distributing products who sells or distributes a defective product
       is subject to liability for harm to persons or property caused by
       the defect.

Restatement (Third) of Torts: Prod. Liab. § 1 (1998).

       Section Two provides:

A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of
inadequate instructions or warnings. A product:

            (a) contains a manufacturing defect when the product
       departs from its intended design even though all possible care
       was exercised in the preparation and marketing of the product;

              (b) is defective in design when the foreseeable risks of
       harm posed by the product could have been reduced or avoided
       by the adoption of a reasonable alternative design by the seller
       or other distributor, or a predecessor in the commercial chain of
       distribution, and the omission of the alternative design renders
       the product not reasonably safe;

              (c) is defective because of inadequate instructions or
       warnings when the foreseeable risks of harm posed by the
       product could have been reduced or avoided by the provision of
       reasonable instructions or warnings by the seller or other
       distributor, or a predecessor in the commercial chain of
       distribution, and the omission of the instructions or warnings
       renders the product not reasonably safe.

Restatement (Third) of Torts: Prod. Liab. § 2 (1998).



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products liability claim.      Id. at 342-43.          In other words, the defendant

believed the reasonableness of its conduct must inform the analysis of the

strict products liability claim against it. Id. at 344. Under Azzarello, the

trial court must make a threshold determination of whether a product is in

an unreasonably dangerous defective condition.                  Id. at 367.         The jury

determines the veracity of the factual allegations in the plaintiff’s complaint.

Id.

      The   Tincher        Court    noted    that     Section   402A     of   the    Second

Restatement is not a comfortable fit for design defect claims.                  Id. at 371.

Section 402A relieves plaintiffs of the burden of proving the absence of due

care during the manufacturing process. Id. In design cases, however, “the

character of the product and the conduct of the manufacturer are largely

inseparable.” Id. at 371 (quoting Phillips v. Crickett Lighters, 841 A.2d
1000, 1015 (Pa. 2003) (Saylor, J. concurring)).                    The Tincher Court

overruled Azzarello because it is too difficult, in practice, to separate

negligence from strict liability.      Id. at 376.        Instead, the Supreme Court

devised a test whereby the plaintiff must provide proof, “in the alternative,

either of the ordinary consumer’s expectations or of the risk-utility of a

product.” Id. at 401. The risk-utility standard is derived from negligence

concepts.      Id.    at     403.      Other         states   adopting    the    consumer

expectations/risk-utility standards have shifted the burden of proof to the

defendant in the latter. Id. at 408 (citing Barker v. Lull Eng’g Co., 573


                                            - 14 -
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P.2d 443, 445 (Cal. 1978)). That is, if the plaintiff alleges a strict liability

cause of action based on the risk-utility standard, the defendant bears the

burdens of production and persuasion to prove the product in question is not

defective in design.   Id.   The Supreme Court declined to address whether

the burden-shifting rule would apply in Pennsylvania. Id. at 409.

      The Tincher Court also declined to address the retroactive effect of its

holding. The two questions before the Supreme Court were (1) whether to

adopt the Restatement (Third) of Torts for products liability claims, and (2)

whether the adoption of the Restatement should apply retroactively.

Answering the first question in the negative, the Supreme Court declined to

address the second.     The Supreme Court ruled that the defendant was

entitled to the benefit of the Court’s overruling of Azzarello, since they

presented that argument to the trial court and preserved it on appeal. Id.

at 410.   The Supreme Court did not address whether the defendant was

entitled to judgment notwithstanding the verdict, a new trial, or other relief.

Id.

      To summarize, Azzarello, with its strict prohibition on introducing

negligence concepts into strict products liability claims, is no longer the law

in Pennsylvania. The rule presently at issue—the prohibition of government

or industry standards evidence in a strict products liability case—clearly has

its genesis in the now-defunct Azzarello regime. The Lewis and Gaudio

Courts both relied primarily on Azzarello to support the preclusion of


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government     or   industry   standards   evidence,     because   it   introduces

negligence concepts into a strict liability claim.     According to Appellees, it

follows that the trial court did not err in permitting the jury to consider the

FMVSS evidence in connection with Appellant’s strict liability claims.

Appellant and Amicus note that the Tincher Court did not make its holding

retroactive, and that Tincher cited Lewis and Gaudio but did not overrule

either case.   Thus, Appellant and Amicus argue that Lewis and Gaudio

remain binding.

      We conclude that the overruling of Azzarello does not provide this

panel with a sufficient basis for disregarding the evidentiary rule expressed

in Lewis and Gaudio. While it is clear after Tincher that the firm division

between strict liability and negligence concepts no longer exists, it is not

clear that the prohibition on evidence of government or industry standards

no longer applies. Lewis, in particular, noted that a defective design could

be widespread in an industry.      Lewis, 528 A.2d at 594.          The Tincher

opinion does not undermine that rationale for excluding governmental or

industry standards evidence. Furthermore, Tincher expressed two theories

of strict products liability—consumer expectations and risk-utility.         It is

possible that government/industry standards evidence could be admissible

under both theories, one and not the other, or neither. It is also possible

that the admissibility of such evidence will depend upon the circumstances of

a case.   The Tincher Court noted the possibility of shifting the burden of


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production and persuasion to the defendant under the risk-utility theory.

This burden shift, if it becomes law, may provide defendants a basis to

advocate for the admissibility of government or industry standards evidence

in risk-utility cases.

      These contingencies illustrate that Tincher will affect every stage of

future products liability cases.    Post-Tincher, parties must tailor their

pleadings, discovery, and trial strategy to one or both of the new theories of

liability. We believe the continued vitality of the prohibition on government

and industry standards evidence is a question best addressed in a post-

Tincher case.

      We note that here, unlike in Tincher, Appellees were not advocating

for the overruling of binding precedent. Appellees’ arguments, and the trial

court’s decision, rest on a misunderstanding of those cases, and/or an

erroneous belief that Appellant’s negligence causes of action opened the

door for the admissibility of FMVSS evidence despite the trial court’s entry of

nonsuit on the negligence claims. Appellant, in bringing both negligence and

strict liability claims, did not open the door to FMVSS evidence in the strict

liability claims. The FMVSS evidence came in because it was relevant to the

negligence claims. Perhaps Appellant risked jury confusion in the event all

of his claims survived to be decided by a jury, or perhaps not. Regardless,

that was a strategic choice for Appellant to make. See Tincher, 104 A.3d at

406 (“[T]he plaintiff is the master of the claim in the first instance.”). After


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nonsuiting the negligence claims, the trial court could and should have

instructed the jury to disregard the FMVSS evidence.            We are unable to

conclude, given the complexity of this case and the prominence of the

FMVSS evidence, that the trial court’s error was harmless. The trial court’s

erroneous jury instruction requires a new trial.

      We address Appellant’s remaining assertions of error to the extent

they may be relevant on remand. Appellant’s third assertion of error is that

the trial court improperly excluded expert rebuttal testimony.           Appellant

sought to have his expert, Dr. David Renfroe (“Dr. Renfroe”), testify that he

replicated the FMVSS 214 testing and the Volvo failed it.                Appellant

purportedly offered this evidence as rebuttal evidence, but the trial court

refused to admit it, concluding it was an untimely addition to Dr. Renfroe’s

expert report. Given our conclusion that the FMVSS evidence is not relevant

to Appellant’s remaining strict liability claims, this issue is moot.

      Appellant’s fourth argument is that the trial court erred in refusing to

admit into evidence various Volvo advertisements touting the safety of

several   Volvo   models    other   than   the   Volvo   850.      The   excluded

advertisements reflect that Volvo’s 960 model contained rear door safety

bars, as the Volvo 850 shoud have, according to Appellant.                    The

advertisements touted the door bars as safety enhancements. Admission or

exclusion of evidence rests within the sound discretion of the trial court, and

we will not reverse the court absent and abuse of discretion or error of law.


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McManamon v. Washko, 908 A.2d 1259, 1268 (Pa. Super 2006), appeal

denied, 921 A.2d 497 (Pa. 2007).

      The trial court permitted testimony on the issue, but excluded the

advertisements. Volvo witnesses testified that the bars enhanced the safety

of the Volvo 960 but would have posed dangers in the Volvo 850. Thus, the

trial court permitted Appellant to establish, through examination of Volvo

personnel, Volvo’s belief that the rear door bars on the Volvo 960 enhanced

its safety.   Admission of an advertisement stating the same thing would

have been cumulative. See Pa.R.E. 403 (relevant evidence may be excluded

if it is needlessly cumulative).    We discern no abuse of discretion in

excluding the advertisements from evidence.

      Next, Appellant argues the trial court erred in quashing a subpoena

issued to several Volvo witnesses. Appellant sought permission to call the

subject witnesses and examine them during his case-in-chief. Volvo filed a

motion to quash the subpoena. Our review of the record indicates that the

trial court denied Volvo’s motion as moot during argument of the parties’

motions in limine.    N.T. Motions, 11/4/2013, at 49.       Subsequently, it

appears Appellant agreed to wait until Volvo’s case-in-chief to examine the

witnesses in question.    N.T. Trial, 11/7/2013, at 5-6.      Several of the

witnesses were international and were not scheduled to arrive until the

following week. Id. Under the Rules of Appellate Procedure, the appealing

party bears the burden of informing this Court of the place of preservation of


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an issue presented on appeal. Pa.R.A.P. 2117(c). We are unable to discern

from the record whether Appellant properly preserved this issue. The trial

court deemed Volvo’s motion to quash as moot, and Appellant apparently

agreed that cross examination of Volvo’s witnesses would be satisfactory.

Were we to reach the merits of this issue, we would find it lacking in merit.

As the trial court observed, the evidence Appellant seeks through the

subpoena would have been cumulative of evidence Appellant garnered from

the witnesses Volvo produced at trial.

      Next, Appellant argues the trial court erred in permitting Appellees’

expert witnesses to testify that the victim would not have survived the

accident even with rear door bars in the Volvo 850 or additional head

restraint padding in the Car Seat. We observe:

             Whether a witness has been properly qualified to give
      expert witness testimony is vested in the discretion of the trial
      court. It is well settled in Pennsylvania that the standard for
      qualification of an expert witness is a liberal one.       When
      determining whether a witness is qualified as an expert the court
      is to examine whether the witness has any reasonable
      pretension to specialized knowledge on the subject under
      investigation.

Wexler v. Hecht, 847 A.2d 95, 98-99 (Pa. Super. 2004), affirmed, 928
A.2d 973 (Pa. 2007)

      Volvo presented the expert testimony of Deborah R. Marth, and Graco

presented the expert testimony of Dr. Catherine Corrigan, both of whom are

experts   in   biomechanics.   Appellant     argues   that   their   opinions   on

survivability went beyond the scope of their expert qualifications, because

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they are not medical experts.          We disagree.      Dr. Marth testified that her

education    included,       among   other     things,   a    doctorate   in   biomedical

engineering. N.T. Trial, 11/13/14 (morning session), at 69. She described

biomedical engineering as the “study of the human body in motion, and how

accidents or crashes can occur, and how injuries can be inflicted upon

them.”     Id.    Dr. Marth testified that the addition of a door bar in the

Involved Vehicle would not have reduced or mitigated the victim’s injury.

Id. at 90.

       Dr. Corrigan testified that “[t]he field of biomechanics is the

applications of principles of mechanical engineering to the human body. So I

analyze how forces create movement, and how forces create injury.” N.T.

Trial, 11/14/13 (morning session), at 13. “[T]he primary focus of the area

of biomechanics is understanding from a physics perspective exactly how the

injuries occur.”      Id.6     Ultimately, Dr. Corrigan testified that additional

padding in the Car Seat head restraint would not have reduced the force to

the victim’s head. Id. at 57.

       We discern no merit in Appellant’s argument. Neither witness offered

medical testimony regarding the cause of the victim’s death. Rather, they

offered their opinions on the forces that caused the victim’s injuries—a

subject well within their areas of expertise.                Both experts testified that
____________________________________________


6
   We observe that Appellant did not object to the qualifications of either
witness.



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Appellant’s proposed alternate designs would not have reduced the forces

that caused the victim’s injuries. The trial court did not abuse its discretion

in permitting this testimony. See, e.g., Pa. Trust Co. v. Dorel Juvenile

Grp., Inc., 851 F. Supp. 2d 831, 838-39 (E.D.Pa. 2011) (biomechanical

engineer qualified to testify as to the cause of injuries in a car accident;

expert identifying the cause of an injury need not be a medical doctor).

      Finally, Appellant argues the trial court erred in declining to enter a

directed verdict in favor of additional defendant Ana Webb, thereby leaving

her on the verdict slip. As noted above, Ana Webb was the victim’s mother

and the driver of the Involved Vehicle.        Defendant William Julian and

Appellees filed cross claims against Ana Webb for negligence.        Appellant

argues Ana Webb should have been dismissed from the case after the trial

court directed a verdict in favor of Julian and entered nonsuit on Appellant’s

negligence claims against Appellees. Appellant argues the trial court erred

in submitting a verdict slip to the jury asking whether Ana Webb’s conduct

contributed to the victim’s injuries, because the Appellant’s only remaining

causes of action sounded in strict liability against Appellees.      Appellant

argues this error entitles him to a new trial. Volvo argues the trial court’s

action was proper because Appellees were entitled to contribution from Ana

Webb in the event of a verdict against them.

      The record reveals that Appellant failed to preserve this issue in his

post-trial motion. Appellant referenced the issue in a single sentence in the


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brief in support of his post-trial motion. We have held that omitting an issue

from a post-trial motion but referencing it in a subsequent brief results in

waiver. Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d
923, 932 (Pa. Super. 2013). “Appellant first raised the issue in its brief in

support of the post-trial motion.              Pursuant to Pa.R.C.P. [No.] 227.1,[7]

grounds for post-trial relief must be set forth in a post-trial motion. If not,

those grounds are waived.” Id.

       In summary, we have concluded that Appellant is entitled to a new

trial on his strict liability claims.          We have concluded that Appellant’s

remaining arguments are moot, waived, or lacking in merit. We therefore

vacate the judgment and remand for further proceedings consistent with this

opinion.

       Judgment vacated. Case remanded. Jurisdiction relinquished.

       President Judge Emeritus Ford Elliott joins the opinion.

       Judge Strassburger files a concurring opinion.




____________________________________________


7
  “[P]ost-trial relief shall not be granted unless the grounds therefor [. . .]
are specified in the motion.” Pa.R.C.P. No. 227.1(b)(2).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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