                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2008

Harold v. Black Decker US
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1674




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"Harold v. Black Decker US" (2008). 2008 Decisions. Paper 403.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/403


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-1674


                     MATTHEW P. HAROLD; LINDA HAROLD,
                                  His Wife

                                           v.

                             BLACK & DECKER U.S., INC.;
                      DEWALT INDUSTRIAL TOOL COMPANY;
                   ABC CORPORATION, 1-5 (representing presently
               unknown manufacturers, designers, distributors, assemblers,
             testers, servicers/repairers, inspectors, and/or sellers of the tool
       in question; XYZ CORPORATION, 6-10 (unknown entities who removed
                            any warnings and/or safety devices)

                            BLACK & DECKER U.S., INC.,

                                                        Appellant


                    On Appeal from the United States District Court
                           for the District of New Jersey
                              (D. C. No. 04-cv-02427)
                         District Judge: Hon. Patty Shwartz


                                Argued on May 13, 2008

                      Before: McKEE and ROTH, Circuit Judges
                              PADOVA*, District Judge

                            (Opinion filed : October 7, 2008)




      *Honorable John R. Padova, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
David R. Kott, Esquire (ARGUED)
McCarter & English
100 Mulberry Street
Four Gateway Center
Newark, NJ 07102-0652

                     Counsel for Appellant


Adam L. Rothenberg, Esquire (ARGUED)
Levinson Axelrod
2 Lincoln Highway
P. O. Box 2905
Edison, NJ 08818

                     Counsel for Appellee




                                       OPINION


ROTH, Circuit Judge:

       Black & Decker (U.S.) Inc., appeals from an adverse jury verdict in a products

liability case. Black & Decker argues that the District Court erred in excluding its evidence

of lack of prior accidents involving the product in question and in its jury instructions. We

conclude that the proffered evidence was admissible.        We will, therefore, vacate the

judgment of the District Court and remand this case for a new trial.

I. BACKGROUND

       Because we write primarily for the benefit of the parties, we will only briefly review

the facts and the proceedings below.

       Matthew Harold was injured while using a DeWalt Model DW568 Rotary Hammer,



                                             2
which was designed and manufactured by Black & Decker. Harold was standing on a ladder

and using the DW568 to drill a hole in a concrete ceiling when the bit bound up.1 As a result,

Harold fell off the ladder and suffered two broken fingers. The parties did not agree on the

underlying cause of the accident.

        During trial, Black & Decker offered into evidence records which showed a lack of

prior accidents involving the DW568. The records consisted of two electronic databases:

a thirteen month record of every phone call to a customer complaint hotline and a record of

every claim of loss filed against Black and Decker in the last twelve years. Harold opposed

the admission of this evidence. The District Court excluded it as more prejudicial than

probative.

        Following trial, the jury found in response to special written interrogatories that the

product was defective because it was sold with inadequate warnings. The jury awarded

$492,548.38 to Harold for medical costs, lost income, and pain and suffering. After its

request for a new trial was denied, Black & Decker appealed.

        The District Court had jurisdiction over this case under 28 U.S.C. § 1332. We have

jurisdiction over the final order of the District Court pursuant to 28 U.S.C. § 1291. We

review the District Court’s decision to exclude the proffered evidence for abuse of discretion.

Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir. 2007).

II. DISCUSSION

        Black and Decker asks us to reverse the verdict against it because of the exclusion of



    1
    Binding occurs when the drill bit fails to clear the hole being drilled and concrete
material builds up in the hole, “jamming” the bit.

                                               3
the evidence of lack of prior accidents and because of the phrasing of the jury charge.

Because we find in favor of Black and Decker on the question of the exclusion of evidence,

we need not reach the issue of the jury charge.

          The admissibility of evidence of prior accidents turns on the question of whether its

probative value outweighs its prejudicial effect. Forrest v. Beloit Corp., 424 F.3d 344, 354

(3d Cir. 2005). Generally, the defendant must establish a foundation for admissibility that

shows “(a) similarity–the defendant must show that the proffered testimony relates to

substantially identical products used in similar circumstances; (b) breadth–the defendant

must provide the court with information concerning the number of prior units sold and the

extent of prior use; and (c) awareness–the defendant must show that it would likely have

known of prior accidents had they occurred.” Id. at 358. This burden will be satisfied when,

as here, a company has maintained a comprehensive database of claims made and lawsuits

brought against itself and its subsidiaries. Moyer, 473 F.3d at 546-47.2 Since Black and

Decker has sold thousands of rotary hammers functionally identical to the DW568 at issue

here, the proffered testimony was admissible, and its exclusion was error under Moyer. Id.

at 547.

III. CONCLUSION

          For the foregoing reasons, we will vacate the judgment entered by the District Court

and remand this case for a new trial.




   2
     We note that the District Court did not have the benefit of the guidance provided by
Moyer, as the decision in that case was published after the District Court’s exclusion of the
proffered evidence.

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