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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
MICHAEL TIMMONDS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant
Vv.
AGCO CORPORATION D/B/A AND OR: ~~ No. 2916 EDA 2019
F/K/A MASSEY FERGUSON, INC.,
M.M. WEAVER & SONS, INC.,
SPORTING VALLEY TURF FARMS,
INC., HUMMER SPORTS SURACES,
LLC., AND HUMMER TURFGRASS
SYSTEMS, INC.
Appeal from the Judgment Dated November 22, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 151103681
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED: APRIL 12, 2021
Michael Timmonds appeals from the judgment,! entered in the Court of
Common Pleas of Philadelphia County, after a jury returned a verdict in favor
“ Retired Senior Judge assigned to the Superior Court.
1 Timmonds filed his notice of appeal on September 25, 2019, following the
trial court’s denial of his post-trial motions. On November 13, 2019, this Court
issued an order, noting that final judgment had not been entered on the trial
court docket as required by Pa.R.A.P. 301, and directing Timmonds to file a
praecipe to enter judgement with the trial court prothonotary. Timmonds
complied with that order on November 22, 2019. Pursuant to Pa.R.A.P.
905(a)(5), we may treat Timmonds’ prematurely-filed notice of appeal as filed
after the entry of judgment. See Pa.R.A.P. 905(a)(5) (“A notice of appeal
filed after the announcement of a determination but before the entry of an
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of Appellees, AGCO Corporation, d/b/a and/or f/k/a Massey Ferguson, Inc.
(“AGCO”), M.M. Weaver & Sons, Inc. (“Weaver”), Sporting Valley Turf Farms,
Inc., Hummer Sports Surfaces, LLC, and Hummer Turfgrass Systems, Inc.
(collectively, “Turf Defendants”). Upon careful review, we affirm.
The matter before the Court stems from injuries Timmonds sustained
in the course of his employment with George E. Ley Co. (“Ley”).2 Specifically,
on March 19, 2015, Timmonds was performing irrigation work at Flying Hills
Golf Course, which required him to use a tractor for the displacement and
loading of dirt. See Amended Complaint, 4/14/16, at 4 1-3. Timmonds
attempted to start the tractor, manufactured by AGCO (model number MF-
451) and owned by Ley. In order to start the tractor, Timmonds positioned
himself in the seat and turned the key in the ignition. See N.T. Jury Trial,
6/6/18, at 9. The tractor failed to start. See id. As a result, Timmonds
dismounted the tractor in order to use a “rigging method” to start the ignition,
which entailed touching a wire to the tractor’s solenoid.2, Amended Complaint,
appealable order shall be treated as filed after such entry and on the day
thereof.”).
2 Ley was originally named as a defendant in this matter, but was ultimately
dismissed by stipulation of the parties. See Stipulation, 4/12/16.
3 “Tractor solenoids connect the starter directly to the battery [when starting
the engine]. Starters require a significant amount of current to operate—
current that is too large to send through a standard ignition switch. Doing so
would burn out the ignition switch within seconds. Solenoids solve this
problem by using a low electric current to activate a high-current switch.”
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supra, at 9 6; N.T. Jury Trial, 6/6/18, at 9. When Timmonds did so, the
tractor “immediately took off and ran over” him. N.T. Jury Trial, 6/6/18, at
10. Asa result, Timmonds suffered injuries to his left foot which required
multiple surgeries and for which he continues to require pain medication. See
id, at 12-14.
Timmonds filed suit in the Court of Common Pleas of Philadelphia
County. Following discovery and the disposition of numerous pretrial motions,
trial commenced on June 4, 2018. At trial, Timmonds pursued claims of
negligence and products liability against AGCO and Weaver, and a negligence
claim against the Turf Defendants.* Relevant to this appeal, Timmonds’ claims
https: //itstillruns.com/how-to-wire-a-tractor-solenoid-13404543.html (last
visited 3/12/21).
It is undisputed that, at the time of its manufacture, the tractor came with a
guard that was bolted over the starter solenoid to prevent “hot-wiring.” This
guard came with a label, warning against removal of the guard and cautioning
against hot-wire starts. At the time of Timmonds’ accident, the guard had
been removed to allow a user to utilize a wire to connect the terminals on the
starter solenoid to “hot-wire” the machine when it would not start using the
key. This method allows the current to flow directly from the battery to the
starter mower and will start the tractor if the key switch is in the “on” position.
It also bypasses the neutral start system, which is a safety system designed
to prevent accidents, such as the one that occurred in this case, by preventing
the tractor from starting while it is in gear. The identity of the party who
removed the solenoid cover was a key issue in this case.
4 While post-trial motions were pending with the trial court, Timmonds reached
a settlement with Weaver and the Turf Defendants. Accordingly, Timmonds’
claims on appeal related solely to AGCO.
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against AGCO were based on AGCO’s failure to incorporate an occupant
presence control (“OPC”)>® on the tractor.
Timmonds presents the following questions for our review:
1. Whether the trial court erred as a matter of law in denying
[Timmonds’] motion for a new trial stemming from the trial court’s
improper dismissal of [his] claim of negligence against defendant
AGCO by means of a directed verdict?
2. Whether the trial court prejudicially erred as a matter of law or
abused its discretion, thereby entitling [Timmonds] to the remedy
of a new trial, in improperly instructing the jury concerning the
elements of a product[s] liability claim?
3. Whether the trial court prejudicially erred as a matter of law or
abused its discretion, thereby entitling [Timmonds] to the remedy
of a new trial, in permitting defendants to argue that the negligent
actions and inactions of [Ley] were responsible for [Timmonds’]
injuries and damages, even though the worker’s compensation
bar precluded [Timmonds] from recovering in tort against [Ley],
and [Ley] was neither a party to this suit at the time of trial nor
shown on the jury verdict slip as a potentially liable party?
4. Whether the trial court prejudicially erred as a matter of law or
abused its discretion, thereby entitling [Timmonds] to the remedy
of a new trial, in barring [Timmonds’] counsel from impeaching
AGCO’'s expert witness with the report of another expert that
AGCO’s expert reviewed and considered in reaching his own
expert opinions?
Brief of Appellant, at 4-5.
Timmonds first claims that the trial court erred in denying his motion
for a new trial based on his assertion that the court improperly granted a
> An OPC “is a design to neutralize a machine . . . whenever an operator is not
present.” N.T. Jury Trial, 6/11/18, at 6. As relevant to this case, an OPC
would have prevented the tractor from starting unless Timmonds had been
sitting in the tractor’s seat, thus preventing the accident from occurring.
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directed verdict in favor of AGCO on Timmonds’ negligence claim. We begin
by noting our standard of review:
In reviewing a trial court’s decision whether or not to grant
judgment in favor of one of the parties, we must consider the
evidence, together with all favorable inferences drawn therefrom,
in the light most favorable to the verdict winner. Our standard[s]
of review when considering the motions for a directed verdict and
judgment notwithstanding the verdict [JNOV] are identical. We
will reverse a trial court’s grant or denial of a [directed verdict or
JNOV] only when we find an abuse of discretion or an error of law
that controlled the outcome of the case. Further, the standard of
review for an appellate court is the same as that for a trial court.
There are two bases upon which a [directed verdict or JNOV]
can be entered; one, the movant is entitled to judgment as
a matter of law and/or two, the evidence is such that no two
reasonable minds could disagree that the outcome should
have been rendered in favor of the movant. With the first,
the court reviews the record and concludes that, even with
all factual inferences decided adverse to the movant, the
law nonetheless requires a verdict in his favor. Whereas
with the second, the court reviews the evidentiary record
and concludes that the evidence was such that a verdict for
the movant was beyond peradventure.
Campisi v. Acme Markets, Inc., 915 A.2d 117, 119 (Pa. Super.
2006) (quotation omitted). See Berg v. Nationwide Mutual
Insurance Co., Inc., 44 A.3d 1164 (Pa. Super. 2012).
Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)
(brackets in original).
Timmonds raised claims against AGCO sounding in both negligence and
strict products liability. “[I]n order to maintain a negligence action, the
plaintiff must show that the defendant had a duty to conform to a certain
standard of conduct; that the defendant breached that duty; that such breach
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caused the injury in question; and actual loss or damage.” Phillips v. Cricket
Lighters, 841 A.2d 1000, 1008 (Pa. 2003).
Of these four elements, the primary one is whether the defendant
owed a duty of care. Althaus v. Cohen, [| 756 A.2d 1166, 1168
([Pa.] 2000). To determine whether the defendant owed a duty
of care, we must weigh the following five factors: “(1) the
relationship between the parties; (2) the social utility of the
[defendant’s] conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences of
imposing a duty upon the [defendant]; and (5) the overall public
interest in the proposed solution.” Id. at 1169. No one of these
five factors is dispositive. Rather, a duty will be found to exist
where the balance of these factors weighs in favor of placing such
a burden on a defendant.
Phillips, 841 A.2d at 1008-09.
Our Supreme Court, in Webb v. Zern, 220 A.2d 853 (Pa. 1966),
formally adopted Section 402A of the Restatement (Second) of Torts as the
law governing strict products liability actions. This section 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
(b) the user or consumer has not bought the product from
or entered into any contractual relation with the seller.
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Restatement (Second) of Torts, § 402A (1965). To prevail on a strict products
liability claim, a plaintiff must prove that the product was defective, the defect
existed when it left the defendant's hands, and the defect caused the harm.
Barton v. Lowe's Home Centers, Inc., 124 A.3d 349, 354-55 (Pa. Super.
2015). The threshold inquiry in all products liability cases is whether there is
a defect. Where, as here, the plaintiff alleges a design defect, he must
demonstrate that the design of the machine results in an unreasonably
dangerous product. Id.
As a preliminary matter, we will begin by addressing AGCO’s claim that,
following our Supreme Court’s decision in Tincher v. Omega Flex, 104 A.3d
328 (Pa. 2014), Timmonds was not entitled to simultaneously proceed with
both a common law negligent design claim and a strict liability claim under
section 402A of the Restatement (Second) of Torts.© In Tincher, our Supreme
Court overruled the long-standing precedent set forth in Azzarello v. Black
Brothers Co., 391 A.2d 1020 (Pa. 1978), in which the Court imposed a strict
segregation between negligence and strict liability concepts by removing from
the purview of the jury the question of whether a product was “unreasonably
dangerous” and placing that determination in the hands of the trial court to
6 The trial court acknowledged AGCO’s Tincher argument, but explicitly stated
in its opinion that “in rendering the at-issue directed verdict, [it] made no
determination that the post-Tincher landscape precluded the
simultaneous submission of a negligent design theory and a 402A
theory|[.|” Trial Court Opinion, 8/27/19, at 15 (emphasis in original). Rather,
the court simply determined that Timmonds “had not met his burden to send
the negligent design theory to the jury.” Id.
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be determined as a question of law. The Court reasoned that “the phrases
‘defective condition’ and ‘unreasonably dangerous’ as used in the Restatement
formulation are terms of art” whose “resolution depends upon social policy,”
and thus “do not fall within the orbit of a factual dispute which is properly
assigned to the jury for resolution.” Azzarello, 391 A.2d at 1026, overruled
by Tincher, supra.
In Tincher, the Supreme Court revisited the scheme established in
Azzarello. The Court noted that the Azzarello holding was “premised .. .
on the assumption that the term ‘unreasonably dangerous’ is misleading to
jurors because it ‘tends to suggest considerations which are usually identified
with the law of negligence.” Tincher, 104 A.3d at 376. Such negligence-
based rhetoric, in the view of the Azzarello Court, “saddle[d] a plaintiff in a
strict liability case with an additional and unwarranted burden of proof in every
case.” Id. at 377. The Tincher Court observed, however, that the facts of
Azzarello, “when viewed with the appropriate judicial modesty, did not
require such a broad pronouncement.” Id. (noting issue of “jury confusion”
in Azzarello “arose in a distinct, fact-bound context of a jury trial in which
claims of strict liability and counter-claims of negligence were asserted against
distinct parties”). The Court concluded that the rule established by Azzarello
was overbroad, impracticable, and based on “unsupported assumptions and
conclusory statements.” Id. at 380. Accordingly, the Court reformulated its
approach to the standard of proof relevant to strict liability actions and
returned to the finder of fact the question of whether a product is in a
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“defective condition unreasonably dangerous.” In doing so, the Court crafted
a new test for proving whether a product is in a defective condition under
section 402A of the Restatement (Second) of Torts:
The plaintiff may prove defective condition by showing either that
(1) the danger is unknowable and unacceptable to the average or
ordinary consumer [(“consumer expectations test”)], or that (2)
a reasonable person would conclude that the probability and
seriousness of harm caused by the product outweigh the burden
or costs of taking precautions [(“risk-utility test”) ].
Id. at 335. The Court further stated:
Whether a product is in a defective condition is a question of fact
ordinarily submitted for determination to the finder of fact; the
question is removed from the jury’s consideration only where it is
clear that reasonable minds could not differ on the issue. Thus,
the trial court is relegated to its traditional role of determining
issues of law, e.g., on dispositive motions, and articulating the law
for the jury, premised upon the governing legal theory, the facts
adduced at trial and relevant advocacy by the parties.
Id.
In support of his claim that he is entitled to a new trial as to his
negligence claim, even though his strict liability claim was rejected by the jury,
Timmonds relies on our Supreme Court’s decision in Phillips, supra. In that
case, the plaintiff brought claims sounding in, inter alia, strict products liability
and negligence. In granting the defendant’s motion for summary judgment,
the trial court held that the plaintiff had failed to establish a strict liability
claim. The court then reasoned that, where a product is found to be not
defective for strict liability purposes, a design defect claim sounding in
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negligence also must fail. Accordingly, the court granted summary judgment
on both claims.
On appeal, this Court held that the trial court had erred in dismissing
the strict liability claim. The Court further reasoned that, since it had found
the trial court’s determination on strict liability to be erroneous, it must
necessarily reverse the entry of summary judgment on the negligent design
claim.
On allowance of appeal, the Supreme Court reversed the holding of this
Court as to the plaintiff’s strict liability claim, concluding that the trial court
had properly granted summary judgment in favor of the defendant. However,
the Court rejected the argument that, if the trial court “properly granted
summary judgment on [plaintiff’s] strict liability claim, then perforce we must
hold that her negligence claim also fails.” Phillips, 841 A.2d at 1008. The
Court stated:
This reasoning is deeply flawed and we decline to adopt it. As we
discussed supra, negligence and strict liability are distinct legal
theories. Strict liability examines the product itself, and sternly
eschews considerations of the reasonableness of the conduct of
the manufacturer. In contrast, a negligence cause of action
revolves around an examination of the conduct of the defendant.
Were we to dispose of a negligence claim merely by an
examination of the product, without inquiring into the
reasonableness of the manufacturer’s conduct in creating and
distributing such a product, we would be divorcing our analysis
from the elements of the tort. Thus, as the elements of the causes
of action are quite distinct, it would be illogical for us to dispose
of [plaintiff’s] negligence claim based solely on our disposition of
her strict liability claim. Instead, we must examine the law of
negligence and determine whether the trial court erroneously
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determined that [plaintiff’s] negligence claim failed as a matter of
law.
Id. (internal citation omitted).
Here, AGCO argues that, because Phillips was decided while Azzarello
was the prevailing law on strict products liability, it is no longer applicable in
a post-Tincher landscape. AGCO asserts that “[e]ssential to the reasoning of
the Phillips Court was the then-existing bright[-]line rule that courts must
maintain a strict divide between negligence and strict liability concepts by
preventing any negligence theories—like that of an unreasonably dangerous
product—from being injected into a 402A design defect case.” Brief of
Appellee, at 16. Because Tincher “overruled Azzarello and with it, the
absolute prohibition on mixing negligence and strict liability concepts,” AGCO
argues, a plaintiff may no longer proceed on strict liability and negligence
claims on the same facts. Id. We disagree.
The elements of proof in strict products liability and negligence causes
of action are separate and distinct. As set forth above, to prevail on a claim
sounding in negligence, a plaintiff must show that the defendant had a duty
to conform to a certain standard of conduct, that the defendant breached that
duty, that such breach caused the injury in question, and actual loss or
damage. Phillips, supra. To prevail on a strict products liability claim, a
plaintiff must prove that the product was defective, the defect existed when it
left the defendant’s hands, and the defect caused the harm. Barton, supra.
In short, negligence focuses on conduct, while strict liability examines the
product itself. Thus, although Tincher eliminated the doctrinal wall between
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strict liability and negligence concepts erected by the Azzarello Court,
nothing in the Court’s decision suggests an intention to consequently eliminate
negligence-based product-design causes of action. Indeed, the Court
acknowledged that “[t]he duty spoken of in strict liability is intended to be
distinct from the duty of care in negligence.” Tincher, 104 A.3d at 383, citing
Restatement (Second) of Torts § 402A(2) (stating seller may be subject to
liability even though it has exercised all possible care in the preparation and
sale of his product); see also Tincher, 104 A.3d at 384 (“In Pennsylvania,
the question of whether those who make or market products have duties in
strict liability (in addition to negligence) has been answered in the
affirmative by the 1966 decision in Webb.”) (emphasis added). Because
Tincher clearly contemplates the continued viability of negligence-based
product-design actions, we reject AGCO’s assertion that “negligent design and
strict liability design defect are the same thing.” Brief of Appellee, at 17.
Having determined that Tincher does not bar Timmonds from
proceeding under theories of both strict liability and negligence, we now turn
to his claim that the trial court erred in granting a directed verdict as to his
claim that AGCO negligently designed the tractor without an OPC.
In issuing its directed verdict in favor of AGCO, the trial court concluded
that Timmonds failed to set forth the requisite elements of a common law
negligence claim against ACGO. Specifically, the court found that the
testimony of Timmonds’ expert witness, Kevin Sevart, was solely “directed
toward establishing [Timmonds’] products liability claim under [s]ection
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402A,” a claim separate and distinct from one asserting common law
negligence. Trial Court Opinion, 8/27/19, at 18. The court found that
Timmonds “failed to set forth how AGCO, an agricultural tractor manufacturer,
failed to conform to a certain standard of conduct,” as required to establish
negligence. Id. at 18-19. In particular, the court emphasized the lack of any
testimony by Sevart as to a relevant standard of care, and noted that Sevart
had, in fact, conceded that AGCO “had not breached any technical,
manufacturing or industry standards.”” Id. at 19.
Timmonds argues that he did, in fact, establish all four elements of his
negligence claim. First, he asserts that he was a foreseeable user of the
tractor and that, under Pennsylvania law, a manufacturer owes a duty to the
intended user of its products. Second, Timmonds alleges that the element of
breach was established by the testimony of his expert witness, Sevart, who
testified that AGCO “should have included on the tractor an [OPC] or similar
safety feature that would have required a driver to be present in the tractor’s
seat before the machine would start.” Brief of Appellant, at 17. Finally,
7? The court stated:
The only person who could set forth duty [as to AGCO] is your
expert. And all I heard your expert talk about was the issues
about the seat. And [he] never used the words [‘|they were
negligent because they didn’t put this on.[’] Not once... did he
ever use that word.
Trial Court Opinion, 8/27/19, at 19, quoting N.T. Jury Trial, 9/18/18, at 33-
34.
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Timmonds argues, “there is no dispute that [he] sustained a serious injury
and resulting damages, thereby satisfying the final two elements of a prima
facie negligence claim.” Id, at 18.
In response, AGCO argues that the trial court properly granted a
directed verdict because AGCO did not owe Timmons—an _ unintended,
untrained, and unqualified user of the tractor—a duty to incorporate an OPC
into its product. AGCO posits that, unlike in strict liability cases under section
402A, in which “a manufacturer owes a duty to all intended and reasonably
foreseeable users to make a reasonably safe product, a manufacturer does
not necessarily owe that same duty in negligence.” Brief of Appellee, at 20.
Rather, the court must consider the five factors set forth in Althaus, supra,
which AGCO argues all militate in its favor. With respect to the first Althaus
factor—the relationship between the parties—AGCO asserts that Timmonds
was neither the purchaser of the tractor, nor a “trained, qualified[,] or
intended user of it.” Brief of Appellee, at 22. As to the second Althaus
factor—social utility—AGCO argues that “[t]here is no question that an
agricultural utility [t]ractor like the MF 451 is a useful product.” Id. In
particular, the fact that tractor was “purposefully manufactured without an
OPC has a particular social utility because it allows farmers to use the tractor
as a Stationary power source [to operate] various implements off the [power
take off] without [requiring a driver] in the seat of the [t]ractor.” Id. at 22-
23. AGCO asserts that the third Althaus factor—nature of the risk and
foreseeability—also weighs in its favor. Specifically, AGCO claims that the
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social utility of the tractor is high, while the foreseeability of harm is low
because “the [t]ractor contained myriad safety features® specifically designed”
to prevent an accident like Timmonds’, and that “[i]t was only when all of
these [safety features] were bypassed or ignored that the accident could
occur.” Id. at 23. With regard to the fourth A/thaus factor—consequences
of imposing a duty upon the defendant—AGCO argues that “allowing this
[t]ractor to be manufactured with an OPC actually would make it more
dangerous.”2 Id. at 24. Finally, as to the fifth A/thaus factor—public
interest—AGCO asserts that “[t]he public has a clear interest in farmers having
access to tractors that allow them to get the job done.” Id, at 25.
Lastly, AGCO posits, even assuming, arguendo, that AGCO owed
Timmons “some general duty of care,” a directed verdict was still appropriate,
as Timmonds “did not adduce evidence sufficient to define what the duty was
8 In particular, AGCO cites the following safety features present on the tractor
at the time of manufacture: (1) a bolted-on metal guard covering the area
Timmonds accessed in order to hotwire the tractor; (2) a warning decal affixed
to the metal guard warning the user to only start the tractor with a key from
the seat and to ensure that the transmission and PTO are in neutral because
“Starting in gear kills”; (3) a manual; (4) a neutral start system that would
“prevent forward motion of the machine unless [sic] all gears were in neutral.”
Brief of Appellee, at 23-24.
2 AGCO cites the testimony of its Director of Product Safety and Standards,
David Murray, in support of this assertion. Murray testified that, if an OPC
were present, the tractor could turn off and lose power steering and anti-lock
brakes if the operator hit a pothole and bounced out of the seat, with
dangerous consequences if he was “towing thousands of pounds down the
road.” Id. at 25. Moreover, Murray testified that “if an operator or user is
insistent on bypassing safety mechanisms[, . . . he could] easily bypass the
OPC by putting a brick or a lunch pail or any weight on the seat.” Id.
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and how AGCO breached it.” Id, at 14. Rather, Timmonds’ sole expert,
Sevart, “focused on one thing and one thing only[:] AGCO’s failure to put an
[OPC] in the [t]ractor.” Id. at 27. Sevart “offered no testimony on the
standard of care of a manufacturer like AGCO in designing products or on how
AGCO breached that standard of care in its design of the [t]ractor.” Id.
Accordingly, AGCO asserts, Timmonds’ negligence claim fails.
The trial court granted a directed verdict based on the failure of
Timmonds’ expert witness, Sevart, to testify that AGCO had breached any
technical, manufacturing or industry standard of care. However, while
“[c]ompliance with [a] statute or regulation is admissible as evidence of [an]
actor’s exercise of due care, . . . such compliance ‘does not prevent a finding
of negligence where a_ reasonable [person] would take additional
precautions.’” Bourgeois v. Snow Time, Inc., 242 A.3d 637, 658 (Pa.
2020), quoting Berkebile v. Brantly Helicopter Corp., 281 A.2d 707, 710
(Pa. Super. 1971) (holding Superior Court erred in concluding lack of
testimony as to industry standards precludes finding of negligence for failure
to establish duty of care; rather, defendant’s duty “was not to comply with
industry standards[, but] to exercise reasonable care to protect its patrons
against unreasonable risks that its conduct of using rubber mats to decelerate
snow tubers created”). Accordingly, because AGCO’s compliance—or lack
thereof—with industry standards is not dispositive of Timmonds’ negligence
claim, we must proceed with a full analysis of the elements necessary to
establish a negligence claim.
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The first element of the negligence analysis requires us to determine
whether AGCO owed a duty of care to Timmonds. Under Pennsylvania law, in
determining whether such a duty exists, we are required to consider the
following five factors: (1) the relationship between the parties; (2) the social
utility of the defendant’s conduct; (3) the nature of the risk imposed and the
foreseeability of the harm incurred; (4) the consequences of imposing a duty
upon the defendant; and (5) the overall public interest in the proposed
solution. Althaus, 756 A.2d at 1169. “No one of these five factors is
dispositive. Rather, a duty will be found to exist where the balance of these
factors weighs in favor of placing such a burden on a defendant.” Phillips,
841 A.2d at 1008-09. Here, we are constrained to conclude that Timmonds
has waived his claim that AGCO owed him a duty under Pennsylvania law.
Accordingly, he is unable to demonstrate that the trial court erred in granting
a directed verdict on his negligence claim.
It is an appellant’s duty to present arguments that are sufficiently
developed for our review. In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012).
“The brief must support the claims with pertinent discussion, with references
to the record[,] and with citations to legal authorities.” Id. This Court “will
not act as counsel and will not develop arguments on behalf of an appellant.”
Commonweatith v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). Moreover,
“[i]t is not this Court’s responsibility to comb through the record seeking the
factual underpinnings of [an appellant’s] claim.” Irwin Union Nat. Bank &
Tr. Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010). “It is not the role
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of this Court to develop an appellant's argument where the brief provides mere
cursory legal discussion.” Lechowicz v. Moser, 164 A.3d 1271, 1276 (Pa.
Super. 2017). When defects in a brief impede our ability to conduct
meaningful appellate review, we may find issues to be waived. Hardy, 918
A.2d at 771.
In order to ascertain whether AGCO owed a duty to Timmonds, an
analysis of the A/thaus factors is required. Timmonds’ analysis of the duty
element of negligence consists, in its entirety, of the following:
The first element [duty,] is easily satisfied here. Timmonds was
a foreseeable user of [AGCO’s] tractor, and the evidence at trial
established that AGCO was aware that its tractor frequently failed
to start using its key and that users were therefore required to
use the far more dangerous bypass method to start the tractor.
Pennsylvania law establishes that a manufacturer owes a duty to
the intended user of its products. The Supreme Court has
recognized a five-factor test to determine the existence of a duty
between parties. The determination of whether a duty exists in a
particular case involves weighing: (1) the relationship between
the parties; (2) the social utility of the actor’s conduct; (3) the
nature of the risk imposed and foreseeability of the harm incurred;
(4) the consequences of imposing a duty upon the actor; and (5)
the overall public interest in the proposed solution. A/thaus[, 756
A.2d at 1169].
Brief of Appellant, at 17.
Timmonds accurately recites the correct legal principle governing this
Court’s determination as to the existence of a duty; however, having done so,
he fails to take the required next step of applying that legal principle to the
record in such a way as to facilitate appellate review of his claim. Timmonds’
failure to address the Althaus factors essentially leaves this Court in the
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position of considering a theoretical claim, particularly where the trial court,
likewise, did not address the factors. This Court has previously observed that
courts “are ‘least well suited’ for determining whether a duty exists as a matter
of law because it ‘is the Legislature's chief function to set public policy and the
courts’ role to enforce that policy, subject to constitutional limitations.”
Charlie v. Erie Ins. Exch., 100 A.3d 244, 251 (Pa. Super. 2014) (citation
omitted). Accordingly, “the default position of our courts is that, unless the
justifications for and consequences of judicial policymaking are reasonably
clear with the balance of factors favorably predominating, we will not impose
new affirmative duties.” Id. at 252 (citation and brackets omitted). Where,
as here, the party advocating for the existence of a duty has utterly failed to
provide the Court with any analysis of the issue within the confines of the
applicable legal framework, it would be imprudent and, indeed, inappropriate
to embark on that analysis ourselves.
In sum, because Timmonds’ argument as to the existence of a duty on
the part of AGCO lacks analysis of the relevant law, we find his claim as to the
trial court’s grant of a directed verdict on his negligence-based cause of action
waived.
Timmonds next asserts that the trial court erred by improperly
instructing the jury concerning the elements of a product liability claim.
Specifically, Timmonds asserts that the instructions given by the trial court
were not consistent with the state of the law post-Tincher because they
“omitted most of the fundamentally important factors the Supreme Court
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established in Tincher that a jury should consider in conducting the risk-
benefit analysis.” Brief of Appellant, at 36.
Regarding challenges to a trial court’s jury instructions, our Supreme
Court has instructed:
Error in a charge is sufficient ground for a new trial if the charge
as a whole is inadequate or not clear or has a tendency to mislead
or confuse rather than clarify a material issue. Error will be found
where the jury was probably [misled] by what the trial judge
charged or where there was an omission in the charge. A charge
will be found adequate unless the issues are not made clear to the
jury or the jury was palpably misled by what the trial judge said
or unless there is an omission in the charge which amounts to a
fundamental error. In reviewing a trial court’s charge to the
jury[,] we must look to the charge in its entirety.
Tincher v. Omega Flex, Inc., 180 A.3d 386, 397-98 (Pa. Super. 2018)
(“Tincher II"), quoting Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa.
2014).
The objective of a jury charge “is to explain to the jury how it should
approach its task and the factors it should consider in reaching its verdict.”
Tincher, 104 A.3d at 351. The charge “defines the legal universe in which a
jury operates for the purposes of the verdict.” Id. at 347 n.5. Where evidence
supports an instruction on a theory or defense, a charge on the theory or
defense is warranted. Id. at 408. At that point, “[t]he trial court has broad
discretion in phrasing its instructions, and may choose its own wording so long
as the law is clearly, adequately, and accurately presented to the jury for its
consideration.” Id.
[W]hen the propriety of the jury instruction of the trial court is at
issue, those instructions must be viewed jn toto to determine if
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any error has been committed. Unless the charge as a whole can
be demonstrated to have caused prejudicial error, we will not
reverse for isolated inaccuracies.
Wilkerson v. Allied Van Lines, Inc., 521 A.2d 25, 32 (Pa. Super. 1987).
Here, Timmonds argues that the court’s instruction on the risk-benefit
standard was incomplete, as it “omitted most of the fundamentally important
factors the Supreme Court established in Tincher.” Brief of Appellant, at 36.
However, Timmonds fails to specify which factors the court omitted, how the
evidence supported their inclusion, Tincher, supra (proposed charge must
be supported by evidence), or the manner in which he was prejudiced by the
omission of those factors. Wilkerson, supra (appellant must demonstrate
prejudice). Rather, Timmonds simply reproduces his requested instruction,
as well as the instruction given by the trial court, and summarily asks us to
find that the latter was lacking because it did not include “all seven of the risk-
benefit factors that the Supreme Court's Tincher ruling viewed as relevant,
[which] prejudicially deprived [him] of his right to have the jury evaluate the
evidence of product defect under the legal test” mandated by Tincher. Brief
of Appellant, at 37. Accordingly, for the same reasons we deemed Timmonds’
first claim waived, we similarly conclude that his argument here lacks analysis
of relevant law as applied to the facts of the case. Thus, his claim that the
trial court’s jury instructions were improper as to the risk-benefit standard is
waived.
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Moreover, during the jury charge conference, Timmonds’ counsel agreed
to the court’s proposed jury instruction on the risk-utility factors, which was
virtually identical to the charge given at trial:
[COUNSEL FOR TIMMONDS]: I’m assuming once we—can Your
Honor read back where we are?
THE COURT: We haven't left where we started.
The tractor was unreasonably dangerous if a reasonable person
would conclude that the probability and seriousness of harm by
the product outweigh the burden of taking precautions. You may
consider the following factors: [t]he seriousness of the
potential harm resulting from the use of the product; the
likelihood that the harm would occur; the feasibility of an
alternative safer design at the time of manufacture or sale
of the product; the cost of an alternative design; and the
disadvantages of an alternate design.
[COUNSEL FOR AGCO]: We are good with that.
[COUNSEL FOR TIMMONDS]: Yes, Your Honor.
N.T. Jury Trial, 6/18/18, at 77-78 (emphasis added). At trial, the court
instructed the jury, in relevant part, as follows:
[THE COURT: ] The second[ theory|—remember it’s and/or not an
and—the tractor was unreasonably dangerous because a
reasonable person would conclude that the possibility and
seriousness of harm posed by the product as designed outweighed
the burden or cost of taking precautions. You may consider the
following factors: The seriousness of the potential harm
resulting from the foreseeable use of the product as
designed; the likelihood that the harm would occur when
used in a foreseeable manner; the feasibility of an
alternative safer design or other safety precautions at the
time of manufacture or sale of the product; the cost of an
alternate design or other safety precautions, and
disadvantages of an alternate design or other safety
precautions.
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N.T. Jury Trial, 6/19/18, at 202-03 (emphasis added).
In order to preserve an issue for appellate review, a litigant must place
a timely, specific objection on the record. See Samuel-Bassett v. Kia
Motors Am., Inc., 34 A.3d 1, 45 (Pa. 2011); Straub v. Cherne Indus., 880
A.2d 561, 566 (Pa. 2005). Issues that are not preserved by specific objection
in the lower court are waived. Pa.R.A.P. 302(a); Straub, 880 A.2d at 617-
18. Because counsel did not object to the court’s proposed instruction—and,
in fact, indicated his agreement to it—we conclude that, for this reason also,
Timmonds has waived his claim.
Next, Timmonds asserts that the trial court erred by failing to preclude
the admission of evidence regarding the negligence of his employer, Ley, and
allowing cross-examination and argument by defense counsel with regard
thereto.
[The a]ldmission of evidence is within the sound discretion of the
trial court and a trial court’s rulings on the admission of evidence
will not be overturned absent an abuse of discretion or
misapplication of law. Schuenemann v. Dreemz, LLC, 34 A.3d
94, 100-01 (Pa. Super. 2011). An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias[,] or ill-will, as shown by the evidence or the record,
discretion is abused. Id.
Maisano v. Avery, 204 A.3d 515, 523 (Pa. Super. 2019). For a trial court’s
evidentiary ruling to constitute reversible error, the ruling must not only be
erroneous, but also harmful to the complaining party. Whitaker v.
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Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 522 (Pa. Super.
2009).
The Pennsylvania Rules of Evidence provide that, generally, all relevant
evidence is admissible, see Pa.R.E. 402, and that “[e]vidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the
action.” Pa.R.E. 401. However, a court “may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
Here, Timmonds asserts that the testimony in question was barred by
section 303 of the Workers’ Compensation Act.!9 Section 303 makes
compensation under the Act the exclusive remedy whenever an employee is
injured within scope of his employment and bars third parties from joining
employers as additional defendants or seeing apportionment against them.?!!
10 77 P.S. §§ 1-2710.
11 Section 303 provides as follows:
(a) The liability of an employer under this act shall be exclusive
and in place of any and all other liability to such employe[e]s, his
legal representative, husband or wife, parents, dependents, next
of kin or anyone otherwise entitled to damages in any action at
law or otherwise on account of any injury or death as defined in
section[s] 301(c)(1) and (2) or occupational disease as defined in
section 108.3
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Prior to trial, Ley was dismissed from the action by stipulation after it became
clear that any claim against it was barred by section 303. Thereafter,
Timmonds filed pre-trial motions in /imine, arguing that defendants should be
precluded from offering “evidence, argument, or testimony that [Ley] was
negligent or otherwise at fault for [Timmonds’] injuries.” Brief of Appellant,
at 38. The trial court denied those motions.!2 Timmonds argues that this
ruling was in error, as such evidence “is explicitly and unequivocally barred by
long-established Pennsylvania case law about the apportionment of liability to
a plaintiff's employer when the employer is immune from suit under [s]ection
303(b) of [the Act].” Id. at 43. Timmonds asserts that “[t]he Pennsylvania
Supreme Court has made it clear that any evidence of [Timmonds’] employer's
negligence should have had absolutely no place in this trial[,] was wholly
(b) In the event injury or death to an employe[e] is caused by a
third party, then such employe[e], his legal representative,
husband or wife, parents, dependents, next of kin, and anyone
otherwise entitled to receive damages by reason thereof, may
bring their action at law against such third party, but the
employer, his insurance carrier, their servants and agents,
employe[e]s, representatives acting on their behalf or at their
request shall not be liable to a third party for damages,
contribution, or indemnity in any action at law, or otherwise,
unless liability for such damages, contributions or indemnity shall
be expressly provided for in a written contract entered into by the
party alleged to be liable prior to the date of the occurrence which
gave rise to the action.
77 P.S. § 481 (footnotes omitted).
12 The court denied Timmonds’ motions without prejudice to his right to raise
appropriate objections at trial, concluding that the purported conduct of Ley
was relevant to the factual cause of Timmonds’ accident. See Trial Court
Opinion, 8/27/19, at 39.
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irrelevant[,] and should not have been used by defendants to offset their
liability for [Timmonds’] accident and injuries.” Id. at 46. Timmonds further
argues that, “[e]ven if there were arguably some marginal relevance of
evidence, argument[,] or testimony that [Timmonds’] employer was
negligent—despite the Supreme Court[’s] . . . repeated holdings to the
contrary—such relevance is vastly outweighed by the danger of unfair
prejudice, confusing the issues[,] and misleading the jury.” Id. at 46-47.
The trial court concluded that, while section 303 precludes a third party
from bringing an action in tort or seeking apportionment against an employer,
it does not, by its terms, preclude a third party from contesting the actual
cause of injuries or contesting that a plaintiff has met his burden of proof
regarding the cause of the incident in issue. See Trial Court Opinion, at 40.
Because evidence of Ley’s actions was relevant to causation and did not
unfairly prejudice Timmonds, the court concluded that the evidence was
admissible, articulating its reasoning as follows:
The instant claim presented a thorny evidentiary landscape due to
the differing legal claims among the parties. [Timmonds’] theories
of liability as to AGCO were related solely to the production of a
defectively designed product. [Timmonds’] theories of liability as
to MM Weaver were twofold: one was based on the sale of a
defectively designed product and the other was an independent
claim of negligence for the sale of the tractor without a guard or
manual. [Timmonds’] theory of liability as to the Turf Defendants
was that they had removed the guard and resold the tractor back
to MM Weaver without the guard. AGCO’s primary defenses were
that the product had been changed substantially by the removal
of the guard and that [Timmonds’] hotwiring/jumpstarting of the
tractor was not an intended use, and this combined misuse was
the sole cause of the accident. The Turf Defendants’ and MM
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Weaver's primary defenses were that Ley, or one of [Timmonds’]
co-workers, had removed the guard, not them; therefore,
[Timmonds] could not meet his burden of proving that the conduct
of either the Turf Defendants[] or MM Weaver, prior to the sale to
Ley, was a factual cause of the incident. Accordingly, this [c]ourt
ruled that evidence of Ley’s actions and/or inactions concerning
the removal of the guard was relevant to the causation
defenses and that the probative value far outweighed any
prejudice to [Timmonds]. It was the above legal theories
pursued by [Timmonds], and the concomitant defenses, that
guided this [c]Jourt’s evidentiary rulings as to relevance.
[Timmonds] alleged that the Turf Defendants were negligent in
removing the guard covering the solenoid starter sometime
between 2006 and 2008 when the Turf Defendants had the at-
issue tractor [in its possession]. [Timmonds] also alleged that MM
Weaver was negligent for selling the at-issue tractor to Ley in
2008 without the guard covering the solenoid starter and/or
without the operator manual. In a negligence action, [a plaintiff]
has the burden of proving, by a preponderance of the evidence,
that the harm suffered was due to the conduct of the defendant.
The assessment of whether [a p|]laintiff has met this burden is
most often a jury determination, unless “it is clear that reasonable
minds could not differ on the issue.” As stated by our Supreme
Court, “[i]n establishing a prima facie case, the plaintiff need not
exclude every possible explanation of the accident; it is enough
that reasonable minds are able to conclude that the
preponderance o the evidence shows defendant’s conduct to have
been a substantial cause of harm to the plaintiff.” Here, the
determination of liability in [Timmonds’] negligence claims for the
absence of the guard and manual required the jury to assess when
the guard and the manual were removed and by whom.
Accordingly, evidence of Ley’s actions and/or inactions concerning
the removal of the guard and the manual were critical to [the
defenses of] MM Weaver and Turf Defendants [] related to their
own liability.
Moreover, because [Timmonds] was pursuing negligence claims
against Turf Defendants and MM Weaver, these [d]efendants were
pursuing their own claims of comparative negligence against
[Timmonds] with regard to his operation of the tractor. To defend
against the claims of comparative negligence, [Timmonds] himself
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introduced evidence that he only jumpstarted the tractor because
of his employer’s instructions, thereby interjecting Ley’s lackluster
training of employees and Ley’s condoning of the purported
misuse. [13]
Id. at 41-42 (emphasis in original). We concur with the trial court’s analysis
that the evidence was relevant to the issue of causation and that its probative
value was not outweighed by a danger of unfair prejudice to Timmonds. !4
Moreover, Timmonds is unable to demonstrate that the evidence is
barred by section 303 of the Act. First, section 303(b) does not preclude the
introduction, in a case seeking damages from a third party, of evidence
regarding an employer’s negligence, where such evidence is relevant to
13 For example, Timmonds’ counsel elicited testimony regarding the deficiency
of Ley’s safety practices from Jeffrey Immel, Ley’s project manager on the job
site at which Timmonds was injured:
Q: Did you ever receive any training from anyone as to how to
use this tractor?
A: No. Not another tractor to use [sic].
Q: Did you or anyone with Ley, to the best of your knowledge,
ever give Mr. Timmonds any training in how to use that tractor?
A: I don’t know that he was or wasn’t.
Q: You certainly didn’t give him any training, though?
A: No.
N.T. Jury Trial, 6/5/18, at 47.
14 We note that Timmonds’ argument as to unfair prejudice consists of a single
paragraph in which he summarily states that the relevance of evidence in
question was “vastly outweighed by the danger of unfair prejudice, confusing
the issues and misleading the jury.” Brief of Appellant, at 46-47. Because
Timmonds fails to develop an argument as to the legal or factual basis for this
assertion, any claim regarding unfair prejudice is waived. Hardy, supra.
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defenses raised by the third party. Rather, the statute simply precludes a
third party from either bringing an action or seeking apportionment against
an employer. Second, none of the cases relied upon by Timmonds addresses
the admissibility of evidence of an employer’s negligence where it is relevant
to another party’s defense. See Tsarnas v. Jones & Laughlin Steel Corp.,
412 A.2d 1094 (Pa. 1980) (upholding constitutionality of section 303 and
affirming dismissal of third-party complaint seeking to join employer as
additional defendant); Heckendorn v. Consolidated Rail Corp., 465 A.2d
609 (Pa. 1983) (holding section 303 precludes joinder of employer as
additional defendant for purposes of apportioning fault), and Bell v. Koppers
Co., 392 A.2d 1380 (Pa. 1978) (holding section 303 did not bar joinder of
employer in suit where injuries occurred prior to effective date and suit was
filed subsequent to effective date).
For the foregoing reasons, Timmonds’ claim that the trial court erred in
admitting evidence regarding Ley’s negligence is without merit.
Finally, Timmonds claims that the trial court erred in barring his counsel
from impeaching AGCO’s expert witness with the report of another, non-
testifying expert, retained by another defendant, whose report AGCO’s expert
purportedly reviewed and considered in reaching his own expert opinion.
Timmonds asserts that this evidence should have been admitted to “directly
impeach the false assertions regarding plaintiff's recommended alternate
design made” by AGCO’s expert. Brief of Appellant, at 50. He is entitled to
no relief.
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Some background is in order. Prior to trial, AGCO’s co-defendant,
Weaver, obtained an expert report from Mark Ezra, P.E., and John F. Huffman,
P.E., for use in a potential cross-claim against AGCO. In that report, Ezra and
Huffman concluded that the tractor was defective and that the defect was, in
part, the cause of Timmonds’ injuries. They further opined that the use of
OPC would have reduced the risk of injury to Timmonds. Weaver ultimately
decided not to pursue its cross-claim and, consequently, did not present
testimony from either Ezra or Huffman.
At trial, AGCO presented David Murray as an expert in tractor and
agricultural design and safety. On direct examination, Murray never referred
to the Ezra/Huffman report or stated that he had relied upon it in formulating
his opinion. On cross-examination, Timmonds’ counsel attempted to question
Murray regarding whether he had reviewed the Ezra/Huffman report. Counsel
for AGCO objected, and the trial court sustained the objection on the basis
that the opinions contained in the report were inadmissible hearsay, not
subject to any exception. The following exchanges then took place:
[COUNSEL FOR TIMMONDS]: Did you review any reports, other
than Mr. Sevart[’s], which discuss—I’m not going to get into what
they say—which discuss occupant presence controls?
[COUNSEL FOR WEAVER]: Same objection. Simply a different
way of phrasing something.
THE COURT: No. Did he review any other reports; yes or no?
[COUNSEL FOR TIMMONDS]: Regarding OPC.
A: I saw the report.
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Q: As an engineer, am I correct as a safety director, that if
someone comes forth, other than Mr. Sevart, and said OPS was
necessary technology that rendered your product defective, that
is something you would consider, right?
A: I would consider it on its merits.
Q: In your industry, am I correct that Mr. Sevart is not the only
one that has been advocating for OPCs for decades?
A: I don’t have a name to give you. I assume that’s correct,
yes.
Q: You don’t have a name to give me. Do you have two names?
A: Excuse me?
[COUNSEL FOR AGCO]: Objection.
THE COURT: Does he know any names, is that what you're
asking?
[COUNSEL FOR TIMMONDS]: He said a name. I’m
wondering if there [are] two.
THE COURT: Or three or five. Is there a significance about
the number?
[MURRAY]: So Ido remember a report by Mr. Sevart or his
father and one of their colleagues, if I remember right, if
that’s correct.
[COUNSEL FOR TIMMONDS]: And you know there [have] been
reports from people other than Mr. Sevart and his colleagues,
right, discussing OPC—
N.T. Jury Trial, 6/13/18, at 69-70, 73-73 (emphasis added). At this point, the
court interjected, excused the jury, and asked counsel to move on.
Subsequently, the court reaffirmed its previous ruling that Murray could not
be questioned specifically regarding the Ezra/Huffman report, and counsel for
Timmonds declined to re-cross-examine Murray.
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Timmonds now asserts that the trial court’s ruling precluded him from
impeaching Murray. Specifically, Timmonds argues that, during his testimony,
Murray repeatedly opined that OPC was not required on the
Massey Ferguson 451 tractor at issue. During cross[-
jexamination, Murray acknowledged that, before testifying, he
reviewed and considered other expert reports in this case,
including the reports provided by co-defendant M.M. Weaver of
Mr. Huffman and Mr. Ezra. Mr. Murray specifically confirmed that
he read and “considered on its merits” the report on OPC by Mr.
Huffman and Mr. Ezra. Yet, upon further examination, [Murray]
told the jury that the only people advocating for OPC’s inclusion
on Massey Ferguson tractors are associated with plaintiff’s expert
witness, Mr. Sevart.
The testimony of Mr. Murray stated to the jury that Mr. Sevart’s
report is the only evidence that he has reviewed which indicates
that the subject tractor is defective for not including OPC. This
was plainly untrue. [The Ezra/Huffman report] clearly impeaches
this testimony and provides that the Massey Ferguson 451 tractor
was unreasonably dangerous and defective. Huffman and Ezra
further opine that a proper design alternative would have been
the inclusion of an [OPC]. Huffman and Ezra confirm that OPC is
a reliable system. These expert conclusions, offered by a
defendant’s witnesses, directly impeach the false assertions
regarding [Timmonds’] recommended alternate design made by
Mr. Murray.
Brief of Appellant, at 48, 50 (citations to reproduced record omitted).
Timmonds is entitled to no relief.
A review of the trial transcripts reveals that Timmonds’ claim is based
on a mischaracterization of Murray’s testimony. First, Murray did not
“specifically confirm” that he read and “considered on its merits” the
Ezra/Huffman report. Rather, when asked, generally, if he had reviewed any
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other reports discussing OPC, he stated that he “saw the report.” N.T. Jury
Trial, 6/13/18, at 70. Counsel then asked, in hypothetical form, whether
Murray would consider an opinion that OPC was necessary and that its absence
rendered the tractor defective. Murray replied using the conditional tense: “I
would consider it on its merits.” Id. Subsequently, when counsel asked
Murray if it was correct that Sevart was not the only person advocating for the
inclusion of OPC, Murray responded that, while he could not provide a specific
name, he “assume[d] that’s correct.” Id, at 73.
It is clear from the foregoing that Murray: (1) did not testify that he
considered the Ezra/Huffman report on its merits in arriving at his expert
opinion and (2) did not deny that there were others in the industry, aside from
Sevart and his associates, who believed that OPC was a desirable safety
feature for tractors such as the one in question. Contrary to Timmonds’
argument, there no “obvious contradiction” in Murray’s testimony. Brief of
Appellant, at 50. Simply put, Murray’s statements were not inconsistent and
provided no basis for impeachment. Accordingly, we can discern no prejudice
that could have inured to Timmonds as a result of the trial court’s ruling, and,
for that reason alone, his claim must fail. Whitaker, supra (for trial court’s
evidentiary ruling to constitute reversible error, ruling must not only be
erroneous, but also harmful to complaining party).
Moreover, the legal basis for the court’s decision to disallow the
testimony is sound. Specifically, the case upon which Timmonds bases his
claim, Boucher v. Pennsylvania Hosp., 831 A.2d 623 (Pa. Super. 2003), is
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distinguishable. As the trial court thoroughly and correctly addresses this
issue in its comprehensive Rule 1925(a) opinion, see Trial Court Opinion,
8/27/19, at 20-29, we rely upon that analysis in further finding that Timmonds
is entitled to no relief on this claim. The parties are instructed to attach a
copy of that opinion in the event of further proceedings.
Judgment affirmed.
Judge Strassburger did not participate in the consideration or decision
of this Memorandum.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 4/12/21
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Received 11/1/2019 5:00:53 PMC eipjatést O2/6n/2aZtedn DG Pist
Filed 11/1/2019 5:00:00 PM Superior Court Eastern District
2916 EDA 2019
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENSYLVANIA
CIVIL TRIAL DIVISION
MICHAEL TIMMONDS : NOVEMBER TERM, 2015
Plaintiff ; NO. 03681
v. : CONTROL NO. 18070276
AGCO CORPORATION, et al. : OPINION IN SUPPORT OF
Defendants : DENIAL OF PLAINTIFF'S
; MOTION FOR A NEW TRIAL
OPINION
CARPENTER, J. AUGUST 27, 2019
In March 2015, Plaintiff Michael Timmonds was injured by an AGCO Massey Ferguson
451 Agricultural Utility Tractor while attempting to hotwire/jumpstart/bypass start the tractor
while it was in gear, From June 1, 2018 to June 20, 2018, Plaintiff tried his case before this
Court against the manufacturer of the tractor (AGCO), the seller of the tractor (MM Weaver),
and a previous owner of the tractor (Turf Defendants), At the heart of the case was whether the
movement of the at-issue tractor during Plaintiff's hotwire/jumpstart/bypass was a foreseeable
event or whether the movement of the tractor resulted from either an unintended misuse and/or a
substantial change (removal of a safety guard) after the tractor left the manufacturer’s
possession. Also at issue, was whether Turf Defendants, or another entity, removed the guard
and whether the tractor had an operator manual at the time it was sold to Plaintiff's employer in
2008. On June 20, 2018, the jury rendered verdict in favor of Defendants and against Plaintiff.
Plaintiff has filed the instant post-trial motion seeking a new trial on the following issues:
1. This Court improperly directed verdict on Plaintiff's claim of negligence against
Defendant AGCO.
2. This Court improperly limited the cross-examination of Defendant AGCO’s expert
witness.
3. This Court improperly instructed the jury regarding the elements of a products
liability claim.
4. This Court improperly denied Plaintiff's pre-trial Motion to Preclude Admission of
Evidence Regarding the Negligence of George E. Ley Co..
5. This Court improperly admitted evidence of Plaintiff's prior bad acts / character.
For the reasons that follow, this Court has denied Plaintiff's request.
PROCEDURAL HISTORY
i. Pre-Trial
On November 25, 2015, Plaintiff Michael Timmonds filed his initial Complaint against his
employer, Defendant George E. Ley Co.(“Ley”), the purported owner of the tractor, Eastern
Irrigation and Pump Company, LLC (“Eastern Irrigation”), and the manufacturer of the tractor,
AGCO Corporation d/b/a and/or f/k/a Massey Ferguson, Inc. (““(AGCO”). The initial Complaint
set forth a claim of Negligence against Ley and Eastern Irrigation and claims of Products Liability,
Negligence, and Breach of Warranty against AGCO. Plaintiffs claims against Ley were
eventually dismissed after several rounds of Preliminary Objections and Stipulations among the
various parties.
' On January 6, 2016, Ley and Eastern Irrigation filed Preliminary Objections to Plaintiff's Complaint, to which
Plaintiff filed his opposition on January 27, 2016. A Rule was issued regarding the issue of venue/jurisdiction for
March 28, 2016 and continued to April 27, 2016, On April 12, 2016, Plaintiff, AGCO, Ley, and Eastern Irrigation
entered a Stipulation that all claims and crossclaims against Ley were dismissed without prejudice. On April 27, 2016,
Eastern Irrigation filed a supplemental memorandum in support of the Preliminary Objections and Plaintiff filed a
supplemental memorandum in opposition to the Preliminary Objections. On August 2, 2016, the Hon, John Younge
docketed an Order overruling the Preliminary Objections. On February 9, 2016, AGCO filed an Answer with New
Matter and Crossclaim against Defendants Ley and Eastern Irrigation. On February 12, 2016, Ley and Eastern
irrigation filed and Answer to the Crossclaim and, on February 25, 2016, Plaintiff filed a Reply to New Matter. On
April 12, 2016, Plaintiff, AGCO, and the Eastern Irrigation entered a Stipulation that all claims and crossclaims against
Ley were dismissed,
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On April 14, 2016, Plaintiff filed an Amended Complaint reflecting the dismissal of Ley.
The Amended Complaint again asserted a claim of Negligence against Eastern Irrigation and
claims of Products Liability, Negligence, and Breach of Warranty against AGCO. The Amended
Complaint further asserted claims of Products Liability, Negligence, and Breach of Warranty
against two newly named Defendants: M.M. Weaver & Sons, Inc. (“MM Weaver’), who had been
a seller of the at-issue tractor, and Sporting Valley Turf Farms, Inc., Hummer Sports Surfaces,
LLC, and Hummer Turfgrass Systems, Inc. (collectively “Turf Defendants”), who had previously
owned the at-issue tractor. A central issue in the amended pleadings related to which Defendant,
if any, was responsible for removing a safety guard from the at-issue tractor. After a second round
of Preliminary Objections and other pleadings concerning, among other issues, proper jurisdiction
and venuc, the parties stipulated to dismiss Eastern Irrigation as a party to the suit. Following
Court disposition of the motions, all remaining Defendants filed an Answer to the Amended
Complaint and asserted cross claims against one another.”
* On May 3, 2016, Eastern Irrigation filed Preliminary Objections to Plaintiff's Amended Complaint, to which Plaintiff
filed his opposition on May 24, 2016. A Rule was issued regarding the issue of venue/jurisdiction for June 29, 2016,
On June 28, 2016, Eastern Irrigation filed a Praecipe to Withdraw its Preliminary Objections to Plaintiff's Amended
Complaint.
On May I1, 2016, the Turf Defendants filed Preliminary Objections to Plaintiff's Amended Complaint, to
which Plaintiff filed his opposition on June 2, 2016. On June 24, 2016, the Turf Defendants filed a Reply. On August
2, 2016, the Hon. John Younge docketed an Order overruling the Preliminary Objections. On May 24, 2016, AGCO
filed Preliminary Objections to Plaintiff's Complaint; however, on June 13,2016, AGCO filed a Praecipe to Withdraw
its Preliminary Objections. On May 31, 2016, MM Weaver filed Preliminary Objections to Plaintiff's Complaint;
however, on June 13, 2016, MM Weaver filed a Praecipe to Withdraw its Preliminary Objections. On June 23, 2016,
the Turf Defendants filed a Petition to Transfer Venuc. On June 27, 2016, AGCO filed a Motion to Join and Brief in
Support of the Motion to Transfer Venue. On July 13, 2016, Plaintiff filed his opposition to the Motion lo Transfer
Venue. On August 30, 2016, the Hon, John Younge docketed an Order denying the Motion to Transfer Venue. On
August 17, 2016, the Turf Defendants filed an Answer to Plaintiff's Amended Complaint with New Matter and
Crossclaims against AGCO, MM Weaver, and Eastern Irrigation. On August 19, 2016, MM Weaver filed a Reply to
Crossclaims. On September 14, 2016, Eastern Irrigation filed a Reply to Crossclaims. On December 15, 2016, Plaintiff
filed a Reply to New Matter. On January 24, 2017, AGCO filed a Reply to Crossclaims. On October 6, 2016, MM
Weaver filed an Answer to Plaintiff's Amended Complaint with New Matter and Crossclaims against AGCO, the Turf
Defendants, and Eastern Irrigation. On October 11, 2016, Eastern Irrigation filed a Reply to Crossclaims. On
November 8, 2016, the Turf Defendants filed a Reply to Crossclaims. On December 15, 2016, Plaintiff fited a Reply
to New Matter. On January 24, 2017, AGCO filed a Reply to Crossclaims.
On October 17, 2016, Eastern Irrigation filed an Answer to Plaintiff's Amended Complaint with New Matter
and Crossclaims against AGCO, MM Weaver, and the Turf Defendants. On October 19, 2016, MM Weaver filed a
4
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Following the case management deadlines in this case, the Turf Defendants filed a Motion
for Summary Judgment seeking dismissal of all claims asserted against them (Products Liability,
Negligence, and Breach of Warranty).? On January 22, 2018, the Court’ docketed an Order
dismissing the claims of Products Liability and Breach of Warranty as to the Turf Defendants.
Accordingly, the sole claim at trial as to the Turf Defendants was a Negligence claim. Al! claims
of Negligence, Breach of Warranty, and Products Liability remained for trial as to AGCO and MM
Weaver.
On or about May 30, 2018 this case was assigned to this Court for trial set to begin on June
1, 2018. Prior to the start of trial, the parties presented oral argument to this Court on
approximately twenty written motions and other various pre-trial issues and this Court entered
written Orders on or about June 4, 2018.° Many of the issues raised during motions in limine were
Reply to Crossclaims. On November 8, 2016, the Turf Defendants filed a Reply to Crossclaims. On January 18,
2017, Plaintiff filed a Reply to New Matter. On January 24, 2017, AGCO filed a Reply to Crossclaims.
On December 13, 2016, AGCO filed an Answer to Plaintiff's Amended Complaint with New Matter and
Crossclaims against the Turf Defendants and Eastern Irrigation. On December 15, 2016, Eastern Irrigation filed a
Reply to Crossclaims. On January 3, 2017, the Turf Defendants filed a Reply to Crossclaims. On January 20, 2017,
Plaintiff filed a Reply to New Matter.
On July 13, 2017, Plaintiff, AGCO, MM Weaver, and the Turf Defendants entered a Stipulation that all
claims and crossclaims against Eastern Irrigation were dismissed.
3 Plaintiff filed his opposition on November 2, 2017 and the Turf Defendants filed a Reply in support of summary
judgment on n November 15, 2017.
4 The disposing judge was the Hon. Rosalyn Robinson.
5 The inventory of all pre-trial motions is as follows:
1. Control! No. 18052143 — On May 16, 2018, the Turf Defendants filed a Motion in Limine to limit
Plaintiff's claim for past medical expenses to the amounts actually paid, pursuant to Moorhead, which MM Weaver
and AGCO joined, and to which Plaintiff filed his opposition on May 29, 2018. On June 4, 2018, this Court docketed
an Order granting the motion, by agreement.
2. Control No, 18052305 — On May 17, 2018, Plaintiff filed a Motion in Limine to preclude evidence or
testimony regarding Plaintiffs prior convictions and/or arrests, to which AGCO filed its opposition on May 29, 2018
and MM Weaver joined in the opposition. On June 4, 2018, this Court docketed an Order granting the motion in part,
specifically stating that such evidence or testimony were precluded “unless such information is proven to be relevant
to the testimony of the vocational experts.”
3. Control No. 18052307 - On May 17, 2018, Plaintiff filed a Motion in Limine to preclude certain evidence
and testimony of MM Weaver’s expert witness, Dr. Brian K. Brame], to which MM Weaver filed its opposition on
May 29, 2018. On June 4, 2018, this Court docketed an Order denying the motion without prejudice to raise objections
al trial.
4. Control No. 18052308 — On May 17, 2018, Plaintiff fited a Motion in Limine to preclude any evidence,
testimony or argument regarding parties that have been dismissed, to which AGCO filed its opposition on May 29,
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2018 and MM Weaver joined in the opposition. On June 4, 2018, this Court docketed an Order denying the motion
to the extent that the Defendants were arguing the Fair Share Act and without prejudice to raise objections at trial.
5. Control No. 18052312 — On May 17, 2018, Plaintiff filed a Motion in Limine to preclude MM Weaver
from offering a liability defense at trial, to which AGCO and MM Weaver filed opposition on May 29, 2018. On June
A, 2018, this Court docketed an Order denying the motion.
6. Control No. 18052317 — On May 17, 2018, Plaintiff filed a Motion in Limine to preclude evidence of
Plainitff’s prior drug use, to which AGCO filed its opposition on May 29, 2018 and MM Weaver joined in the
opposition. On June 4, 2018, this Court docketed an Order granting the motion in part, specifically precluding “any
evidence, testimony, or argument regarding or referencing [Plaintiff]’s 2012 guilty plea for possession of a controlled
substance and drug paraphernalia and/or the allegedly failed 2001 drug test, unless, at trial, such evidence is proven
to be relevant to the testimony of the vocational experts or to life expectancy.”
7. Control No. 18052320 — On May 17, 2018, Plaintiff filed a Motion in Limine to allow use of relevant and
‘admissible excerpts of video depositions during opening statements, to which the Turf Defendants filed their
opposition on May 29, 2018 and MM Weaver and AGCO joined in the opposition, On June 4, 2018, this Court
docketed an Order denying the motion.
8. Control No. 18052375 — On May 17, 2018, the Turf Defendants filed a Motion in Limine to preclude use
of videotaped testimony during opening statements, which MM Weaver and AGCO joined, and to which Plaintiff
filed his opposition on May 29, 2018. On June 4, 2018, this Court docketed an Order granting the motion.
9. Control No. 18052394 — On May 17, 2018, AGCO filed a Motion in Limine to preclude Dr. Robert Sing
from offering testimony outside the scope of his expertise, which MM Weaver and the Turf Defendants joined, and to
which Plaintiff filed his opposition on May 29, 2018. On June 4, 2018, this Court docketed an Order reserving the
motion for trial, but permitting Dr. Sing to testify as to those areas for which he had a reasonable pretention of
knowledge or expertise and which were fairly within the context of his report.
10. Control No, 18052395 — On May 17, 2018, AGCO filed a Motion in Limine to limit Kevin B. Sevart,
P.F. to the four corners of his report, which MM Weaver and the Turf Defendants joined. On June 4, 2018, this Court
docketed an Order reserving the motion for trial.
11. Control No. 18052398 — On May 17, 2018, AGCO filed a Motion in Limine to preclude Dr. Guy Fried
from offering testimony outside the scope of his expertise, which MM Weaver and the Turf Defendants joined, and to
which Plaintiff filed his opposition on May 29, 2018. On June 4, 2018, this Court docketed an Order reserving the
motion for trial.
12. Control No, 18052471 -- On May 17, 2018, AGCO filed a Motion in Limine to preclude cumulative
medical expert testimony from Plaintiff, which MM Weaver and the Turf Defendants joined, and to which Plaintiff
filed his opposition on May 29, 2018, On June 4, 2018, this Court docketed an Order denying the motion without
prejudice to raise objections at trial.
13. Control No. 18052521 — On May 17, 2018, the Turf Defendants filed a Motion in Limine to preclude
Plaintiff from presenting any testimony or evidence of Plaintiff's workers’ compensation decision, award, benefits, or
lien, which AGCO and MM Weaver joined, and to which Plaintiff filed his opposition on May 29, 2018. On June 4,
2018, this Court docketed an Order granting the motion in part, specifically stating that “workers’ compensation issues
shall not be directly presented to the jury; however, the Court will hear argument as to the amount of medical expenses
when discussing the charge to the jury at the June 19, 2018 charging conference.”
14. Control No. 18052557 — On May 17, 2018, the Turf Defendants filed a Motion in Limine to preclude
the testimony of Kevin B. Sevart, P.E., which MM Weaver joined, and to which Plaintiff filed his opposition on May
29, 2018. On June 4, 2018, this Court docketed an Order denying the motion without prejudice to raise objections at
trial.
15. Control No. 18052563 — On May 17, 2018, the Turf Defendants filed a Motion in Limine to preclude
the testimony of Charles Miller, to which Plaintiff filed his opposition on May 29, 2018. On June 4, 2018, this Court
docketed an Order denying the motion without prejudice to raise objections at trial.
16. Control No. 18052564 — On May 17, 2018, the Turf Defendants filed a Motion in Limime to preclude
the introduction of any evidence of liability, to which Plaintiff tiled his opposition on May 29, 2018. On June 4, 2018,
this Court docketed an Order denying the motion without prejudice to raise objections, motions for non-suit, and/or
motions for directed verdict at trial.
17. Control No. 18052664 — On May 18, 2018, AGCO filed a Motion in Limine to preclude Kevin Sevart,
PE. from offering failure to warn testimony, which MM Weaver joined, and to which Plaintiff filed his opposition on
May 29, 2018. On June 4, 2018, this Court docketed an Order denying the motion without prejudice to raise objections
6
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deferred for trial and, therefore, during trial, these issues, among other evidentiary issues, were
exhaustively litigated over many hours of argument. Several of these issues are again presented
in Plaintiff's post-trial motion and thus, will be discussed in more detail later in this Opinion.
ii. Trial
Jury selection spanned two days, concluding on June 4, 2018, and Plaintiff presented his
case in chief from June 5, 2018 to June 12, 2019. On June 12, 2018, after Plaintiff rested his case
in chief, the Turf Defendants filed a written Motion for Directed Verdict or Compulsory Nonsuit.°
On Sune 12, 2018, MM Weaver, and AGCO each joined in the motion and this Court heard
argument on the motion, whcrein each Defendant made their individual requests for nonsuit.
Following argument, this Court denied all requests for nonsuit in consideration of the coordinate
denial of summary judgment by the Hon. Rosalyn Robinson based upon the same legal argument;
however, in denying the requests for nonsuit, this Court reserved continued argument for motions
for directed verdict at the close of all evidence, thereby leaving the issue open.”
at trial and specifically stating that the witness may testify as to that information which is fairly within the context of
his report.
18. Control No. 18053809 — On May 29, 2018, Plaintiff filed a Motion in Limine to preclude any evidence,
argument, or testimony, that Plaintiff's employer, George E. Ley, Co., was negligent, to which the Turf Defendants
filed their opposition on June 4, 2018. On June 4, 2018, this Court docketed an Order denying the motion to the extent
that the defenses at issue were relevant to factual cause and without prejudice to raise objections at trial.
19. Control No. 18053810 — On May 29, 2018, Plaintiff filed a Motion in Limine to preclude evidence of
governmental regulations or industry standards, to which AGCO filed its opposition on June 4, 2018.
20. Control No, 1805381 1 — On May 29, 2018, Plaintiff filed a Motion in Limine to instruct the jury to infer
that the testimony of Mr. George Ley, Mr. Jeff Immell, and Mr. Jeff Martin would be adverse to AGCO if they did
not appear. On June 4, 2018, this Court docketed an Order reserving the motion for trial.
Further, on June 13, 2018, the Turf Defendants filed a Motion in Limine (Control No. 18061580) to limit the
testimony of Charles Miller and, on June 14, 2018, Plaintiff submitted a bench brief in support of the cross-
examination of AGCO’s expert witness, David Murray, concerning the report of John Huffman and Mark Ezra, which
Mr. Murray reviewed and considered prior to offering his opinions to the Court
6 The motion was filed at Control No. 18061430. Plaintiff filed bis opposition on June 15, 2018 and the Turf
Defendants filed a Surreply on June 15, 2018
7 See N.T. 6/12/2018 at 39-58 (providing argument of Turf Defendants); 58-66 (providing argument of MM
Weaver); 66-78 (providing argument of (AGCO).
Rete eee ge Te MA pn ge eon ee ey SR eee RE AR RS ae
On June 15, 2018, amidst the discussion with the parties regarding the moving in of
exhibits, this Court referenced the upcoming arguments regarding the directed verdict which the
Court had left open from June 12-2018, Later in the day, following the close of evidence on June
15, 2018, the Turf Defendants, MM Weaver, and AGGO each presented their separate requests for
directed verdict.? On June 15, 2018, this Court addressed the arguments of each Defendant and
declined to make any immediate grant of a directed verdict that afternoon, but reiterated that the
issue was still] pending as it related to how the jury would be charged and the verdict slip crafted,
as would be discussed at the charging conference on the following Monday (June 18, 2018).
On June 18, 2019, this Court conducted a full day charging conference to parse out the
various claims and theories of liability against each Defendant, to draft the appropriate charges for
the jury pertaining to such claims, and to create a clear and comprchensive verdict slip.
Additionally, the multiple defense requests for directed verdict were still pending before this Court.
After five hours of unresolved dispute over the claims, theories, charge, and verd ict slip, this Court
directed Plaintiff to identify the theories of negligence against each Defendant. Utilizing the hours
of discussion and prior argument on the issue throughout trial, this Court determined that Plaintiff
had not established its claim of negligence against AGCO and directed verdict on that claim only.
The transcript from June 182018 reflects the following:
THE COURT: What’s your negligence theory against each of the defendants?
MR. GOODMAN: Negligence theory against defendant, AGCO, is that it was
negligent for not utilizing all available safety technology to prevent the tractor
from moving -- I'm reading from what I had submitted -- to prevent the tractor
from moving during a bypass start, and failing to adequately monitor history of
bypass start accidents.
THE COURT: Where does the duty come from?
MR. GOODMAN: From the duty on a product manufacturer to take reasonable
steps to make sure their product is safe, which incorporates the duty to monitor
what's going on with it.
8 See N.T. 6/15/2018 at 84-108 (providing argument of Turf Defendants), 109-114 (providing argument of MM
Weaver); 114-125 (providing argument of AGCO).
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MR. LEHMAN: There's been no expert testimony whatsoever about any
negligence duty as to AGCO. The only expert testimony against AGCO is the
product is defective and it doesn't have OPS. That's what Mr. Sivart sat up there
and said.
MR. MURTAGH: Page 77, Mr. Sivart's testimony.
THE COURT: You need an expert.
MR. GOODMAN: There was testimony on the cross-examination of Mr. Murray
and Mr. Ney concerning the responsibilities of the manufacturer, make sure their
products are reasonably safe. There was the --
THE COURT: That's the obligation that the law puts on them.
MR. GOODMAN: Yes, there's an obligation the law puts on them. Duty is an
issue of --
THE COURT: You have to have an expert that comes forward and says, you
have a duty to do this, you have a duty to, you know, measure it this way, and
place it that way and, you know, do this research and that research. | didn't hear
any of that.
MR. GOODMAN: Duty is an issue, A, for the Court of law. B, Mr. Murray
admitted --
THE COURT: Are you asking for a directed verdict?
MR. MURTAGH: On this issue? Yes, Your Honor.
THE COURT: It is granted.’
Plaintiff disingenuously avers in the instant motion that this Court’s decision was made sua sponte,
however, the extensive record proceedings and the ongoing determinations of the requests for
nonsuit and/or directed verdict over the course of the trial belie this assertion.
Even though this Court instructed the partics on June 15, 2018 that the charging conference
would be on June 18, 2018, Plaintiff submitted a “bench brief” on June 19, 2018, after this Court
had already held the charging conference and rejected Plaintiff's negligence claims against AGCO.
This Court treated the June 19, 2018 filing as an apparent attempt to request reconsideration of this
Court’s ruling from June 18, 2018. This Court did not reconsider its ruling, but clarified that the
ruling on June 18, 2018 was based upon Plaintiff's failure to meet his burden of proof and not on
a per se rule precluding the submission of both a negligence and strict products liability to the jury.
On June 19, 2018, following the closing arguments of counsel, this Court charged the jury. On
°N.T. 6/18/2018 p.m. session at 30-32.
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June 20, 2018, the jury returned a verdict in favor of all Defendants and against the Plaintiff on all
claims.
iii, Post-Trial
On July 2, 2018, Plaintiff filed the instant Post-Trial Motion for a New Trial and, on July
6, 2018, this Court issued a briefing schedule and scheduled oral argument for September 17, 2018.
On July 18, 2018, AGCO filed a Motion for Extraordinary Relief to extend the oral argument date,
which this Court granted and rescheduled oral argument for October 1, 2018. On September 27,
2018, AGCO filed a second Motion for Extraordinary Relief to extend the oral argument date,
which this Court granted and rescheduled oral argument for November 7, 2018. Following oral
argument, the parties filed supplemental briefs and further stipulated to a waiver of the 120 day
disposition requirement for post-verdict motions under Pa.R.C.P 227.4(1)(b). During the
pendency of this post-trial motion, Plaintiff has settled his claims against MM Weaver and the
Turf Defendants; however, AGCO remains a party to the litigation.
DISCUSSION
It is well settled that the grant of a new trial is a matter within the sound discretion of the
trial court.'° As long held by our Supreme Court, “[t]he grant of a new trial is an effective
instrumentality for seeking and achieving justice in those iaaaees where the original trial,
because of taint, unfaimess or error, produces something other than a just and fair result, which,
after all, is the primary goal of all legal proceedings.”'' In evaluating a request for a new trial, the
trial court shall employ a two-part analysis: first, the court must determine if any mistakes —
0 Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998).
' Dornon v. McCarthy, 195 A.2d 520, 522 (Pa. 1963).
10
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whether they be factual, legal, or discretionary — occurred at trial; and second, if it is determined
that any mistake(s) occurred, the court must assess whether such mistake provides a sufficient
basis for granting a new trial.!? The trial court’s determination of whether a sufficient basis exists
is governed by the harmless error doctrine.'? In explaining such standard, our Supreme Court has
opined that “{a] new trial is not warranted merely because some irregularity occurred during the
trial or another trial judge would have ruled differently; the moving party must demonstrate to the
trial court that he or she has suffered prejudice from the mistake.”"4
Additionally, while this Court acknowledges the Turf Defendants’ arguments regarding the
posture of Plaintiff's instant motion — classifying it as a request for modification pursuant to title
42 Pa.C.S §5505 rather than a post-trial motion pursuant to by Pa.R.C.P. 227.1 — this Court has
decided, in the interests of judicial cconomy, to address the substantive issues as raised in a post-
trial motion governed by Pa.R.C.P. 227.1
1. The trial court properly directed verdict on Plaintiff’s negligence claim
against Defendant AGCO
Plaintiff's first claim of error is that this Court improperly dismissed Plaintiff's claim of
negligence against Defendant AGCO. Plaintiff's assertions of error are twofold: first, that this
Court made an error in directing verdict sua sponte; and second, that this Court made an error of
law in determining that Plaintiff had not set forth the requisite elements of a negligence claim
against AGCO. This Court disagrees. Additionally, while this Court acknowledges and
appreciates AGCO’s arguments regarding the timeliness of Plaintiff's instant claim of error, this
2 Harman ex rel. Harman vy. Borah, 756 A.2d 1116, 1122 (Pa. 2000).
(3 Harman ex rel. Harman, 756 A.2d at 1122.
4 Harman ex rel. Harman, 756 A.2d at 1122.
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Court has decided to address Plaintiff's unfounded and disingenuous claims of a “sua sponte”
directed verdict and the Court will defer discussion on the issue of waiver for a 1925(a) Opinion.
The extensive record proceedings summarized in the procedural history above highlight
that there were numerous requests for nonsuit and/or directed verdict, in written and oral form over
the course of this litigation. During trial, this Court heard argument from each of the Defendants
regarding nonsuit at the close of Plaintiff's evidence on June 12, 2018. While all requests for
nonsuit were denied, partially because of a previous ruling from another judge, this Court
acknowledged that the argument would be continued at the close of all evidence, thereby leaving
the issue open.'® On June 15, 2018, each of the Defendants again presented their separate requests
for directed verdict.'® In addressing the various arguments, this Court repeatedly indicated that
the final determination for all requests for directed verdict would be born out at the charging
conference, where Plaintiff would ultimately have to indicate the claims being moved on with the
related charges and interrogatorics for the jury. Specifically, over the course of the arguments on
June 15, 2018, this Court stated:
THE COURT: Then you've got to really look how you're asking me to charge,
because there is plenty of -- our jurisdiction hasn't thought about this, but 25 years
ago, when they said you can't put a negligence and a strict product liability claim
in, because by the way you charge, you can get an inconsistent verdict. And so
you better make sure, I'm not giving anything over, but { will not charge so that
there's an inconsistent verdict. And we'll just look at it -- it may be that that means
I'm granting your directed verdict on one or both. I'm not saying you're not going
to ask me for both, and just need to parse out exactly what the elements of each
claim are. And that's why it's going to take us all day on Monday. But I am not -- I
am not -- you can -- I'm not telling you now, you just -- we'll work through it all. I
understand that you'll ask for products liability, and then there will be an
allocation, but that’s when you have to pull out the book, pull out the books, the
case law, and run through what the elements would be as to each party, and then
what's the evidence as to each party to see, really, are you making a strict liability
15 Soe N.T, 6/12/2018 at 39-58 (providing argument of Turf Defendants), 58-66 (providing argument of MM
Weaver}; 66-78 (providing argument of (AGCO).
16 See N.T. 6/15/2018 at 84-108 (providing argument of Turf Defendants), 109-114 (providing argument of MM
Weaver); | 14-125 (providing argument of AGCO),
12
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claim, as we call it, 402A claim or a negligence claim. Okay. Because a
negligence product liability claim is much harder to prove than a 402A products
liability claim. So it's just, you know, I'm just saying that that's why we'll separate
them. I've just, to the jury, always say products liability, because it doesn't really
matter in the end.
MR. DEMARCO: So we're clear, | would request a directed verdict on that
products claim.
THE COURT: Understood.
MR. DEMARCO: Based on modifications,
THE COURT: I'm not granting that. I'm just saying something is going to the
jury. I just don’t know exactly how the jury will get charged.!7
[ewes]
THE COURT: I'm not directing a verdict at this point, but { want it to be
understood that that does not necessarily mean that I will charge on everything. It
may be that your -- I don't know until we actually get down to the details of what
the clements of the claim are.'®
[.
THE COURT: I've been able to avoid the issue until now, but [ think this is one
that I cannot. I will have to make a ruling. I'm telling you that I don't know where
the Supreme Court is going on it. I don’t. Maybe if you guys have some — I will
even look at unpublished cases, even though I know they're not precedential, just
to get a sense for what's happening from the Superior Court. I know they're doing
things and I know they're doing things in an unpublished way. So if you guys
have cases where they're unpublished, but give us guidance, I will look at them.
Okay. So I'm denying your directed verdict. Mr. Murtagh I understand you're
making a directed verdict under the line of cases. That would be the Davis versus
[Berwind] and what's included in those.'?
Eve al
THE COURT: Get ready to get your jury instructions together, yes. You can
interpret it in that way. But | don’t want -- for our record, when -- | mean, directed
verdict, I'm treating this as, yeah, I get to go home and I'm not on the verdict slip,
directed verdict. It's not taking away that in some ways directed verdict also is
how the judge charges. So that's a different issue. { just want you to understand
that. When I say we'll see you at jury instructions, don’t say, oh, well you said you
were denying that directed verdict. I'm not necessarily ruling on your issues of
partial directed verdict.”°
As such, on Friday June 15, 2018, when the trial broke for the weekend, it was clear to all of the
parties that the issue of how the jury would be charged vis-a-vis both negligence and strict products
"TNT. 6/15/2018 at 112-114.
'8N_T. 6/15/2018 at 115-116.
ON.T. 6/15/2018 at 121-122
20. N.T. 6/15/2018 at 125.
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liability was still pending and would be resolved at the charging conference scheduled for the
following Monday, June 18, 2018.
At the full-day charging conference on June 18, 2018, the parties continued their arguments
regarding the claims of negligence and strict liability against each Defendant and the appropriate
charges and interrogatories for the jury pertaining to such claims. After five hours of unresolved
dispute, this Court directed Plaintiff to identify the theories of negligence against each Defendant
in order to try to create the most clear and comprehensive charge and related interrogatorics.
Utilizing the hours of discussion and prior argument on the issue throughout trial, this Court
determined that Plaintiff had not established his claim of negligence against AGCO and directed
verdict on that claim only.”! Plaintiff’s instant claim of error grossly mischaracterizes the posture
of the partial directed verdict granted by this Court, as it wholly ignores the extensive on-record
argument regarding the requests for nonsuit and the requests for directed verdict that this Court
heard and on which this Court continued to defer final determination. As such, this Court finds
the instant claim without merit and has determined that no error occurred.
In addition to challenging the posture of the directed verdict, Plaintiff also asserts that this
Court made an error of law in determining that Plaintiff had not set forth the requisite elements of
a negligence claim against AGCO. This Court disagrees. Initially, this Court acknowledges
AGCO’s continuing argument that, in the wake of Tincher v. Omega Flex”, Plaintiff may not
simultaneously present the jury with both a negligent design theory and a strict liability theory
under Restatement (Second) of Torts § 402A. AGCO avers that the rationale in Phillips v. Cricket
Lighters? — on which Plaintiff relies — no longer supports the simultaneous submission of a
21 NT. 6/18/2018 p.m. session at 30-32, as included in the Procedural History at p8-9.
22 104 A.3d 328 (Pa. 2014).
3 84} A.2d 1000 (Pa. 2003).
14
ae
ie Rent yao eee
es
Sore we
see eee a ee otis i te te dE Sa Ro eae
negligent design theory and a 402A theory to the jury because the Phillips rationale was rooted in
the existing precedent of Azzarello v. Black Brothers Company** whercin the court maintained a
strict divide between negligence and strict liability concepts. In 7incher, the Supreme Court
expressly overruled Azzarello and, as such, AGCO asserts that the simultaneous submission of a
negligent design theory and a 402A theory is no longer cognizable under the precedent of this
Commonwealth, based upon the Tincher Court’s recognition that “in design cases, the character
of the product and the conduct of the manufacturer are largely inseparable.”** This Court, in
rendcring the at-issue directed verdict, made no determination that the post-Tincher landscape
precluded the simultaneous submission of a negligent design theory and a 402A theory to the
jury, but instead determined that Plaintiff had not met his burden to send the negligent design
theory to the jury.
To establish a claim of negligence, “the plaintiff must show [by a preponderance of the
evidence] that the defendant had a duty ‘to conform to a certain standard of conduct;’ that the
defendant breached that duty; that such breach caused the injury in question; and actual loss or
damage.”° Simply stated, negligence is the absence of ordinary care that a reasonably prudent
person would exercise in the same or similar circumstances.”’ While the basic tenets of a
common law negligence claim — duty, breach, causation, and damages — are mirrored in the
structural underpinnings of a strict liability claim under Section 402A, our jurisprudence is clear
that Plaintiff bears the burden of establishing two separate and distinct claims. Pursuant to
Section 402A,
24391 A.2d 1020 (Pa. 1978).
5 Tincher, 104 A.3d at 405.
26 Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003) (citing Morena v. South Hills Health System, 462
A.2d 680, 684 n. 5 (Pa. 1983)).
27 Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). See also Pa. SSH (Civ) 3.01.
15
cesar Se ite a emma hae
eee eR em I etc de ed eT red ree Sane Reet EGA RPM AP ee
[a] person or entity engaged in the business of selling a product has a duty to
make and/or market the product — which “is expected to and does reach the user
or consumer without substantial change in the condition in which it is sold” — free
from a “defective condition unreasonably dangerous to the consumer or [the
consumer’s] property.””°
However, as stated by our Supreme Court in Tincher, “the duty spoken of in strict liability is
intended to be distinct from the duty of due care in negligence.””” The Court further
explained that while a strict liability action sounds in tort, “the tortious conduct at issue is not the
same as that found in traditional claims of negligence and commonly associated with the more
colloquial notion of ‘fault.”"°" Accordingly, a Plaintiff secking to present both a common law
negligence claim and a claim for strict products liability under Section 402A for the same alleged
design flaw(s) bears the burden of establishing the common law duty and breach separate and
apart from those established pursuant to Section 402A.
In making the determination that Plaintiff failed to establish the necessary elements of a
negligent design claim, this Court examined the testimony of Plaintiff's witness Kevin Sevart,
P.E.. who was presented as an expert in tractor design and safety in occupant presence controls.
In relevant portion, Mr. Sevart’s testimony on direct examination provided the following:
[BY MR. GOODMAN: ]
Q. In this case, we've heard a lot about the starter shield or guard over the
solanoid starter. First of all, was there any guard present when you conducted
your evaluation?
A. No.
Q. Are guards the industry standard that they are to be on the equipment as it is
designed and sold by the manufacturer?
A. There is an industry standard that requires a shield over the starter solanoid and
also kind of a -- a divider between these terminals that I was describing.
Q. If a guard necds to be on over the solanoid, how do these accidents keep
happening?
A. Because there's still people having trouble getting their tractors to start with the
key switch. In all the accidents I've investigated, there was always problems with
28 Tincher v. Omega Flex, Inc., 104 A3d 328, 383 (Pa. 2014) (citing RESTATEMENT (2D) OF ToRTS §402A(1))
29 Tincher v. Omega Flex, Inc., 104 A.3d 328, 383 (Pa. 2014) (emphasis added).
© Tincher v. Omega Flex, inc., 104 A.3d 328, 400 (Pa. 2014).
16
Se Nein ati Spar an et Elen meaty ib sy RR rem FE eae 8 ae Ste
the starting circuitry, but the tractor needed to be used that day. That's why the
bypass start occurred. It's been recognized even in the standard. The only purpose
of the shield is to discourage bypass starting. It's not to eliminate or prevent it. It's
a deterrent, but it's not, you know, the shield can be removed, as it was,
apparently, in this case, it wasn't. I know that. The tractor won't start, so a bypass
start is done.?!
[-..]
[BY MR. GOODMAN:]
Q. Is the removal of the guard something that is foresceable to the industry?
MR. MURTAGH: Objection.
THE COURT: Overruled.
THE WITNESS: Yes, to any engineer that studied these accidents, it's foreseeable
that that guard is going to be removed. Particularly that whole bypass starter came
about because people were having trouble getting tractors to start and that
underlying problem hasn't been addressed. The tractor is still hard to start. So
these issues arise, so it’s necessary to bypass start if you're going to work that
day.**
[.--]
[BY MR. GOODMAN: ]
Q. Mr. Sivart, in connection with this case, were you asked to render your opinion
on whether this tractor, by lacking OPC, is considered defective and not
compliant with -- is considered defective?
A. Yes.
Q. And what is that opinion?
A. That this tractor is defective in design, because it lacks the necessary
mechanism to neutralize the machine when there's no operator present, or an
OPC,
Q. The technology that you suggested, the OPC, was it completely both
technically and economically feasible in 2005 to have installed this?
A. Yes.
Q. Mr. Sivart, have all the opinions that you've given today been to a reasonable
degree of professional engineering certainty?
A. Yes, they are.*?
Mr. Sevart’s testimony on cross-examination by AGCO, in relevant portion, further provided
that:
[BY MR. MURTAUGH:]
Q. So my point is, as of the time you wrote your paper in 2011, Section 318, the
safety for agricultural field equipment, that did not include a requirement that
there be an operator presence system on agricultural utility tractors; correct?
A. That's correct.
UN.T. 6/11/2018 p.m. session at 55-56.
32 NT. 6/11/2018 p.m. session at 58:2-17.
33.N.T. 6/11/2018 p.m. session at 77-78.
17
a ee a aa ep pa | ACA Op a ee es Seva et MANE Sere
Q. You, in the end of your paper, the last sentence in your paper is: Provisions
should be provided in ASAE 318 to require an operator presence control on
agricultural tractors. That was your opinion; right?
A. Yes.
Q. So our tractor here was built in 2005; right?
A, Yes.
Q. This is six years after that. There isn't any requirement for 31 8 to have an OPS
on an agricultural utility tractor; correct?
A. Correct.
Q. And even today, there is no requirement, there is no standard to suggest that
there should be an OPS that shuts off the engine or detaches the drive train from
it?
A. No. There's written standard of care that suggests that that would be the code
of ethics for engineers, but as far as the specific machinery standard like 318, your
statement would be correct.
Q. Am I correct, even today, as | said, there is no standard for use of agricultural
tractors that says you have to have an OPS that shuts off the engine or the
attachment to the drive train. We're together now; right?
A. If you put that in quotes, that statement, that would be correct. I'm saying that
the written standard of expected care would imply that, based on al! these
accidents we just went over.
Q. What you're trying to say to the jury, there's a code of ethics for engineers that
doesn't say anything about 318 or agricultural tractors. Simply said, you had to
make things safe essentially; right?
A. That's the engineer's paramount responsibility, is the safety of the public that's
exposed to the machine,
Q. But you don't have any problem with my question, which is about the standard
that actually applies to what is required on an agricultural utility tractor; correct?
A. Correct. { agree that that's not in that standard. That's why I'm still pressing this
agency to incorporate that.*4
The entire body of Mr. Sevart’s testimony concerning the guard and the OPC feature was
directed toward establishing Plaintiff's products liability claim under Section 402A In
Plaintiff's final four questions to the witness in which he sought Mr. Sevart’s expert opinion, he
clicited the testimony that the tractor was defective “because it lacks the necessary mechanism to
neutralize the machine when there's no operator present, or an OPC.” This testimony goes to the
heart of Plaintiffs products liability claim, but does not simultaneously establish the requisite
elements of a negligence claim, as Plaintiff failed to set forth how AGCO, an agricultural tractor
NT. 6/11/2018 p.m. session at 89-92,
18
URS am nS tain pS mane ee Santen orate! Bes tei acon AM ery Ege 8 ue ore ae ee
manufacturer, failed to conform to a certain standard of conduct. Indeed, on cross examination,
Plaintiffs expert conceded that no “duty” existed under a negligence theory.
The failure of Plaintiff to marshal sufficient evidence to support a negligence claim
against AGCO is made clear by the record given that the phrase “standard of care” is entirely
absent from Mr. Sevart’s testimony on direct examination, Moreover, on cross-examination by
AGCO, Mr. Sevart conceded that AGCO had not breached any technical, manufacturing or
industry standards. Mr. Sevart’s reference to an engineer’s general responsibility to make a
machine “safe” does not satisfy the Plaintiff's burden of proof under a negligence theory. In
rejecting Plaintiffs argument at trial that he had established the necessary elements of breach
and duty for a negligence claim, this Court stated:
You have to have an expert that testifies as to duty. And just parroting
back to me the law is not establishing duty. This is not just -- it's a manufacturer.
It's an agricultural industrial equipment. And your expert has to set forth the
standard of care and they didn't. I sat through this testimony. ‘The case went in as
a 402A products liability claim against AGCO for that purpose on that issue.
There was no other testimony from Mr. S[e]vart. All your individual
people cannot set forth the standard of care for the manufacturer. Maybe for MM
Weaver, and maybe for Mr. Fowler's clients. But not for AGCO. The only person
who could set forth duty is your expert. And all I heard your expert talk about was
the issues about the seat. And never used the words they were negligent because
they didn't put this on. Not once. Not once did he ever use that word,
He never said what the standard of care was. And that's why the Court is
granting negligence against AGCO, because quite frankly, it came as quite a
surprise to the Court that you were even moving on a negligence claim against
AGCO because that’s just not the way the case was tried.**
This Court further clarified that the directed verdict on Plaintiffs negligent design claim was
independent of Plaintiff proceeding on his products liability claim under Scction 402A and
emphasized that the duty required in a negligence action is distinct from that of a products
liability claim and must be separately established. Specifically, this Court stated:
33.N,T. 6/18/2018 p.m. at 33-34,
19
Ia ey PAA Steere cherie ore RM fea tee eet Fm PRA et ep BE ai ae Re a,
The only way you can possibly do that is there are two very distinct legal theories
like they violated an ANSI standard or government regulations. Then it's the duty.
But you cannot just use the same expert to show design defect and say it covers it
all. Negligence is a separate claim under the law and you have to say what the
duty is and it has to be sct forth somewhere. I'm not saying that you can't go
forward on cither one, but they are separate claims and your expert has to have a
separate theory and right now I'm hearing the same expert opinion, same exact
words can be used under either theory. I don't think that's the law[.]*°
Plaintiff attempts to cure the defects in his expert’s testimony by pointing to the
testimony from AGCO’s witnesses as establishing the required standard of care in the case.
Assuming arguendo that Plaintiff could properly rely on his opponent's experts to establish the
clement of duty, his negligence claim still could not be submitted to the jury because there
remained no evidence that AGCO violated or breached the standard of care owed. Indeed,
Plaintiff’ s expert on cross-examination conceded that AGCO had not breached any specific
standard of care in place at the time the tractor at issue was manufactured.”
2. The trial court properly limited the cross-examination of Defendant
AGCO’s expert witness
Plaintiff next asserts that it was improper for this Court to preclude Plaintiff from cross-
examining AGCO’s expert witness David L. Murray, and similarly AGCO’s expert witness Kirk
Ney, with the hearsay opinions contained within the expert reports of co-defendant MM
Weaver’s expert (supporting of MM Weaver’s cross claim against AGCO), where such experts
were not called at trial and MM Weaver did not pursue its cross claim against AGCO.*®
This Court first addressed the reports of MM Weaver’s experts, Mark Ezra, P.E. and John
F. Huffman, P.E. (“Ezra and Huffman”), prior to trial in the disposition of Plaintiffs Motion in
60 N_T. 6/18/2018 a.m. at 35-36.
37 'N.T. 6/11/2018 p.m. session at 89-92.
38 °s experts, Mark Ezra, P.E. and John F. Huffman, P.E. PMP. (“Ezra & Huffman”), who were MM Weaver's
retained
20
ee
Limine at Control No. 18052312. In said Motion, Plaintiff sought to preclude MM Weaver from
offering a liability defense at trial based upon the allegation that MM Weaver “concedes in its
[e]xpert [rleport of [Ezra & Huffman] that the subject [t]ractor was dangerously defective and
that the defect was causative of [Plaintiff]’s severe injuries.”?? On June 4, 2018, this Court
docketed an Order denying the Motion based on the tenet that MM Weaver retained the ability to
determine its defense at trial and to determine whether it would proceed on its cross-claim
against AGCO, Whether MM Weaver would or would not use certain legal theories at trial were
properly reserved for trial.”°
At trial, MM Weaver elected not to pursue its cross-claims against AGCO and
consequently AGCO did not present experts Ezra and Huffman. AGCO presented David L.
Murray as an expert in tractor and agricultural design and safety.*' In its direct examination of
Mr. Murray, AGCO made no mention of the reports of Ezra and Hutfman. However, on cross-
examination, Plaintiff repeatedly attempted to introduce the opinions of Ezra and Huffman. This
Court sustained all objections to this line of questioning as an improper attempt to circumvent
this Court’s pre-trial rulings and as an overly prejudicial introduction of hearsay. Further, the
controlling caselaw of this Commonwealth prevents a party from introducing the opinions
contained within the reports of an opponent’s non-testifying witnesses. For ease on review, the
full transcript of the questioning and objections provides:
[BY MR. GOODMAN: ]
Q. Now, for example, when Mr. Sevart rendered his, gave his report, he got that,
you reviewed it, right?
A. That's correct.
3° Motion in Limine of Plaintiff at Contro] No. 18052312 at No. 18.
49 See also Wilkerson v. Allied Van Lines, 521 A.2d 25 (Pa. Super. 1987) (concluding expert report provided in
response to interrogatory requesting such report was not admission).
41 Although unrelated to the instant issue concerning the Ezra and Huffman report and Mr. Murray’s testimony as an
expert, this Court notes that Mr. Murray also provided testimony as a fact witness concerning his direct involvement
in the instant matter.
21
Te ie eee ee
eR a ae a ele eee ger mmm se te, eR ee KT Sac OPM coer.
Q. You told us earlier you considered it, right?
A. That's correct.
Q. And if there was something in there that you looked at and you said, you
know, he makes a pretty good point here, am I correct that as the safety director,
as the safety engineer for AGCO, you would at least follow up, be it test it or pass
it along or discuss it, right, if that happened? I'm not suggesting you did. I realize
you disagree with his findings.
A. As a hypothetical, yes.
Q. You understand as an engineer, safety of your products comes first, right?
A. Safety is important. Reduces risks on our products to acceptable level for
intended uses is very important for us, yes.
Q. My question is: As an engineer, the safety of your products comes first? Is that
a yes?
A. It's -- yes.
Q. As part we mentioned that you had reviewed Mr. Sevart's report and you
mentioned a couple of times during your examination the testimony of Mr. Miller,
Charlie Miller from Mississippi, who came in and explained some stuff to us, Did
you review Mr. Miller's reports, as well?
A, Yes.
Q. Did you review the reports that were provided on behalf of other defendants in
this case?
A. Yes.
Q. Did you review the report provided by Mr. Ney on behalf of AGCO?
A. Yes,
Q. You mentioned that you reviewed the other liability-related reports in this
case. Did you review the -- when I say review, everything you reviewed you
considered, right?
A. Yes.
Q. Did you review the report from Mr, Huffman and Mr, Ezra submitted on
behalf of M.M. Weaver?
MR, DEMARCO: Objection.
THE COURT: Sustained.
MR. GOODMAN: May we be heard on this issue.
THE COURT: Didn't I already issue a ruling on it?
MR. GOODMAN: There has not been a ruling.
THE COURT: If it's something I changed my mind on, you can cover it in
recross.
BY MR. GOODMAN:
Q. Did you review any reports, other than Mr. Sevart, which discuss -- I'm not
going to get intowhat they say -- which discuss occupant presence controls?
MR. DEMARCO: Same objection. Simply a different way of phrasing
something.
THE COURT: No. Did he review any other reports; yes or no?
BY MR. GOODMAN:
Q. Regarding OPC.
A. I saw the report.
22
edits a
he a ao as ee
ot be te ra eo Te et pk ee me To stage tree MN aD PATTEM
Q. As an engineer, am | correct as a safety director, that if someone comes forth,
other than Mr. Sevart, and said OPC was necessary technology that rendered your
product defective, that is something you would consider, right?
A. I would consider that on its merits.
Q. What do you mean you would consider it on its merits?
A. Well, on the merits of the report on what it was based on.
Q. Sir, would you consider what your dealer had to say about whether they
thought OPC was necessary technology and the lack of it rendered your product
defective, would you consider what your dealer had to say about that?
MR. DEMARCO: Same objection.
MR. MURTAGH: Objection.
MR. DEMARCO: First of all, the dealer hasn't said anything about OPC.
THE COURT: | made pretrial rulings on what could or could not be admissible.
We are not going to go over that again. If that's violated, then everyone knows
what will happen. The objection is sustained.
MR. GOODMAN: There was no --
THE COURT: Sustained. Why don't you guys talk so that -- Mr. DeMarco tell
Mr. Goodman why you're making the objection so he will understand so maybe
he can rephrase the question and then take away the objection. Make sure he
understands.
MR. DEMARCO: I'm pretty sure Mr. Goodman understands.
MR. GOODMAN: There was no pretrial ruling at all.
THE COURT: Yes, there was. There was.
BY MR. GOODMAN:
Q. Sir, is the report of Mr. Huffman and Mr. Ezra something that you considered
and relied upon in this case?
THE COURT: Sustained. I don't think that either one of those people are
testifying. Am I right?
MR. DEMARCO: They're not.
MR. GOODMAN: Every expert has been permitted to discuss what they
reviewed.
THE COURT: No, Mr. Goodman. The rules on this are very clear. And those
people, they're not -- just explain to my jury. Remember I told you when people
don't come in and they're not going to be here and we already have been told they
are not coming, it's not that anybody is hiding information from you. But people
can't get in information through a witness that they couldn't get it in any other
way. Kind of like I didn't let Mr. Murtagh have him testify to things. You can't
bring in certain things. And I'm just explaining to my jury they are not coming in
and you're not going to hear about them and you're not going to hear about them
through anybody else either. Because those are the rules. You can move along
from that.”
42N_T. 6/13/2018 p.m. at 67-72.
23
Sor a Soin andi ated ae agli Se hated a ENA See a a ae
BY MR. GOODMAN:
Q. In your industry, am I correct that Mr. Sevart is not the only one that has been
advocating for OPCs for decades?
A. I don't have a name to give you. I assume that's correct, yes.
Q. You don't have a name to give me. Do you have two names?
A. Excuse me?
MR. MURTAGH: Objection.
THE COURT: Does he know any names, is that what you're asking?
MR. GOODMAN: He said a name. I'm wondering if there is two,
THE COURT: Or three or five. Is there a significance about the number?
THE WITNESS: So | do remember a report by Mr. Sevart or his father and one
of] their colleagues, if I remember right, if that's correct.
BY MR. GOODMAN:
Q. And you know there has been reports from people other than Mr. Sevart and
his colleagues, right, discussing OPC --
THE COURT: Here's what I will say, I made pretrial rulings in this matter. |
think Mr. Goodman keeps trying to get something to come in —
MR. GOODMAN: There was no ruling --
MR. MURTAGH: I'm saying objection —
THE COURT: Let me give my jury a break so I can possibly reprimand Mr.
Goodman.”
Following the testimony of Mr. Murray, AGCO presented Kirk Ney as an expert in accident
reconstruction and investigation. Akin to the cross-examination of Mr. Murray, Plaintiff
properly questioned Mr. Ney as to whether he had been provided with the reports of other
testifying witnesses; however, Plaintiff's questioning again overstepped the rulings of this Court
as well as the controlling caselaw of this Commonwealth when Mr. Ney was asked about “any
other reports” pertaining to the issue of liability, which implicated the opinions of co-defendant’s
non-testifying witnesses. The relevant portion of the transcript provides:
[BY MR. GOODMAN:}
Q. Mr. Sevart and his father are not the only people that have advocated for
occupant presence] controls over the years, are they?
A. The only ones or his office that I know of. I haven't heard of anybody else.
Q. Are you aware, sir, of anyone else who has specifically for the Massey
Ferguson 451 said that that product needs an occupant presence control and
without it it's defective?
A. Other than Kevin Sevart?
Q. Yes.
48.N_T. 6/13/2018 p.m. at 73-74.
24
fee nie is ae Rui or cea A Di Sere eam Fee ote
A. No.
MR. GOODMAN: May we approach, Your Honor?
THE COURT: No. You cannot.
BY MR. GOODMAN:
Q. Sir, you described for us the material that you reviewed in connection with this
case. Was all the material that you reviewed supplied to you by counsel for
AGCO?
A. Yes.
Q. Maybe you didn't research it, the standards on your own beyond that or your
own knowledge, I'm guessing?
A. I have standards, also, and certainly knowledge of the industry and what have
you, But the actual documents like depositions were provided by Mr, Murtagh.
Q. Mr. Murtagh provided you with the expert reports from the plaintiff for Mr.
Sevart and from Mr. Miller, right?
A. Yes.
Q. Did he provide you with any other reports as they pertained to liability in this
case?
A. May I look at my —
THE COURT: The objection is sustained. Whoever testifies in this case is who
the jury is to and whether there was other reports produced or not produced is not
relevant for this jury. Do you understand? Doesn't matter whether -- because you
heard this case has been going on -- what year did it get filed? You guys heard
there were two years of things that they passed back and forth and reports and
discovery and documents. I bet you if] looked in those files -- how many boxes
did everybody bring over here? We are not going to ask. It only matters to the
jury what is being testified to by the jury those people who I have said may
provide opinion testimony to you today and on the other days that we have sat. So
whether there were other reports or other documents or whatever else is in those
boxes of documents, is just not relevant for the jury's consideration in this case.
And that is my ruling.“
The proffered opinions contained within the report of a co-defendant’s non-testifying
witness were hearsay, more prejudicial than probative, and Plaintiff has not cited to any hearsay
exception that would allow such opinions to be used to impeach AGCO’s expert. Moreover, the
courts of this Commonwealth have continued to adhere to the longstanding precedent, set forth
in Pennsylvania Company for Insurances on Lives and Granting Annuities v. Philadelphia®,
which holds that an opponent’s non-testifying experts cannot be compelled to provide opinion
44 NT. 6/14/2018 p.m. at 112-115.
43.105 A. 630 (Pa. 1918).
25
i i ee ee ee Ee eR WR FBT ee
testimony involuntarily.** It is the general principle in this Commonwealth that a witness cannot
be compelled to give expert opinion testimony against his will.*” Specifically, the Court stated:
The process of the courts may always be invoked to require witnesses to appear
and testify to any facts within their knowledge; but no private litigant has a right
to ask them to go beyond that. [. . .] [T]he private litigant has no more right to
compel a citizen to give up the product of his brain than he has to compel the
giving up of material things. In each case it is a matter of bargain, which, as ever,
it takes two to make, and to make unconstrained.”
Plaintiff has attempted to circumvent this precedent by likening the instant circumstances to
those in Boucher v, Pennsylvania Hospital”, wherein our Superior Court established a very
limited exception to the general prohibition against compelling an expert witness to provide
opinion testimony against his will. The nature of the testimony and the relationship between the
parties renders the Boucher exception inapplicable to the instant case.
In Boucher, Plaintiffs alleged that employees of Pennsylvania Hospital negligently
caused or failed to prevent a traumatic injury to the minor Plaintiff in the hours after she was
born. Pennsylvania Hospital presented the expert testimony of Dr. Robert Stavis, who testified,
in relevant portion, that there was no evidence of traumatic injury to the minor Plaintiff in “any
of the records, films, or reports” and further testified that there was no evidence of
cephalohematoma.*° Plaintiff sought to cross-examine Dr. Stavis with the report of Dr. Orest
Boyko, another Pennsylvania Hospital expert who was not called to testify at trial. Dr. Boyko’s
report “stated that there was evidence of ‘resolving cephalohematoma’” and Dr. Stavis testified
46 Pennsylvania Company for Insurances on Lives and Granting Annuities, 105 A. at 630.
47 Pennsylvania Company for Insurances on Lives and Granting Annuities, 105 A. at 630; see Evans v. Otis Elevator
Co., 168 A.2d 573 (Pa. 1961); Spino v. John S. Tilley Ladder Co., 671 A.2d 726 (Pa. Super. 1996); Columbia Gas
Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Cmwlth. Ct.1992); Jistarri v. Nappi, 549 A.2d 210 (Pa. Super.
1988); see also Boucher y. Pennsylvania Hosp., 831 A.2d 623, 626 (Pa. Super. 2003) (affirming general principle
and establishing limited exception).
48 Pennsylvania Company for Insurances on Lives and Granting Annuities, 105 A. at 630.
49 831 A.2d 623 (Pa. Super. 2003).
Boucher, 831 A.2d at 629-30.
26
ate oe aR a A RPE RD oon nde Re Si CI RR ae fi the OR BR UR ee
to having reviewed Dr. Boyko’s report.°’ As such, Plaintiff sought to use Dr. Boyko’s report to
challenge Dr. Stavis’ credibility and his testimony that none of the records or reports he reviewed
supported the presence of cephalohematoma.”” The trial court precluded the cross-examination
with Dr. Boyko’s report and, following a defense verdict, Plaintiffs appealed.
On review, the Superior Court reaffirmed the longstanding precedent of the courts,
stating “[w]e are mindful of the rule expressed and applied by the courts of this Commonwealth
that one party may not compel an expert for the opposing party to divulge his expert opinion.”**
However, the Court determined that the general rule docs not preclude the use of an expert report
in one limited circumstance and the Court neatly carved out the following exception:
Where an expert report is disclosed to another expert and reviewed by that expert,
and then by his testimony the expert mischaracterizes that report, either explicitly
or by implication, we conclude that basic fairness and the entitlements of cross-
examination permit the disclosure of that report to the degree necessary to expose
the mischaracterization by the testifying expert. In such circumstances, the report,
or portion thereof, is not admitted as substantive evidence, as we note below, and
thus ils use, we find, is not barred by the rule expressed above in Spino and
Columbia Gas.*4
In the instant matter, Plaintiff sought to have the Boucher exception applied to the cross-
examination of Mr, Murray and Mr. Ney; however, such exception is not applicable based on
significant distinctions between the circumstances of this case and those in Boucher, set forth as
follows:
First, the most glaring difference between Boucher and the case at bar is that Boucher
allowed the cross-examination of an expert with the report of a non-testifying expert for the
same party, not a co-defendant as was the case here. Here, Plaintiff was attempting to use the
5! Boucher, 831 A.2d at 629-30.
32 Boucher, 831 A.2d at 631.
53 Boucher, 831 A2d at 632.
4 Boucher, 831 A.2d at 632.
27
Sg yd kainic toe lr eee ea IN carte ne pt Ba ee eR Pee oe
report of MM Weaver’s non-testifying experts to cross-examine AGCO’s expert witnesses and,
thus, this Court properly sustained the objections.
Second, the expert opinion at issue in Boucher revolved around medical diagnoses.
Medical experts opining on medical treatment and diagnoses routinely rely upon the facts and
data contained within the opinions of other medical experts in reaching their own opinions.
Accordingly, medical experts are allowed to provide the jury with hearsay testimony regarding
facts or data used in reaching their opinions on both direct and cross-cxamination in accordance
with Pennsylvania Rule of Evidence 703. Further, it is well established in our case law that
medical experts “are permitted to express opinions which are based, in part, upon reports which
are not in evidence, but which are customarily relied upon by experts in the practice of the
profession.”®> While Plaintiff has attempted to benefit from this precedent by only citing the
portions of Collins v. Cooper and Primavera v. Celotex Corp”’ that use the term “expert”, it is
clear that these cases involve the discussion of medical experts only. The experts at issuc in the
instant matter were not medical experts, but rather experts in engineering. The hearsay
testimony Plaintiff sought to introduce was not “facts and data” supporting the opinions of an
expert, but rather was solely an opinion of a non-testifying expert supporting an abandoned
cross-claim against AGCO. This is unlike the circumstances in Boucher where Plaintiff sought
to use Dr. Boyko’s report on cross-examination solely to impeach Dr. Stavis regarding the
existence of cephalohematoma, an important fact in the Boucher case, not an opinion on the
ultimate issue of negligence.”*
55 Primavera v. Celotex Corp., 608 A.2d 515, 518 (Pa. Super. 1992),
°° Collins v. Cooper, 746 A.2d 615 (Pa. Super. 2000).
57 Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992).
58 Plaintiff's Motion in Limine at Control No. 18052312 sought to classify the Ezra & Huffman report as an
admission, and therefore an exception to the rule against hearsay, by alleging that MM Weaver “concedes in its
[e]xpert [r]eport of [Ezra & Huffman] that the subject [t}ractor was dangerously defective and that the defect was
causative of [Plaintiff]’s severe injuries.” This Court did not agree denied the Motion, as discussed above. See
28
ET erties ce mie aati crore ae ere et Be TR a eee Snes aMrRaae
Third, unlike Boucher, the at-issue hearsay that Plaintiff sought to put in front of the jury
was of low probative value and was highly prejudicial to AGCO. Its admission would have been
tantamount to forcing MM Weaver to pursue a cross-claim that it had chosen to forego and/or
tantamount to forcing AGCO to defend MM Weaver’s unpursued cross-claim.
Moreover, assuming arguendo that the preclusion of the opinions was error, such error
was harmless given that Plaintiff was able to impeach Mr. Murray and Mr. Ney regarding the
existence of other reports addressing liability and the necessity of occupant presence controls
(“OPC”). Plaintiff was merely constrained from using the ultimate opinions of the Ezra and
Huffman report.*° Accordingly, given the nature of the testimony and the posture of the parties,
this Court properly limited the cross-examination of AGCO’s expert witnesses.
3. The trial court properly instructed the jury regarding the elements of a
products liability claim
Plaintiff next avers that this Court improperly instructed the jury concerning the elements
of a products liability claim in this Commonwealth. This Court disagrees. Our jurisprudence
affirms that the trial court’s objective in instructing the jury is “to explain to the jury how it
should approach its task and the factors it should consider in reaching its verdict.” In drafting a
comprehensive set of instructions, the court has broad discretion in its phrasing, provided that
“the law is clearly, adequately, and accurately presented to the jury for its consideration.”*!
Wilkerson v. Allied Van Lines, 521 A.2d 25 (Pa. Super. 1987) (concluding expert report provided in response to
interrogatory requesting such report was not admission).
59 See also Comm. v. Harris, 106 A.3d 183 (Pa. Cmwlth. Ct. 2014) (distinguishing case from Boucher and
precluding cross-examination of Commonwealth’s accident reconstruction expert and police officer witness with
police accident report).
6 Com. v. Chambers, 980 A.2d 35, 49 (Pa. 2009) (citing Com. v. Hartman, 638 A.2d 968, 971 (Pa. 1994)).
&! Com. v. Sepulveda, 55 A.3d 1108, 1141] (Pa, 2012); see also Marsico v. DiBileo, 796 A.2d 997, 1000 (Pa. Super.
2002) (providing that “a trial judge has wide latitude in his or her choice of language when charging a jury, provided
always that the court fully and adequately conveys the applicable law.”).
29
me TAMU te ae ry iru POM ee REE ren ee ee ON EO
Upon review, the court’s instruction must be viewed in its entirety when assessing whether
prejudicial error resulted, as isolated inaccuracies will not warrant post trial relief. 62 Our
Supreme Court has consistently held that a trial judge’s instruction to the jury will be deemed
adequate “unless the issues are not made clear, the jury was misled by the instructions, or there
was an omission from the charge amounting to a fundamental error.”® Further, any challenge to
the trial judge’s instructions must properly preserved. The mere filing of a proposed instruction
to the docket along with the subsequent raising of the issue by post-trial motion is not sufficient
to secure appellate review.“ As stated by Our Supreme Court in Jones v. ou?
[t]aken together, our rules of civil and appellate procedure, and our longstanding
principles of preservation and waiver, dictate that, while a jury-charge challenge
can be preserved under Pa.R.C.P. 227.1 by making proposed instructions part of
the record and by raising the issue in a post-trial motion, the challenge is waived
when the appellant fails to secure a record ruling from the trial court upon the
proposed charge.
In the instant case, Plaintiff makes a claim of error with regard to the strict product
liability standard and the risk-utility standard, as provided by this Court in its instructions to the
jury. Plaintiff's claim is without merit, as this Court’s instructions were properly guided by the
parameters set forth in the Restatement (Second) of Torts § 402A and our Supreme Court’s
decision in Tincher v, Omega Flex, Inc.®’
Scction 402A of the Second Restatement 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
8 Wilkerson v. Allied Van Lines, Inc., 521 A.2d 25, 32 (Pa. Super. 1987).
8 Com. v. Chambers, 980 A.2d 35, 50 (Pa. 2009) (citing Von der Heide v. Com., Dep't of Transp., 718 A.2d 286,
288 (Pa. 1998)).
4 Jones v. Ott, 191 A.3d 782, 788-89 (Pa. 2018).
6519] A.3d 782 (Pa. 2018).
6 Jones v. Ott, 191 A.3d 782, 788 (Pa. 2618).
87 104 A.3d 328 (Pa. 2014).
30
wee Te a eee atin vp ers tea amr Te Ne ee ar sectarian Ron ie ape Steer na oe ge hae
(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 entcred into
any contractual relation with the seller.
The treatment of the principles encompassed within the phrase “defective condition
unreasonably dangerous” was central to the Tincher Court's analysis of products liability
jurisprudence, its express overruling the Azzarello v, Black Bros. Co. 6 precedent, and its
decision not to adopt the standard set forth in the Third Restatement of Torts.
Prior to Tincher, the dispositive question in a strict products liability action was whether
the product was safe for its intended use and the existing precedent emphasized that the seller
was the guarantor of the product.”” As set forth by the Azzarello Court:
[t]he (supplier) of a product is the guarantor of its safety, The product must,
therefore, be provided with every element necessary to make it safe for (its
intended) use, and without any condition that makes it unsafe for (its intended)
usc. If you find that 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 (its intended) use, then the product was
defective, and the defendant is liable for all harm caused by such defect.”
Moreover, the Azzarello Court determined that:
the phrases “defective condition” and “unreasonably dangerous” as used in the
Restatement formulation are terms of art invoked when Strict liability is
appropriate. It is a judicial function to decide whether, under plaintiff's averment
of the facts, recovery would be justified; and only after this judicial determination
is made is the cause submitted to the jury to determine whether the facts of the
case support the averments of the complaint. They do not fall within the orbit of a
factual dispute which is properly assigned to the jury for resolution, A standard
suggesting the existence of a “defect” if the article is unreasonably dangerous or
not duly safe is inadequate to guide a Jay jury in resolving these questions.”
& Restatement (Second) of Torts § 402A (1965).
& 39] A.2d 1020 (Pa. 1978).
® Tincher v. Omega Flex, Inc., 104 A.3d 328, 367 (Pa. 2014).
| Azzarello v. Black Bros. Co., 391 A.2d 1020, 1027 n.12 (Pa. 1978) (quoting Pennsylvania Standard Jury
Instruction 8.02 (Civil), Subcommittee Draft (June 6, 1976).
? Azzarello v. Black Bros. Co., 39) A.2d 1020, 1026 (Pa. 1978). In its discussion of the products liability
jurisprudence of this Commonwealth, the Tincher Court succinctly summarized that the Azzarello Court had found
31
oR rg agement tm ee ee Em NAS oy Ara QS ry eae EE Tes OTe
In overruling Azzarello, the Tincher Court rejected the characterization of the Second
Restatement as a predictor of responsibility not to be utilized in providing instruction to the
jury.” The Tincher Court, in returning the assessment of whether a product is “unreasonably
dangerous” to the jury, determined that:
the notion that a legal inquiry into “whether that condition justifies placing
liability upon the supplier” (product is unreasonably dangerous) is, albeit
distinguishable, entirely separable from a factual inquiry into the predicate
“eondition of a product” (defective condition of product) when determining
whether to affix liability upon a supplier is incompatible with basic principles of
strict liability. Thus, in a jurisdiction following the Second Restatement
formulation of strict liability in tort, the critical inquiry in affixing liability is
whether a product is “defective”; in the context of a strict liability claim, whether
a product is defective depends upon whether that product is “unreasonably
dangerous.””*
Having acknowledged the shortcomings of the existing Azzarello standard of proof and having
found such standard to be unsustainable, the Tincher Court examined the utility of the consumer
expectations standard as well as the risk-utility standard. Under the consumer expectations test,
a “defective condition” is defined as “a condition, upon normal use, dangerous beyond the
reasonable consumer’s contemplations.””> A product is in a defective condition if the danger is
unknowable and unacceptable to the average or ordinary consumer.”® By contrast, the risk-utility
test offers a cost-benefit analysis wherein a product is in a defective condition if a reasonable
person would conclude that the probability and seriousness of harm caused by the product
that “the best means to implement the principles of the Second Restatement was to direct: (1) that the phrases
“defective condition” and “unreasonably dangerous,” which predict whether recovery would be justified, are issues
of law and policy entrusted solely for decision to the trial court; and (2) that the inquiry into whether a plaintiff has
proven the factual allegations in the complaint is a question for the jury.” Tincher v. Omega F. flex, Ine., 104 A.3d
328, 367 (Pa. 2014).
® Tincher v. Omega Flex, inc., 104 A.3d 328, 399-408 (Pa. 2014).
% Tincher v. Omega Flex, inc., 104 A.3d 328, 380 (Pa. 2014).
% Tincher v. Omega Flex, inc., 104 A.3d 328, 387 (Pa. 2014).
% Tincher v. Omega Flex, Inc., (04 A.3d 328, 387 (Pa. 2014).
32
eA neamati, reawtet lait ning tae We Pe armed eh ess cere sn ape antral ORAS eS Fe
outweigh the burden or costs of taking precautions. The factors relevant to such assessment
include:
(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 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 availability, because of general public knowledge of the obvious condition of
the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by
setting the price of the product or carrying liability insurance.””
Mindful of the limitations and policy concerns associated with of each of these tests, the Tincher
Court declined to affirmatively adopt one or the other and, instead, determined that a composite
standard would provide the appropriate standard of proof in a claim of strict product liability as it
“retains the best functioning features of each test, when applied in the appropriate factual
context.””® Specifically, Tincher held that:
a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that
the product is in a “defective condition.” The plaintiff may prove defective
condition by showing either that (1) the danger is unknowable and unacceptable
to the average or ordinary consumer, or that (2) a reasonable person would
conclude that the probability and seriousness of harm caused by the product
outweigh the burden or costs of taking precautions. The burden of production and
persuasion is by a preponderance of the evidence.”
In setting forth this new adaptable standard, the Court acknowledged the complex nature
of strict products liability actions and determined that our jurisprudence must develop from the
7 Tincher v. Omega Flex, inc., 104 A.3d 328, 389-90 (Pa. 2014).
® Tincher v. Omega Flex, Inc., 104 A.3d 328, 401 (Pa. 2014).
Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014).
33
peg At Le Pie stad crcl Ae EN CASO OR Se a a Ate” . aoe SSys oie
factual circumstances presented on a case by case basis rather than from a bright line rule.®° The
Court concluded that “it is incumbent upon the parties, through their attorneys, to aid courts im
narrowing issues and formulating appropriate instructions to guide juries in their factual
determinations....’*! In the course of formulating the appropriate instructions for the jury on
products liability claims, the trial court has two critical roles: first, the trial court must act as the
gatekeeper to ensure that the each theory presented to the jury - whether it be consumer
expectations, risk-utility, or both — are warranted by the evidence presented at trial.** Second,
the court must clearly explain the meaning of ‘defective condition’ as relevant to the applicable
facts and within the boundaries of Section 402A of the Second Restatement and controlling
caselaw.*?
In the instant matter, Plaintiff avers that this Court improperly rejected his proposed
instruction on strict products liability and further avers that this Court omitted factors that a jury
should consider in conducting the risk-utility analysis of defect, as set forth in Tincher.* This
Court disagrees, as this Court properly instructed the jury in accordance with Tincher and
Section 402A of the Second Restatement.
Plaintiff's first claim of error regarding the jury instruction on strict products liability is
frivolous, as Plaintiff’s proposed instruction set forth the language of the Azzare//o standard
which was patently overruled by the Tincher Court. Plaintiff provided the following proposed
instruction:
8 Tincher v. Omega Flex, Inc., 104 A.3d 328, 406 (Pa. 2014).
8! Tincher v, Omega Flex, Inc., 104 A.3d 328, 406 (Pa. 2014).
82 Tincher v. Omega Flex, Inc., 104 A.3d 328, 406-407 (Pa. 2014).
3 Fincher v. Omega Flex, Inc., 104 A.3d 328, 408 (Pa. 2014).
* Plaintiff also included the text of his proposed charges on defective condition, specifically concerning the
consumer expectations standard and the hindsight test during risk benefit analysis, however, such instructions were
not addressed in Plaintiff's argument and the content of these instructions was provided to the jury in the Court's
charge. Accordingly, this Court need not address them in the instant Opinion.
34
Sep come dak rat, Be age ete ge aerial ede fe the tL eT te ay Pe a a TUT Ten CE mR A re TS ES GET
STRICT PRODUCT LIABILITY
A product is defective it [does] not contain each and every element necessary to
make it safe for its intended use. This determination is made at the time the
product is manufactured and initially sold, which, in this case, is in the 2005-2006
timeframe.
This Court properly declined to provide the jury with this misstatement of the law. Instead, this
Court instructed the jury as follows:
Plaintiff claims liability under a products liability theory that he was harmed by
the tractor at issue which was designed and manufactured by [AGCO] and
originally sold by M.M. Weaver in 2005 and then resold by M.M. Weaver in
2008. Under this legal theory of products liability, liability is imposed on the
manufacturer who places a product into the market in a defective condition
unreasonably dangerous to users of the product. Such defendant is liable for
physical harm to the user of the product caused by a defective condition in the
product if the defendant is engaged in the selling or manufacturing of the product
at issue and the product is expected to and does reach the user without substantial
change in the condition of the product. Under the law, a defendant such as AGCO
who designs and manufactures a defective product is strictly liable for their
injuries caused by such defect even if the manufacturer has taken all possible care
in the design and manufacture of the product.is imposed on the manufacturer who
places a product into the market in a defective condition unreasonably dangerous
to users of the product. Such defendant is liable for physical harm to the user of
the product caused by a defective condition in the product if the defendant is
engaged in the selling or manufacturing of the product at issue and the product is
expected to and does reach the user without substantial change in the condition of
the product. Under the law, a defendant such as AGCO who designs and
manufactures a defective product is strictly liable for their injuries caused by such
defect even if the manufacturer has taken all possible care in the design and
manufacture of the product.*
This Court’s instruction properly conveyed the principles of Section 402A of the Second
Restatement and omitted any language harkening back to Azzarello wherein the supplier of a
product was the guarantor of its safety.**
®N.T. 6/19/2088 at 197-198.
8 Ag stated by our Superior Court in Tincher v. Omega Flex, Inc. 180 A.3d 386 (Pa. Super 2018) (“Tincher IT”):
The charge thus contained all of the product liability law under Azzare/lo that the Supreme Court
has now disapproved, including a definition equating a defective product with one that “leaves the
suppliers’ control lacking any element necessary t make it safe for its intended use,” and a
35
Date ai Ppl Sale nay oe et rm CIPS: aT eT aa Ee ea ee NR Ree resis ieaentr ps Tap hameage fgets eemvesa igi spank aig!
Plaintiff's next claim of error, concerning the factors provided to the jury for
consideration in a risk-utility theory of defect, also lacks merit. The Tincher Court provided a
lengthy discussion of the risk-utility theory of defect, as discussed above, and observed that other
jurisdictions have relied upon the scholarly works of Dean Wade articulating seven factors
“relevant to the manufacturer’s risk-utility calculus implicated in manufacturing or designing a
product.”*” The Court, however, did not affirmatively adopt these factors and further noted that
“while these considerations may provide a holistic perspective on a manufacturer’s choice to
bring a product to market, they may not be immediately responsive in the (typical) case
implicating allegations relating to a particular design feature.”** As discussed above, the Court
declined to adopt a bright line rule and contemplated the consumer expectations standard and the
risk utility standard as “comprehensive guidelines that are sufficiently malleable to account for
product diversity and a variety of legal claims, products, and applications of theory." The
ultimate task of the trial court is to clearly explain the meaning of ‘defective condition’ as
relevant to the applicable facts and within the boundaries of Section 402A of the Second
Restatement and controlling casclaw.”°
In explaining the concept of “defect” under a risk-utility theory, this Court instructed the
jury that:
Plaintiff must prove by a preponderance of the evidence that the product at issue
was defective at the time it left AGCO's control in 2005, and such defective
condition of the product was a legal, that is, factual cause, of Mr. Timmonds'
harm.
Now, Defendant AGCO denies that the at-issue tractor was in a defective
condition unreasonably dangerous to the users of such tractor. Defendant AGCO
declaration that a manufacturer “is really a guarantor of [a product’s] safety” but not “an insurer of
[that] safety.” The Supreme Court has now overruled Azzaretio and determined that this statement
of product liability law was incorrect. The trial court’s jury charge, therefore, was erroneous.
8? Tincher v. Omega Flex, inc. 104 A.3d 328, 389 (Pa. 2014).
88 Tincher vy. Omega Flex, Inc., 104 A.3d 328, 390 (Pa, 2014).
8° Tincher v. Omega Flex, inc., 104 A.3d 328, 408 (Pa. 2014).
°° Tincher v. Omega Flex, inc., 104 A.3d 328, 408 (Pa. 2014).
36
ay vai het oe or eb ee aca pale or Re ulm Sw ke none genie Re a,
further denies that the design of the at-issue tractor was a factual cause of
plaintiff's harm and asserts that the tractor was not being used for its intended use,
nor was it used in an unintended but foreseeable way. Defendant further asserts
that the guard had been removed and, thus, the product did not reach the intended
user without substantial change in its condition. Whether plaintiff has proven that
the tractor at issue was defective and was a factual cause of his injuries, is for you
to decide. The fact that I instruct you about the clements of the charges and
defenses does not imply any opinion on my part as to what your verdict should be.
Now, let me explain these elements in defect and causation in more detail.
This is Question 1. You will sce that it's asking you about this question of defect.
Again, you will have this written charge with you in the back at some point when
those typos are corrected. You will have it in the back for you if you need it to
review. The charge with regard to defect is as follows: It is for you to decide
whether plaintiff has proven that the at-issue tractor was in a defective condition
unreasonably dangerous to the intended or foreseeable user at the time AGCO
placed the tractor into the market in 2005.
Let me now give you further instructions as to what plaintiff must prove
with regard to defect. Plaintiff may prove that the at-issue tractor was defective if
plaintiff proves by a preponderance of the evidence one of the three following
theories of defect. So you wil! see when I am reviewing it for you, the plaintiff
doesn't need to prove all three of these; the plaintiff may prove one of three.
[..-]
The second -- remember it's and/or not an and -- the tractor was unreasonably
dangerous because a reasonable person would conclude that the possibility and
seriousness of harm posed by the product as designed outweighed the burden or
cost of taking precautions. You may consider the following factors: The
seriousness of the potential harm resulting from the foreseeable use of the product
as designed; the likelihood that the harm would occur when used in a foreseeable
manner; the feasibility of an alternative safer design or other safety precautions at
the time of the manufacture or sale of the product; the cost of an alternate design
or other safety precautions, and disadvantages of an alternate design or other
safety precautions. A manufacturer/seller of a product is presumed to have known
at all relevant times the facts that have been revealed about the harmful
characteristics or consequences of the product's design. If you find that it would
not be reasonable for such defendant with such presumed knowledge to have put
the product in the market without changing the design, then the product 1S
defective. That's the second theory.”!
While this instruction was not a verbatim recitation of the Wade factors, as requested by
Plaintiff, the instruction properly presented the jury with the concepts applicable to the instant
matter. Here, Plaintiff was injured by the at-issue AGCO Massey Ferguson 451 Agricultural
9UNLT. 6/19/2018 at 199-201, 202-203.
37
Vy wtp S NR Stat de ee eae prem ef are ee a A eee
Utility Tractor while attempting to hotwire/] umpstart/bypass start the tractor while it was in gear.
At the heart of the case against AGCO was the determination as to whether the movement of the
tractor, resulting from the way it was used, was a foreseeable event or whether the movement of
the tractor resulted from an unintended misuse. Accordingly, this Court crafted a set of
instructions conveying all of Plaintiff's theories of defect (consumer expectations, risk-utility,
and failure to warn), explaining factual cause, and providing AGCO’s affirmative defenses of
substantial alteration, misuse, and assumption of the risk. With regard AGCO’s affirmative
defense of misuse, this Court instructed the jury as follows:
The defense is raising three what we call affirmative defenses in the products
liability action that other conduct was the independent factual cause or sole
factual cause, and, therefore, they are not liable for the injury.
[J
Let me discuss the second affirmative defense of what the law calls misuse of the
product, Under this defense, the products liability defendant asserts that the
tractor was not used in its intended manner and that this misuse was an
independent factual cause of the accident that if proven, relieves it from liability
to the plaintiff. The !aw is that a manufacturer of a product is not liable for harm
caused by the use of a product in a way that was unintended and unforeseeable.
To succeed in this defense, the relevant defendant must prove by a preponderance
of the evidence that the tractor at issue was used in an unintended way and the use
was so extraordinary that it was not reasonably foreseeable to the relevant
defendant, and, therefore, should be considered as the independent cause of
plaintiff's harm. Plaintiff denies this defense. This issue is for you to decide. And I
just remind you there can be more than one factual cause.”
In assessing this Court’s charge in its entirety, it is clear that all of Plaintiff's theories of defect,
including the risk-utility analysis, were comprehensively and accurately explained to the jury in
accordance with Tincher and Scction 402A of the Second Restatement.
NT, 6/19/2018 at 208-09, 210-11.
38
Re gaye ce bg one ee fe acyl, oe ap ie gt a mI on ca aaeareapa une © AER
4. The trial court properly denied Plaintiff's pre-trial Motion to Preclude
Admission of Evidence Regarding the Negligence of George E. Ley Co.
Plaintiff next contends that this Court improperly allowed evidence of George E. Ley Co.’s
negligence by denying two Motions in Limine, and by doing so, further allowing certain cross-
examination of Plaintiff's expert, Charles Miller, and further allowing certain closing arguments
of the Turf Defendants and MM Weaver. This Court disagrees.
On May 29, 2018, Plaintiff filed a Motion in Limine (Control No. 18053809) to preclude
any evidence, argument, or testimony, that Plaintiff's employer, George E. Ley, Co., was
negligent, to which the Turf Defendants filed their opposition on June 4, 2018. On June 4, 2018,
this Court docketed an Order denying the motion to the extent that the purported conduct of George
Ley was relevant to the factual cause of the incident and without prejudice to raise objections at
trial. Similarly, on May 17, 2018, Plaintiff filed a Motion in Limine (Control No. 18052308) to
preclude any evidence, testimony or argument regarding parties that had been dismissed, to which
AGCO filed its opposition on May 29, 2018 and MM Weaver joined in the opposition. On June
4, 2018, this Court docketed an Order denying the motion without prejudice for all parties to raise
objections at trial and deferring the issue of dismissed parties for further argument as to the
applicability of either Section 303(b) of the Workers’ Compensation Act at 77 P.S. § 481 or the
Fair Share Act at 42 Pa.C.8.A. § 7102(a.2).
Section 303(b) of the Workers’ Compensation Act provides:
In the event injury or death to an employee is caused by a third patty, then such
employe, his legal representative, husband or wife, parents, dependents, next of
kin, and anyone otherwise entitled to receive damages by reason thereof, may
bring their action at law against such third party, but the employer, his insurance
carrier, their servants and agents, employes, representatives acting on their behalf
or at their request shall not be liable to a third party for damages, contribution, or
indemnity in any action at law, or otherwise, unless liability for such damages,
contributions or indemnity shal! be expressly provided for in a written contract
39
AE CR
-_ pete aR iy aed Dp a CB Sian ae See SE nee ET EE
entered into by the party alleged to be liable prior to the date of the occurrence
which gave rise to the action.”*
The Fair Share Act at 42 Pa.C.S. § 7102(a.2) states:
For purposes of apportioning liability only, the question of liability of any
defendant or other person who has entered into a release with the plaintiff with
respect to the action and who is not a party shall be transmitted to the trier of fact
upon appropriate requests and proofs by any party. A person whose liability may
be determined pursuant to this section does not include an employer to the
extent that the employer is granted immunity from liability or suit pursuant
to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’
Compensation Act. An attribution of responsibility to any person or entity as
provided in this subsection shall not be admissible or relied upon in any other
action or proceeding for any purpose. Nothing in this section shall affect the
admissibility or nonadmissibility of evidence regarding releases, settlements,
offers to compromise or compromises as sct forth in the Pennsylvania Rules of
Evidence, Nothing in this section shall affect the rules of joinder of parties as set
forth in the Pennsylvania Rules of Civil Procedure.”*
Subsection (a.2), while expanding the scope of persons to be submitted to the factfinder for
apportionment of liability, specifically excluded employers from any such apportionment.
While the above legislation precludes a third party from bringing an action in tort or
seeking apportionment against the employer, whether through an independent cause of action or
through a joinder into an existing action, neither Act by its terms precluded AGCO, MM
Weaver, or the Turf Defendants from contesting the actual cause of Plaintiff's accident or
contesting that Plaintiff could meet his burden of proof regarding the cause of the incident at
issue, Here, neither AGCO, MM Weaver, nor the Turf Defendants ever sought to place Ley on
the verdict sheet.2> As such, no violation of the specific terms of either Act occurred.
377 PS. § 481.
A? Pa.C.S.A. § 7102(a.2) (emphasis added).
°$ Plaintiff had named Ley as an original defendant in the action, but Plaintiff, AGCO, and the Eastern Irrigation
entered a Stipulation on April 12, 2016, prior to the filing of the Amended Complaint, that all claims and cross-claims
against Ley were dismissed.
40
em TOU ie Date erm ow ta ek ett: ee ee Ee ete wea pale eas
During argument on the motions and in this Court’s pre-trial rulings on the motions, this
Court contemplated that the applicability of Section 303(b) of the Workers’ Compensation Act at
77 P.S. § 481 or the Fair Share Act at 42 Pa.C.S.A. § 7102(a.2) as to any dismissed parties could
be deferred for further argument following the close of evidence and creation of the verdict
shect. While Plaintiff initially named other parties as Defendants, no dismissed parties ever
appeared on the verdict slip and, thus, the protections defined within the Workers’ Compensation
Act and the Fair Share Act provide no source of error. Accordingly, as neither Act precluded
this Court’s evidentiary rulings at trial and because Plaintiff cannot point to any portion of the
transcript where an item of evidence was admitted at trial, over objection, in reliance on the Acts,
Plaintiff's claim of error is meritless.
In addition to the meritless claim of error related to the Workers’ Compensation Act and
the Fair Share Act, Plaintiff challenges the admission of evidence at trial regarding the conduct
of Ley based upon prevailing case law. The instant case presented a thorny evidentiary
landscape due to the differing legal claims among the parties. Plaintiffs theories of liability as
to AGCO were related solely to the production of a defectively designed product.” Plaintiff's
theories of liability as to MM Weaver were twofold: one was based on the sale of a defectively
designed product and the other was an independent claim of negligence for the sale of the tractor
without a guard or a manual. Plaintiff's theory of liability as to the Turf Defendants was that
they had removed the guard and resold the tractor back to MM Weaver without the guard.
AGCO’s primary defenses were that the product had becn changed substantially by the removal
of the guard and that the Plaintiff's hotwiring/jumpstarting of the tractor was not an intended use,
% Plaintiff asserted a negligent design defect and strict liability design defect claim against AGCO, however this
Court directed verdict in favor of AGCO on the negligent design defect theory as discussed above in Plaintiff's first
claim of error.
41
eget a Sa ep ee Mote honey ty
and this combined misuse was the sole cause of the incident. The Turf Defendants’ and MM
Weaver’s primary defenses were that Ley, or one of Plaintiff's co-workers, had removed the
guard, not them; therefore, Plaintiff could not meet his burden of proving that the conduct of
cither the Turf Defendants’ or MM Weaver, prior to the sale to Ley, was a factual cause of the
incident. Accordingly, this Court ruled that evidence of Ley’s actions and/or inactions
concerning the removal of the guard was relevant to the causation defenses and that the
probative value far outweighed any prejudice to Plaintiff. It was the above legal theories
pursued by Plaintiff, and the concomitant defenses, that guided this Court’s evidentiary rulings
as to relevance,
In Plaintiff's arguments for a new trial, he mischaracterize the available Pennsylvania
caselaw regarding these evidentiary issues in an attempt to manufacture a precedent that
evidence of an employer’s conduct is inadmissible at trial. This is simply not the case. Plaintiff
has relicd upon the Supreme Court’s holdings in Bell v, Koppers Co., 458, 392 A.2d 1380 (Pa.
1978), Tsarnas v. Jones & Laughlin Steel Corp., 412 A.2d 1094 (Pa. 1980), and Heckendorn v.
Consolidated Rail Corp., 465 A.2d 609 (Pa. 1983); however, these decisions were all rendered
with regard to the disposition of preliminary objections to the joinder of an employer for
contribution and indemnification wherein the Court held that Scction 303(b) of the Workers’
Compensation Act prohibited zieh cause of action. None of these cases addressed the
admissibility of evidence of an employer’s conduct to defend on the issue of the cause of the
incident at issue, nor do these cases provide authority for Plaintiff's claim that evidence of an
employer’s conduct is inadmissible at trial. By contrast, our federal jurisprudence has explicitly
42
een Be areas eh gt ed Les PNA aeaigedt 2 A
held that an employer’s statutory immunity from suit “does not per se preclude admission of
employer or co-worker negligence in a suit against a third party.”°7
This Court’s disposition of the admissibility of the conduct of Ley was not based on a
statutory or precedential bright line rule permitting the admission of the at-issue evidence, but
instead was properly guided by the Pennsylvania Rules of Evidence, which afford the trial court
the ability to assess the facts and circumstances of a particular case in order to make the
appropriate ruling, and to defer rulings on who will be on the verdict sheet for the time after all
of the evidence has been presented. The Pennsylvania Rules of Evidence dictate that all relevant
evidence is admissible and evidence is relevant if it has any tendency 1o make a fact more or less
probable than it would be without the evidence and the fact is of consequence in determining the
action.2® Rule 403 permits the court to exclude otherwise relevant evidence if its probative value
is outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, and/or needlessly presenting cumulative evidence.” In clarifying the
parameters of “unfair prejudice” our Superior Court has stated that prejudice “does not mean
detrimental to a party's case, but rather, an undue tendency to suggest a decision on an impropet
basis,””1°
Plaintiff alleged that the Turf Defendants were negligent in removing the guard covering
the solenoid starter sometime between 2006 and 2008 when the Turf Defendants had the at-issue
7 Kern y, Nissan Indus. Equip. Co., 801 F. Supp. 1438, 1445 (M.D, Pa. 1992). The Kern Court referenced similar
holdings from other districts, citing to Stolarik v. Hendrick Mfg. Corp., 767 F.Supp. 88 (M.D.Pa.1991), aff'd without
opinion, 961 F.2d 210 (3d Cir.1992) and Brescia v, freland Coffee—Tea, Inc., 73 F.R.D. 673 (B.D, Pa.l977). In
Stolarik, the Court declined to instruct the jury that Plaintiff's employer was immune from suit and that any
negligence imputed to it was irrelevant and did not provide a defense to Plaintiff's strict liability claim against the
defendant manufacturers. Sfolarik, 767 F.Supp. at 89-90. The Brescia Court determined that it was permissible for
the defendant to argue that third-party's actions wholly responsible for plaintiff's injuries, despite the third party
being immune from suit. Brescia, 73 F.R.D. at 678
* Pa RE. 401- 402.
% Pa.R.E. 403.
100 Leahy v. McClain, 732 A.2d 619, 624 (Pa. Super. 1999).
43
Se ee ee
= ah
Bie al re ERR th deere eee ere re at eee eee
tractor, Plaintiff also alleged that MM Weaver was negligent for selling the at-issue tractor to
Ley in 2008 without the guard covering the solenoid starter and/or without the operator manual.
In a negligence action, Plaintiff has the burden of proving, by a preponderance of the evidence,
that the harm suffered was due to the conduct of the defendant.'®! The assessment of whether
Plaintiff has met this burden is most often a jury determination, unless “it is clear that reasonable
minds could not differ on the issue.”!°? As stated by our Supreme Court, “[i]n establishing a
prima facie case, the plaintiff need not exclude every possible explanation of the accident; it is
enough that reasonable minds are able to conclude that the preponderance of the evidence shows
defendant's conduct to have been a substantial cause of the harm to plaintiff.”'? Here, the
determination of liability in Plaintiff's negligence claims for the absence of the guard and manual
required the jury to assess when the guard and the manual were removed and by whom.
Accordingly, evidence of Ley’s actions and/or inactions concerning the removal of the guard and
the manual were critical to MM Weaver and Turf Defendants’ defenses related to their own
liability.
Moreover, because Plaintiff was pursuing negligence claims against Turf Defendants and
MM Weaver, these Defendants were pursuing their own claims of comparative negligence against
Plaintiff with regard to his operation of the tractor. To defend against the claims of comparative
negligence, Plaintiff himself introduced evidence that he only jumpstarted the tractor because of
his employer’s instructions, thereby interjecting J.cy’s lackluster training of employees and Ley’s
condoning of the purported misuse.'™
‘Ol Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978).
2 Hamil, 392 A.2d at 1285.
103 Hamil, 392 A.2d at 1285.
104 NT. 6/5/2018 at 44-47,
44
te a ee see AS aptly Gee AL Ie rate ete rt mb rey Oe a US eee ee ene cng ee ee ean evans ek a
For all of the reasons set forth above, this Court rejects and denies Plaintiff's averments
that this Court improperly allowed evidence of George E. Ley Co.’s negligence to be admitted at
trial by denying two Motions in Limine.
4a. Introduction of evidence through the cross-examination of Charles Miller
In addition to generally raising the issue that the conduct of Ley should not have been
allowed as evidence at trial, Plaintiff has raised the specific claim of error concerning the
testimony elicited on cross-examination of Plaintiff's witness, Charles Miller. While the greater
part of Plaintiffs claims related to the cross-examination of Charles Miller were not objected to
and may be dcemed waived, this Court has chosen to address the testimony, as one objection was
preserved.
At trial, Plaintiff called Charles Miller as an expert in inspection, maintenance, and sale
of agricultural equipment based upon his experience as a mechanic.'” In Plaintiff's direct
examination of Mr. Miller, Plaintiff elicited Mr. Miller’s opinion that, at the time of equipment
inspection, he would expect all guards, manuals and decals to be in place and that he would
replace anything he found to be missing. The pertinent portion of Mr. Miller’s direct
examination provides the following:
BY MR. BUDNER:
Q. Do you expect that guards are going to be removed when you're inspecting
equipment?
MR. FOWLER: Objection.
THE COURT: Overruled.
THE WITNESS: No, sir. Guards should and usually are in placc.
BY MR. BUDNER:
Q. Do you expect that decals will be removed?
A. No, sir.
1S The Turf Defendants objected to the scope of Mr. Miller’s expertise and this Court ruled that any of Mr. Miller’s
opinions should be based upon his experience and should not be elicited as to what a reasonable person would do.
See N.T. 6/8/2018 at 147-157.
45
Q. Do you expect that manuals will be removed?
A. No, sir. They should be with the equipment.
Q. If the decals and guards and manuals arc removed, you go out and find those
things, correct, and replace them?
A. Yes. That's part of the inspection process.
Q. In this case from your review of the records, was any inspection done of the
Massey Ferguson 451 before it was sold to George Ley?
A. Lhave seen no evidence that it was inspected. | have seen no literature that
anybody inspected it.
Q. In fact, we have just gone through the sale documents. It was sold before it
was actually inspected in trade-in, right?
MR. DEMARCO: Objection. The dates of the invoices speak for themselves.
This man has no knowledge --
THE COURT: Stop. You can certainly make those arguments as to inferences
for our jury. This witness is in no better spot to answer that than the jury is.
BY MR. BUDNER:
Q. What is the first thing you inspect when you get a piece of equipment that is
for purchase or sale?
A. I typically inspect the -- what we consider the safety aspects of the equipment:
The steering, the brakes, the throttle controls, transmission controls, Any safety
items such as seat belts, obviously, guards, the decals we talked about earlier, to
be sure the machine is safe and ready] for operation.
Q. Is failing to inspect those safety systems a deviation from the standard of care
in your industry inspecting agricultural equipment?
MR. FOWLER: Objection. He asked purchased or sale.
THE COURT: Just clarify the question that you're asking.
MR. BUDNER: He says he inspects --
THE COURT: To him. Make sure.
BY MR. BUDNER:
Q. In your inspections in your industry, not inspecting those very safety systems,
the guards, the decals, the manuals, is that something that deviates from the
standard of care within your industry?
MR. FOWLER: Same objection.
THE COURT: Sustained. You can just ask in a way about what he would expect,
things like that.
BY MR. BUDNER:
Q. Would you expect someone inspecting equipment to look for the guards?
MR, FOWLER: Here's my objection --
THE COURT: No.
MR. FOWLER: -- just for sale --
THE COURT: I will overrule the objection.
THE WITNESS: From a mechanical standpoint, all of these things should
always be in place, and you, as a mechanic, it's part of your job to be sure they're
there. If you remove something, it's part of your job to put it back.
BY MR. BUDNER:
Q. That's part of every inspection, sir?
46
hy a ee ee
+ Pan at ete Ti Serece gy fae Beart oiler gr aed ks etait et FR geet eh ns»
MR. FOWLER: Same objection.
THE COURT: Overruled.
THE WITNESS: As a mechanic, yes, sir.'®
Subsequently, on cross examination, MM Weaver questioned Mr. Miller regarding the actions
that Ley had taken with regard to the guard and the manual on the at-issue tractor. This
testimony was elicited to infer that Ley had removed the guard and was in response to his above-
referenced opinion inferring a faulty inspection by MM Weaver, as the jury would have to
determine when the guard was removed from the tractor and who was responsible for removing
it. Specifically, the cross-examination provided the following testimony (and Plaintiff's claims
of error are indicated in boldface type):
[BY MR. DEMARCO]
Q. When did you first see the tractor?
A, | seen the photos of the tractor.
Q. You never actually seen the tractor itself?
A. No, sir. | looked at dozens and dozens of photographs.
Q. Fair enough. Did you look at photographs taken of the tractor in 2016?
June of 2016 I believe it was the first photographs that were produced with
regard to the tractor,
A. I believe so, yes, sir.
Q. You will agree with me over a year, 15 months after Mr. Timmonds’
accident, when those photos were taken, there was no guard over the
solenoid, correct?
A. That's correct.
Q. So for a 15-month period of time, Ley allowed its employees to have that
tractor after Mr. Timmonds' incident without replacing that cover?
A. That's my understanding.
Q. You will agree with me there was no manual with that tractor 15 months
after Mr. Timmonds' incident?
A. That's also what I read, yes.
Q. There were pictures of this tractor taken in 2017. Did you see those about
June of 20177
A. Yes, sir.
Q. You will agree with me two years-plus after Mr, Timmonds' incident,
there was still no cover over that solenoid?
A. That's correct.
Q. There was still no manual with that tractor?
A. That's my understanding.
6 NT. 6/8/2018 at 176-180.
47
ee ee
EER.
de ing er Pade aimee eg ce mee pT A veep hee tare we AE te
Q. Did you see pictures taken last month of this tractor, May of 2018?
A. I'm not sure. I might have.
Q. Can we agree that Mr. Ley still to this day has not replaced the cover on
that solenoid?
A. I couldn't say one way or another. I haven't seen a picture of it, a solenoid
with a cover on it.
Q. Ever?
A. No, sir.
Q. You haven't scen a picture of this tractor with a manual with it either, have
you?
A. No, sir.
Q. In fact, the holder for the manual, there is a pocket which you place the manual
in for this tractor, correct?
A. Yes.
Q. Up on the ROPS, there is a little vest there and you stick the manual in there
correct?
A. Yes.
Q. Is that vest even with this tractor in the photos that you have seen?
A. | don't think so.
Q. Sir, you were not asked to address the safety practices or lack thereof of
the George Ley Company, were you?
A. I was simply asked to address the mechanical safety aspect of this tractor.
Q. But you have competency to address the safety practices of Ley?
MR. BUDNER: Objection. He's not being offered in that capacity.
MR. DEMARCO: | will withdraw it.
BY MR. DEMARCO:
Q. You were in court when Mr. Hummer's deposition was played, correct, on
Wednesday?
A. No, sit.
Q. Did you leave earlier than that?
A. Yes, sir.
Q. Sorry about that. You read his deposition, though?
A. I'm not sure I read Mr. !lummer's.
Q. Fair enough. You did read the deposition of Eugene Hurst, correct?
A. Yes.
Q. And he testified more than once at his deposition that when he sold this tractor,
the cover was on the solenoid, correct?
A. Yes, sir.
Q. And he testified that the manuals were with the tractor when he sold this
tractor, correct?
A. That's what I read, yes, sir.
Q. He testified that all the decals that were produced by the manufacturer were on
this tractor when he sold it to Ley back in 2008, correct?
A. That was his testimony.
Q. You were not in court when Mr. [mmel testified, correct?
A. No, sir.
48
Te eT en Ee coon re ede ees ce tye ley steele
SA Ae Slender eee ee hue a rend Tene get a eRe ae MN eran sates Ae Aa ey Sot
Q. And you were not in court when Mr. Martin testified, correct’?
A. No, sit.
Q. You understand Ley had in-house mechanics taking care of its own tractors,
correct?
A. I remember reading that he had some people that did some work on the
tractors.
Q. So for a seven-year period of time, Ley employees took care of this
tractor, correct?
A. I haven't seen any records for that period.
Q. You didn't see the little maintenance book that Mr. Ley produced in the
case?
A. I saw some of that, but I didn't see any invoices where anyone else had
worked on it.
Q. It was all done in-house, to the best of your knowledge, during that seven-
year period of time, correct?
A. According to the records I have seen.
Q. You haven't spoken to any of those mechanics?
A. No, sir.
Q. You don't know what they did or didn't do with this tractor over that
seven-year period of time?
A. Just read their depositions.
Q. Depositions of the mechanics?
A, Well, some of the employees.
Q. There were no depositions of the mechanics, correct?
A. I didn't see any.
Q. In fact, Mr. Ley couldn't even tell us the names of the mechanics over that
seven-year period of time. Are you aware of that?
A. Yes,!"7
This testimony was relevant and its probative value was not outweighed by a danger of unfair
prejudice, as the negligence claims against both MM Weaver and the Turf Defendants hinged on
a factual determination that the guard and manual had been removed prior to the sale to Ley.
The evidence was properly presented to the jury on cross-examination and, as such, this Court’s
denial of Plaintiffs Motion in Limine provides no source of error. Moreover, this Court’s Order
denying the Motion in Limine was entered “without prejudice to raise objections at trial.”
Plaintiff only objected to one question of the cross-examination, which was withdrawn, and thus
107 NT. 6/8/2018 at 186-190.
49
come Wenge gine A ya rei ire dre aie ati ee et deat ag se ee ES Apa Tr STE EM AE ST A
any other challenges are waived and cannot be presented through a challenge to the Motion in
Limine.
4b, Closing arguments of the Turf Defendants
With regard to the claim of error concerning portions of the Turf Defendants’ closing
arguments alleged to have improperly flowed from this Court’s denial of the Motion in Limine,
this Court finds the claim to be meritless. ‘The cause of action against the Turf Defendants was
solely based on the allegation that they removed the guard from the at-issue tractor. As such,
evidence of Ley’s actions and/or inactions concerning the removal of the guard was relevant to
the Turf Defendants’ factual defense related to their own liability and was not outweighed by a
danger of unfair prejudice. The evidence presented at trial remained entirely circumstantial! as to
who removed the guard and both Plaintiff and the Turf Defendants argued their respective
assessments of the evidence to the jury.!® Plaintiffs closing remarks provided:
Now, I want to mention the theories of liability against the other defendants,
M.M., Weaver and the Turf defendants, or Sporting Valley, Mr. Fowler's clients.
The issue against Sporting Valley is very simple. Do you -- when you analyze the
evidence, analyze the scales and the preponderance, what does the evidence show
us about when that guard was taken off? | will be the first one to tell you, I think I
was the first one to tell you in opening statements, we don't have some magic
testimony of some guy coming in to say, ! took the guard off and here's when |
did it. That simply isn’t realistic. When you go to bed at night and there is no
snow on the ground and you wake up and there is snow, you don't have to have
seen it snow to know it snowed.!°”
[.. J
Hummer, Sporting Valley, Mr. Fowler's client hasn't presented any evidence that
they didn't take off the guard. They tried to throw mud at George Ley. They said
this is just a bad company that doesn't act that safely. This is the kind of company
that works in the agricultural engineering field, guys that get the job done when
18 The testimony of Plaintiff's witnesses Jeffrey Immel, Jeffrey Martin, and George E. Ley, III provided no direct
evidence of when the guard was removed and, thus, all counsel argued as to what the jury should draw
circumstantially from such testimony. See N.T. 6/5/2018 at 44: 14-24: N.T. 6/5/2018 at 122-123; N.T. 6/5/2018 at
135:8-21; N.T. 6/5/2018 at 148-149; N.T. 6/5/2018 at 171-172; N.T. 6/5/2018 at 186:8-18.
WNT. 6/19/2018 at 51-52.
50
they're out there. But there wasn't any evidence from the witnesses we heard on
this stand, from the depositions we took, from the investigation conducted that
they ever took it off. The only suggestion from the evidence what the
circumstantial evidence shows is that it was likely done beforehand.'!°
In response to Plaintiff's summation to the jury, the Turf Defendants argued the following, which
is the basis of Plaintiff's claim of error:
There are two main entities that are at fault in this accident. Plaintiffis one of
them, but the Ley Company is the second one. So the only two things I'm going to
talk about before I finish my closing is plaintiff's negligence and the Ley
Company's negligence.'"'
[...]
Now, there will not be a specific box to check with regard to Mr. Ley and Mr.
Ley's company. But you will be able to assess the liability as to whether their
actions are a factual cause. In this case, Mr. Ley, you heard about OSHA
violations, had multiple OSHA violation with regard to the Ley Company. First,
they didn't give correct training with regard to plaintiff, Second, they had broken
pieces of equipment and they allowed them to be on the job site. Third, they had a
safety manual and they didn’t follow the safety manual. Four, they were supposed
to have somebody inspect this tractor every day. Do you remember that
testimony, every morning before we use the equipment, you're supposed to have
somebody sign off that the equipment is safe. Four issues, You're going to be
asked what was the factual cause of this accident. Was it my client's negligence or
alleged negligence a factual cause. You can check no because the factual cause of
the accident is the Ley negligence, as opposed to my client's negligence.'!
Moreover, Plaintiff used his rebuttal to further address the Turf Defendants’ liability defense, as
follows:
You were told and Mr. Fowler mentioned it at the end a lot about George Ley
Company and as he mentioned, they're not on the verdict sheet. They're not a
party for you to consider. Can't sue your employer. They're not therc to assess
damages against. The parties in this case and their conduct was a factual cause of
this accident. And that's the key language. They spoke to you about cause. You're
going to be asked questions about whether each defendant's conduct was a cause.
The reason there is not just one party here, there is a reason why there are often
multiple parties is because when something goes so wrong there are often
multiple causes. And in this case there are. So when you get to those questions
NO NLT. 6/19/2018 at 56-57.
MUN. T, 6/19/2018 at 162-163
M2 NT, 6/19/2018 at 165-166
51
Se eset oe cence rage aor ee rie ee nto
about was their conduct a cause or was the defect a cause, it doesn't have to be the
only cause. It was a substantial factor that played a role. It was a cause. He
The argument of the Turf Defendants did not violate the Fair Share Act, the Workers’
Compensation Act, nor any of the governing case law of this Commonwealth. Ley did not appear
on the verdict slip in any capacity — not as a party nor for any apportionment purpose — and this
Court’s instructions clearly defined the parameters of factual cause for the jury.'' The argument
flowed from evidence properly admitted at trial and thus, no error can be found in this Court’s
denial of the Motion in Limine.
4c. Closing argument of MM Weaver
As part of his contention that the conduct of Ley should not have been allowed as
evidence at trial, Plaintiff has raised the specific claim of error concerning portions of the closing
remarks of MM Weaver. This Court has found any claim related to MM Weaver’s closing
remarks to be waived as no objection was made at trial and cannot now be laundered into a
permissible claims of error through the Motion in Limine.
5. The trial court properly admitted evidence of Plaintiff’s prior bad acts /
character
As Plaintiff’s last claim of error, Plaintiff submits that this Court improperly allowed the
defendants to utilize evidence of Plaintiff's prior bad acts/character in violation of Pa.R.E. 404(b)
and pre-trial rulings on Plaintiff's Motions in Limine. This Court disagrees. Plaintiff filed two
Motions in Limine seeking to preclude the defendants from introducing evidence, testimony, or
argument regarding Plaintiffs prior convictions and/or arrests (Control No. 18052305) as well as
3 NT. 6/19/2018 at 172.
MNT, 6/19/2018 at 225-227.
22
his prior drug use (Control No. 18052317), which this Court granted in part on June 4, 2018.
Specifically, on Control No. 18052305, this Court ruled that the defendants were precluded from
mentioning, arguing, and/or referencing any prior criminal arrest or conviction of Mr. Timmonds,
unless such information was proven to be relevant to the testimony of the vocational experts. On
Control No. 18052317, this Court ruled that the defendants were precluded from offering any
evidence, testimony, or argument regarding or referencing Michael Timmonds’ 2012 guilty plea
for possession of a controlled substance and drug paraphernalia and/or the allegedly failed 2001
drug test, unless, at trial, such evidence was proven to be relevant to the testimony of the vocational
experts or to life expectancy.
Rule 404(b)(1) of the Pennsylvania Rules of Evidence states that, “[e]vidence of a crime,
wrong or other act is not admissible to prove a person’s character to show that on a particular
occasion the person acted in accordance with the character.”!'5 However, Rule 404(b)(2) provides
that such evidence “may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”!!®
Admission of evidence under Rule 404(b)(2) is, of course, constrained by the balancing analysis
of Rule 403 wherein, the court may exclude relevant evidence “if its probative value is outweighed
by a danger of [. . .] unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time or needlessly presenting cumulative evidence.”'!7 Plaintiff cites to our Supreme
Court’s holding in Commonwealth y. Chmiel''* to support his averment that the defendants
violated Rule 404(b) at trial. In Chmiel, the Court ruled that evidence of a prior burglary was
properly excluded using Pa.R.E 404(b) in conjunction with Pa.R.E. 608(b) because there was no
15 Pa RE. 404(b)(1).
116 Pa R.E. 404(b)(2).
17 Pa R.E. 403.
18 889 A 2d 501 (Pa. 2005).
53
PS ene aT,
er
woe Oe Eu er eave Teno terri i aE BM BE ed eee 8 re mak eee ae
conviction of the prior uncharged burglary and the probative value of the uncharged burglary to
“show an action in conformity herewith” was outweighed by the potential for unfair prejudice,
confusion of the issues, or misleading the jury.!!? The Court did, however, permit the witnesses
to be impeached with their prior convictions for arson-related offenses under Pa.R.E. 608(b) in
order to attack their credibility.'2° While Chmiel speaks to the function and purpose of Pa.R.E.
404 and demonstrates the interplay of our evidentiary rules, it is not dispositive of the factual
scenario in the present case,
Plaintiffs claims of error stem from threc instances in which he alleges that this Court
permitted the defendants to refer to prior bad acts evidence, excluded by the Motions in Limine,
in violation of Pa.R.E. 404. The first alleged violation relates to the portion of MM Weaver's
opening statement where counsel stated that “Mr. Timmonds has not always colored within the
lines [.. .]” The full context of the remark is reflected in the transcript as follows:
In terms of the damages side of things and Mr. Timmonds himself, I'm not -- I
love my job. There is aspects of it I don't like. One of them is saying negative
things about people. I will try not to say very much negative about Mr.
Timmonds. You heard a little bit of it from Mr. Murtagh, but the reality is that
Mr. Timmonds has not always colored within the lines during the course of his
existence and you will hear more about that. There is no reason for me to beat that
to death as we go forward. I think he has $1,454 of documented income during
the decade, over the last decade or so. But, again, I'm not going to go too far down
that lane. Thank you all for your attention. !!
Plaintiff requested a mistrial and averred that counsel had referenced the prior bad acts that were
specifically precluded by the Motions in Limine to insinuate that Plaintiff had been doing
something illegal. Initially, this Court determined that the “color within the lines” statement was
too vague to infer anything about Plaintiff’s prior bad acts. MM Weaver explained that the
? Chmiel, 889 A.2d at 534-35.
120 Chmiel, 889 A.2d at 535.
21 NLT, 6/4/2018 at 65-66.
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“eolor within the lines” statement was made in reference to Plaintiff's lack of driver’s license, as
previously mentioned to the jury concerning his qualifications/training as related to the intended
uscrs of the tractor, The remark regarding $1,452 of documented income pertained to Plaintiff
working under the table, which was highly relevant to Plaintiff's wage loss claim, which was still
in the case at the time of opening statements. The mere fact that Plaintiff worked under the table
does not make the reference improper. Our caselaw supports the award of lost wages based on
income from working under the table, provided that Plaintiff satisfies his burden of presenting
“sufficient data from which the damages can be assessed with reasonable certainty.”'”? Having
determined that MM Weaver’s remarks did not reference any prior bad acts, as precluded by the
Motions in Limine and Pa.R.E. 404, and that the remarks were relevant to the claims at issue,
this Court properly denied Plaintiff's request for relief.
The second alleged violation arose in the course of AGCO’s cross-examination of
Plaintiff, wherein counsel asked Plaintiff if he had ever used a name other than Michael
Timmonds. Plaintiff’s counsel objected and now argues that counsel’s inquiry insinuated that
Plaintiff was less than truthful by having used another name and that counsel’s inquiry was an
attempt to elicit impeachment testimony concerning Plaintiff's criminal record in another name.
Akin to the discussion above, the mere fact that an individual has used alternative names does
not implicate him/her in criminal conduct.'? Furthermore, acknowledgment of Plaintiffs aliases
was highly relevant to the trial proceedings to explain why medical records shown to the jury
reflected a different name. The medical records included Plaintiff's social security number with
the corresponding name “Birdie Johnson.” In the course of AGCO’s crow -exadtnation Plaintiff
provided evasive answers and counsel objected several times. This Court overruled each
12 Crespo v. Hughes, 167 A.3d 168, 177-79 (Pa. Super. 2017).
123 (om, v. Huichinson, 25 A3d 277, 304 (Pa. 2011).
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et mR tae net Reed rca woam kee SS Se ee
objection, indicating that Plaintiff need only provide a yes or no answer to this question.
Specifically, the transcript reflects the following exchange:
|BY MR. MURTAGH]
Q. [.. .] Is there any other name that you have gone by?
MR. GOODMAN: Objection. They're subpoenaed by a Social Security number,
not by a name,
THE COURT: Have you used another name other than Michael Timmonds; yes
or no?
MR. GOODMAN: [ objcct to that question, too.
THE COURT: Yes or no. He only has to say yes or no. Overruled.
BY MR. MURTAGH:
Q. Did you ever go by --
A. | don't remember.
Q. Did you ever go by the name of Birdie Johnson?
MR. GOODMAN: Objection.
THE COURT: Overruled.
MR. GOODMAN: May we see Your Honor?
THE COURT: Does it have to do with something we ruled on before? It's yes or
no. Nothing more. Did he go by that name?
MR. GOODMAN: Yes.
MR. MURTAGH: No.
THE COURT: It’s just yes or no. | understand. I do understand what the
objection is and he may answer it yes or no. I'm not saying there could be a
further question beyond that.
THE WITNESS: I will say at birth I was given the nickname Bird.
THE COURT: You're saying you were given the nickname Bird, He did have a
nickname of Bird.
MR. MURTAGH: That wasn't my question.
THE COURT: That's what his answer is -- stop talking -- that's what his answer
is and that’s all he needs to answer. Yes, he did have a nickname Bird.
MR. MURTAGH: Your Honor, if I might ask --
THE COURT: | know exactly --
MR. GOODMAN: Michael, there's no question.
THE COURT: When I say that's all he needs to answer, yes, he did go by the
nickname Bird.
BY MR. MURTAGH:
Q. Did you ever use the name Johnson?
MR. GOODMAN: Same objection.
THE COURT: Understood. It's overruled. To the same extent that he can provide
an answer.
THE WITNESS: I don't know.
BY MR. MURTAGH:
Q. You don't know one way or the other whether you ever used the name
Johnson?
56
ea Meg pepe kore ee. fe et aaa om tk tn en ree
A, My last name is Timmonds.
Q. Did you ever use the name Johnson?
A. | don't know.
Q. Did you ever use the name Ronald Johnson?
A. I don't know.
MR. MURTAGH: This is kind of a difficult spot. Could we have a moment with
you? We would very much appreciate it.
THE COURT: No. You may continue. He doesn't know. He told you that there is
lots of things he doesn't remember. We will put this in one of those categories and
move along.
MR. MURTAGH: I have nothing else for right now.'”"
This Court properly limited the scope of the questions to allow AGCO to demonstrate that the
medical records displaying another name were, in fact, those of the Plaintiff. No further
questions were asked that alluded to Plaintiff's prior bad acts under a different alias. As such,
there was no violation of Pa.R.E. 404(b) or this Court’s pre-trial rulings and this Court properly
overruled Plaintiff's objections.
The final alleged violation arose in the course of the Turf Defendants’ cross-examination
of Plaintiff, wherein counsel asked Plaintiff about his employment history and the type of work
he had performed. Plaintiff was not forthcoming in his responses and refused to provide the last
name of his prior business partner. The transcript provides:
[BY MR. FOWLER: ]
Q. So I don't think we covered a lot of questions about your work background, so
let me ask you a couple of questions about that, okay. So in your lifetime, what
kind of jobs did you hold?
MR. GOODMAN: Your Honor, there's not a vocational claim. I object to
relevance.
THE COURT: J understand. It's just gencral background for the jury to evaluate
the time.
MR. FOWLER: Exactly.
THE COURT: You wil! not spend a lot of time on it, but generally what did he
do for work.
BY MR. FOWLER:
Q. What did you do before?
A. | worked numerous of jobs. I can't give you any specifics like the time I started
or when --
4 NT. 6/6/2018 at 79-82.
57
ace a lay a eR ade EE Rp ee CR rE Pore se mee pune nen Tota s Meter ae ee MeN
THE COURT: I think the question is just asking very generally, even if you don't
remember the years and all of that, what you did.
BY MR. FOWLER:
Q. Were you -- I jokingly say to people were you a butcher, a baker or candlestick
maker? What did you do for a job, what was your living?
A. It was just any available line of work. I can’t give you any specifics other than
when I was just working for George Ley. I think we can keep it as that.
Q. Let's talk a little bit more stuff. Were you in the construction industry?
A. There is a lot of things that I have done since I started working.
Q. Great. Tell us about those. What did you do for work before Mr. Ley?
A. I can't talk about specifics. In regards for working for George Ley? I don't
think I have to get into details of what other work 1 got, but I have worked off and
on.
Q. My question is -- I'm not going to ask you for specifics regarding dates, but,
generally, tell me what line of work were you in before you went to work for Mr.
Ley. What did you do for a living, what was your occupation, if you had to put
that down on some type of form?
A. We can go as far as in my lifetime, I have been a laborer.
Q. What type of laborer were you, sir? What kind of areas did you work in?
A. General labor.
Q. | understand that.
A. [ can't give you any more than of what I have done general labor, sir.
Q. You gave them to us in the deposition. Is there some reason that you can't give
them to us today?
A. Because there is many jobs I had off and on. { mean, that’s what | can tell you.
Q. Just please tell us the last job that you had or the last occupation or the last line
of work that you had --
A. I can't give you any specific dates.
Q. | don't need specific dates. I understand that you don't have specific dates. |
won't ask you for those, I promise. All I’m asking for is before the Ley job, what
were you doing for a living, what was your job?
MR. GOODMAN: At which time with Ley? He started there in 2001 and came
back. I don't know which time.
MR. FOWLER: At this point ! will take any.
THE COURT: Anything that you can remember.
THE WITNESS: Always been a general laborer. That's all I can give you a
straight answer to, sir.
BY MR. FOWLER:
Q. You were working as a general laborer for a company that does irrigation.
Before you were working for a company that does irrigation work, what were you
doing general labor-wise? Here's why I'm asking. J want to ask other questions
about your general knowledge in the construction industry. What I'm asking for is
what] area before working in irrigation did you work in?
A. Just general laborer. I mean, I'm just going to give you the same answer. |
mean, in regards because that can be to anything on the in or -- no, I'm sorry. On
58
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the outside or inside field. | was just a general laborer. Could you please accept
my answer as that?
Q. So my understanding from your deposition was that you and another man had
a company in which you did construction work together for a number of years,
correct?
A, Yes.
Q. What was the name of the other man? Do you not want to tell me?
MR. GOODMAN: Objection.
MR. FOWLER: I'm asking because he's looking at the Judge.
THE COURT: Can you remember the name of the person?
THE WITNESS: I can give you the first name if that's what you want.
BY MR. FOWLER:
Q. I would like the full name. If you don't remember his full name, that's okay.
A. His name is Dave.
Q. What is Dave's last name?
A. Handyman services.
Q. What is his last name?
A. I'm not going to go there.
Q. Why?
A. Because he’s not present maybe he wouldn't want me to give his last name.
Q. | realize he's not present. But I don't understand why you wouldn't want to tell
me who your partner was in a business.
MR. GOODMAN: Objection; relevance.
THE COURT: Here's what I'm going to say, 1 know that my jury's lunches have
come in the back and I'm just going to try to find out, maybe I can. Let's find out
what the name is and then let Mr. Timmonds know what we are doing here.
Because I'm not sure -- I will tell my jury that, obviously, he's being asked some
questions and I don't know whether there is some privilege or privacy for this Mr.
Dave person that he may have. People do have privileges. I don't know what they
are. So there may be some things that I need to ask and so what I'm going to ask
my jury to do is take a 20-minute break.!”°
Plaintiff's counsel objected and defense counsel explained that the questioning was to understand
the areas in which Plaintiff previously worked in order to demonstrate his general knowledge of
the industry and familiarity with heavy machinery, like the at-issue tractor. This questioning
related to his work history and business partner did not reference or infer anything about prior
convictions or bad acts. Any negative inferences to be drawn from Plaintiff's testimony were
created by his own evasive manner and/or refusal to answer particular questions. Moreover, in
25, N.T. 6/6/2018 at 87-93.
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fem cae et EE Fite AR ere eae UE sO gS eck Ia EN EEE AE AA ee
addressing the objection outside of the presence of the jury, this Court preemptively instructed
defense counsel that Plaintiff had not opened the door to questioning about his criminal record,
thereby preventing any improper inquiry of the witness.!”° Accordingly, Plaintiff's claim that
this Court erroneously admitted evidence of prior bad acts is unsupported by the record and did
not constitute a violation of Pa.R.E. 404(b) or this Court’s pre-trial rulings.
CONCLUSION
For the reasons set forth in this Opinion, Plaintiff's Post-Trial Motion for a New Trial is
DENIED.
THE CQURT:
ae
CARPENTER, J.
26 See N.T. 6/6/2018 at 104-107 (providing argument and ruling related to Plaintiff's criminal record).
60