                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-1995

Barker v Deere & Company
Precedential or Non-Precedential:

Docket 94-3524




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                             No. 94-3524



            DAVID C. BARKER and CHRISTINA L. BARKER,
                         Husband/Wife,

                                 v.

                        DEERE AND COMPANY,

                                           Appellant



         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                      (D.C. No. 91-cv-01383)


                       Argued May 18, 1995

        Before:   COWEN, LEWIS and SAROKIN, Circuit Judges

                     (Filed    July 24, l995 )

Gary F. Sharlock
Robert D. Leidigh
David P. Helwig (argued)
Sharlock, Repcheck & Mahler
600 Grant Street
3280 USX Tower
Pittsburgh, PA 15219

     COUNSEL FOR APPELLANT
     Deere and Company

Dallas W. Hartman (argued)
Dallas W. Hartman, P.C.
2815 Wilmington Road
New Castle, PA 16105

     COUNSEL FOR APPELLEES
     David C. Barker
     Christina L. Barker


                                 1
                               OPINION


COWEN, Circuit Judge.


          In this appeal of a personal injury action arising out

of injuries caused by an allegedly defective tractor, we are

asked to decide whether the district court erred: (1) in allowing

plaintiffs to introduce evidence concerning a history of tractor

rollovers when the accident at issue did not involve a tractor

rollover, and (2) in denying defendant's motion for judgment as a

matter of law and allowing plaintiff's strict liability case to

reach the jury.    We conclude that the district court did not err

in denying the defendant's motion for judgment as a matter of law

and in allowing this case to proceed to the jury.     However,

because the district court did err in admitting irrelevant

evidence and because that evidentiary error was not harmless, we

will vacate the judgment of the district court and remand to the

district court for retrial.



                  I. FACTUAL AND PROCEDURAL HISTORY

          On September 21, 1989, plaintiff David Barker

("Barker")0 was operating his John Deere Model 620 ("Deere 620")

tractor while working on his farm in Slippery Rock, Pennsylvania.
0
 Christina Barker, David's wife, was also a party in the suit,
claiming damages for past and future loss of services,
companionship, and consortium. For purposes of this appeal, both
David and Christina Barker will be referred to collectively as
"Barker," unless it is necessary to distinguish between the two.

                                 2
He was using the tractor to tow several large logs from a lower

field to his farmhouse to be split and chopped for firewood.      He

hauled the logs by backing the tractor up to the log, securing

the log to the tractor using a 15 foot chain which was attached

to the tractor's drawbar, and then putting the tractor in forward

gear to drag the log.    Barker completed several successful trips,

and then backed the tractor to a log that was 16 to 18 inches in

diameter and 20 feet long.    After his stepfather hooked the log,

Barker turned forward, and began to tow the log.    At this point,

the front end of the log became stuck in the ground, causing the

rear end of the log to rise in the air and flip over in a pole-

vault type fashion, striking Barker from behind on his left

shoulder.    Barker was ejected from his seat and thrown to the

ground where he was then run over by the tractor.    As a result of

the accident, he suffered serious injuries including broken ribs,

punctured lungs, a broken leg, and injuries to his back and

shoulder.

            Barker filed a complaint on August 19, 1991, and

thereafter an amended complaint in the United States District

Court for the Western District of Pennsylvania against Deere and

Company ("Deere").    He alleged inter alia, that the Deere 620

tractor0 was defective because at the time of manufacture it

lacked an operator protective system ("OPS") to protect him from

0
 During the mid-to-late 1950's, Deere designed and produced the
John Deere 600 line of tractors, including the Deere 620 tractor.
This model was produced from 1956 until 1958 and was designed
primarily for agricultural use. The Deere 620 did not come
equipped with a structure to protect the operator from tractor
rollovers, or from falling objects.


                                 3
objects which intruded into the operator area, and because Deere

later failed to retrofit the tractor with such a system.0   App.

at 43-44.   The case was tried before a jury.   At the close of

Barker's case and again at the close of all the evidence, Deere

moved pursuant to Rule 50 of the Federal Rules of Civil Procedure

for judgment as a matter of law, relying on Azzarello v. Black

Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), and Fitzpatrick v.

Madonna, 424 Pa. Super. 473, 623 A.2d 322 (1993).   These cases

explain that the trial judge is initially responsible for

determining whether a strict products liability case should be

submitted to the jury.    The district court denied Deere's motion

on both occasions.

            The jury concluded that the Deere 620 tractor was

defective and that the defect was a substantial factor in causing

Barker's injuries.    It returned an award of damages in the amount

of $317,753.00 to David Barker but awarded no damages to

Christina Barker for loss of consortium.   After the verdict was

entered, Deere filed a motion for a new trial pursuant to Rule 59

0
 In a typical products liability action in Pennsylvania, a
plaintiff must show: (1) the product was defective; (2) the
defect existed while the product was in the control of the
manufacturer; and (3) the defect was the proximate cause of the
injuries. Habecker v. Clark Equipment Co., 36 F.3d 278, 284 (3d
Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1313 (1995),
(citing Walton v. Avco Corp., 530 Pa. 568, 576-77, 610 A.2d 454,
458-59 (1992)). However, to establish a cause of action based on
a theory of crashworthiness, the claim asserted here, a plaintiff
must show: (1) the design of the product was defective; (2) when
the design was made, an alternative, safer design, practicable
under the circumstances existed; (3) what injuries, if any, the
plaintiff would have received had the alternative, safer design,
been used; and (4) what injuries were attributable to the
defective design. Habecker, 36 F.3d at 284.


                                 4
of the Federal Rules of Civil Procedure and renewed its motion

for judgment as a matter of law.     The district court denied both

motions.   Deere appeals that order, arguing that the district

court made several errors in ruling on the admissibility of

evidence, and further arguing that this strict products liability

case should not have been submitted to the jury.



                          II. JURISDICTION

           The district court had jurisdiction to entertain this

matter pursuant to 28 U.S.C. § 1332 (diversity jurisdiction).      We

have jurisdiction pursuant to 28 U.S.C. § 1291, which confers

jurisdiction upon all final orders of the district courts.



                       III. STANDARD OF REVIEW

           We ordinarily review a trial court's decision

concerning the admissibility of evidence under an abuse of

discretion standard.   Glass v. Philadelphia Electric Co., 34 F.3d

188, 191 (3d Cir. 1994) (citing In re Japanese Electronic

Products, 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other
grounds, Matsushita Electronic Industrial Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986)).    Likewise,

"we review the district court's decision to include or exclude

evidence arising under the Federal Rules of Evidence 401, 402 and

403 for an abuse of discretion."     Id. (citing Pfeiffer v. Marion

Center Area Sch. Dist., 917 F.2d 779, 781-82 (3d Cir. 1990)).

However, when this court reviews a ruling on the admissibility of

evidence which turns on an interpretation of a Federal Rule of


                                 5
Evidence, our review is plenary.      In Re Paoli R.R. Yard PCB

Litigation, 35 F.3d 717, 749 (3d Cir. 1994) (citing DeLuca v.

Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 944 (3d Cir.

1990)).

           The question of whether a strict products liability

case in Pennsylvania should be submitted to the jury is a

question of law.    Fitzpatrick, 424 Pa. Super. at 475, 623 A.2d at

324 (citing Azzarello, 480 Pa. at 558, 391 A.2d at 1026); see

also Nowak v. Faberge USA, Inc., 32 F.3d 755, 757 (3d Cir. 1994)

(noting that the Supreme Court of Pennsylvania has explicitly

held the determination that a product is defective is initially a

question of law to be answered by the trial judge).



                            IV. DISCUSSION

          A.   Legal Relevance of Previous Tractor Rollovers

           Deere contends that it was severely prejudiced at trial

when Barker was permitted repeatedly to place into evidence facts

and statements concerning the history of other farm accidents

and, in particular, tractor rollovers.       Barker claims that this

evidence was offered to prove that: (1) the Deere 620 tractor was

defective on the theory that it did not possess an OPS to protect
the operator from the consequences of rollovers, Appellee's brief

at 12; and (2) the OPS was an alternative, safer design,

practicable (or feasible) under the circumstances,0 id. -- two

0
 Barker offers a third justification for admission of tractor
rollover evidence, namely it was relevant to prove that the
placement of the OPS on the Deere 620 presented no mechanical
incompatibility. As noted in Habecker, 36 F.3d at 286,


                                  6
elements which must be proven in order to succeed under a theory

of crashworthiness.   See supra n.3.    Deere maintains that

evidence concerning tractor rollovers, and injuries and deaths

caused by those rollovers, was not relevant to any issue in this

case which did not involve a tractor rollover.

          Specifically, Deere objected to the testimony of John

Sevart ("Sevart"), Barker's expert witness, who testified to the

following: (1) in 1950, and increasing at a rate of 40 to 50 a

year for the remainder of the decade, there were approximately

640 tractor deaths to farmers; App. at 265; (2) approximately 60%

of the fatalities were caused by rollover accidents; App. at 266;

(3) approximately 30% of the fatalities occurred as a result of

the operator being ejected out of the seat and run over or being

struck by a falling object; App. at 266; and (4) for every

operator killed during this time span, an additional 40 people

were injured; App. at 267.

          Rule 401 of the Federal Rules of Evidence states:
          "Relevant evidence" means evidence having any
          tendency to make the existence of any fact
          that is of consequence to the determination
          of the action more probable or less probable
          than it would be without the evidence.

Fed. R. Evid. 401.    Rule 402 of the Federal Rules of Evidence

states in relevant part, "[e]vidence which is not relevant is not

admissible."   Fed. R. Evid. 402.    We now turn to analysis of

whether evidence of rollover accidents is relevant to prove: (1)


"mechanical incompatibility" is an element which points to a lack
of feasibility, and this is incorporated in Barker's second
asserted justification for admission of evidence of rollover
accidents.


                                 7
a design defect; and (2) that an alternative, safer, feasible

design existed.

          In assessing whether evidence proffered as direct proof

of a design defect is relevant in a products liability

(crashworthy) case, we observe:
          In the appropriate circumstances, evidence of
          prior occurrences and accidents involving a
          product which is identical or substantially
          similar to the product which has allegedly
          caused an injury has generally been held to
          be admissible at trial. [S]uch evidence may
          be considered by the trial court for
          admission in . . . strict liability . . .
          actions. The almost universal requirement,
          however, is that the prior occurrence must
          involve facts and circumstances which are
          substantially similar to those involved in
          the case under consideration or they will be
          excluded.

2A Louis Frumer & Melvin Friedman, Products Liability § 18.02[1],

at 18-14 to 18-17 (1995) (footnotes omitted) (emphasis added).

          We note that every court of appeals to have considered

this issue agrees that when a plaintiff attempts to introduce

evidence of other accidents as direct proof of a design defect,
the evidence is admissible only if the proponent demonstrates

that the accidents occurred under circumstances substantially

similar to those at issue in the case at bar.   See Burke v. Deere

& Co., 6 F.3d 497, 506 (8th Cir. 1993), cert. denied, __ U.S. __,

114 S. Ct. 1063 (1994); Lockley v. Deere & Co., 933 F.2d 1378,

1386 (8th Cir. 1991); Joy v. Bell Helicopter Textron, Inc., 999

F.2d 549, 554 (D.C. Cir. 1993); Ross v. Black & Decker, Inc., 977

F.2d 1178, 1185 (7th Cir. 1992), cert. denied, __ U.S. __, 113 S.

Ct. 1274 (1993); Cooper v. Firestone Tire and Rubber Co., 945



                               8
F.2d 1103, 1105 (9th Cir. 1991); Anderson v. Whittaker Corp., 894

F.2d 804, 813 (6th Cir. 1990); Hessen v. Jaguar Cars, Inc., 915

F.2d 641, 649 (11th Cir. 1990); Melton v. Deere & Co., 887 F.2d

1241, 1245 (5th Cir. 1989); Wheeler v. John Deere Co., 862 F.2d

1404, 1408 (10th Cir. 1988);   McKinnon v. Skil Corp., 638 F.2d

270, 277 (1st Cir. 1981); cf. Estate of Carey v. Hy-Temp Mfg.,

Inc., 929 F.2d 1229, 1235 n.2 (7th Cir. 1991) ("[W]e caution that

`substantially similar' does not mean `identical.'").

          This foundational requirement of establishing

substantial similarity is especially important in cases where the

evidence is proffered to show the existence of a design defect.

See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268-69

(7th Cir. 1988).   In such cases, the jury is invited to infer

from the presence of other accidents that a design defect existed

which contributed to the plaintiffs' injuries.   See id. at 1269;

see also C.A. Associates v. Dow Chemical Co., 918 F.2d 1485, 1489

(10th Cir. 1990) (noting that in "a product liability action, the

occurrence of similar accidents or failures involving the same

product holds great relevance, since evidence of such failures

tends to make the existence of a defect more probable than it

would be without the evidence").

          We observe that the district court must be apprised of

the specific facts of previous accidents in order to make a

reasoned determination as to whether the prior accidents are

"substantially similar."   Absent such a foundation, it is

impossible for the district court in the first instance, and for

this court on appeal, to review the facts in order to make a


                                9
determination as to similarity.    See Hardy v. Chemetron Corp.,

870 F.2d 1007, 1009 (5th Cir. 1989) (upholding the trial court's

refusal to admit evidence because there was a "total lack of

evidence on the crucial question of substantial similarity");

Nachtsheim, 847 F.2d at 1269 (7th Cir. 1988) ("[T]here are too

few established facts about the [prior] accident from which a

comparison between the two accidents can be made.") (emphasis in

original); Lewy v. Remington Arms Co., 836 F.2d 1104, 1109 (8th

Cir. 1988) (plaintiff's counsel "failed to lay an adequate

foundation" to show that other evidence was similar); McKinnon,

638 F.2d at 277 (1st Cir. 1981) ("The record is totally devoid of

[a] showing of the circumstances under which these accidents

occurred.") (footnote omitted).

          Our primary concern is that Barker has not presented

sufficient evidence which could lead the district court to

believe that the prior accidents were in any way similar to the

case before us.   The record contained only raw numbers and

statistical extrapolations.   At most, we are able to discern from

the testimony of Barker's expert witness that approximately 190

persons (30% of 640 fatalities) were killed in tractor accidents

as a result of being: (1) ejected from the seat; (2) run over;

and/or (3) hit by a falling object.0   However, there are no

documented cases of an injury/death arising from an accident with

a Deere 620 tractor where an object entered the operator area and

0
 We question how the other 384 (60% of 640) fatalities that
resulted from tractor rollover accidents are similar, let alone
"substantially similar" to the case before us which did not
involve a tractor rollover.

                                  10
ejected the operator from his seat.    We hold Barker failed to

offer sufficient evidence to prove that any prior accident is

"substantially similar" to the accident which led to his

injuries.0

             Moreover, what scant evidence was admitted did not

contain any specific information with regard to the details of

any single accident.    All evidence of accidents where an object

entered the operator area was presented via the National Safety

Council statistics.    This evidence concerned tractors generally,

not specifically John Deere tractors and not Deere 620 tractors.

Furthermore, most of the evidence of fatalities was

characteristic of rollovers, and we are uncertain of the

specifics of any non-rollover accidents.    Barker was attempting

to prove a defect in the Deere 620 tractor by submitting evidence

of injuries/deaths and evidence of a possible defect in other

tractors that were involved in rollover accidents.    The jury was

invited to infer that over 500 lives per year would be saved if

there were a rollover bar on the Deere 620 tractor.    We fail to

comprehend how any of the prior accidents were "substantially

similar" to the case before us.    All of the evidence of prior

tractor accidents that was introduced as direct evidence of a



0
 Assuming arguendo that Barker was successful in proving that
some of the prior accidents were "substantially similar" to his
accident, we question how the introduction of death statistics
was relevant. As part of his case-in-chief, Barker was
attempting to show the feasibility of design of the operator
protective structure, not the need for such a device. The
existence of accidents and fatalities that occurred goes to prove
the need for the protective structure, not its feasibility.


                                  11
design defect should have been excluded as irrelevant pursuant to

Rule 402.

            Next, we address whether evidence of rollover accidents

is relevant to prove that an alternative, safer, feasible design

existed at the time of manufacture of the Deere 620 which would

have prevented or mitigated some of Barker's injuries.      In order

to prove this element of his claim, Barker must show that an OPS

design existed which would provide protection against the

recognized hazards that a tractor engages and also pose no

additional risk to the operator.       Habecker, 36 F.3d at 284-86.

The evidence presented at trial by Barker revealed that there

were three recognized hazards known prior to the manufacture of

the Deere 620: (1) injury from falling objects; (2) injury from

ejection from the operator seat; and (3) injury from tractor

rollovers.    Barker was thus obligated to prove that the OPS,

which he claims would have prevented the log from hitting and

ejecting him, would also have protected the operator in the event

of a rollover, the most common type of tractor accident.      Stated

differently, if Barker failed to prove that the proposed OPS did

not protect against rollovers, as well as against intrusions into

the operator area, then the proposed OPS would not be a safer

design.     Evidence of tractor rollover accidents would also enable

the jury to understand the necessity for the precise design of

the OPS.    Thus, evidence regarding the existence of tractor




                                  12
rollover accidents is relevant to proving one element of a

crashworthy case.0

          Our observation that Barker must prove that the OPS

provides protection in the event of rollover accidents in order

to satisfy that element of his claim does not necessarily mean

that all of the evidence of rollover accidents introduced at

trial was relevant.   Evidence of specific rollover accidents is

not relevant unless it is sufficiently related to the Deere 620.

That is, the evidence must be probative of the type of accidents

that would have influenced the designers of the Deere 620, had

they been designing an OPS for the Deere 620.   Instead, the

evidence at trial dealt with all accidents on all tractors during

the period leading up to the development of the Deere 620. Absent

a sufficient foundation for the premise that tractor designers

must examine accidents that affect other analogous products of

other manufacturers, evidence of all accidents on all tractors

during the development of the Deere 620 would not be sufficiently

probative of whether an OPS for the Deere 620 would have had to

protect against rollovers, as well as intrusions.   Because both

the volume of evidence regarding rollovers and the specific

introduction of estimated fatalities and injuries resulting from

0
 At a bare minimum, plaintiff must be allowed to introduce
general evidence which indicates there are three common types of
tractor accidents and that most accidents involving tractors were
of the rollover type. We do not foreclose or limit the
plaintiff's proofs in demonstrating that the alternative,
feasible, safer design must encompass protection against
intrusions, as well as ejections and rollovers. Some allusion to
rollover accidents is necessary in plaintiff's attempt to prove
that an alternative, feasible, safer design existed when the
product was manufactured.

                                13
rollover accidents involving other tractors was not relevant to

Barker's case, this evidence should have been excluded.0



                      B.   Harmless Error Analysis

             After concluding that the district court erred in

allowing Barker to introduce evidence of unrelated tractor

accidents, we must next inquire whether "it is highly probable

that the error did not affect the outcome of the case."      Lockhart

v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d Cir. 1989); see

McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924, 927-28 (3d

Cir. 1985).     We have explained that a non-constitutional error in

a civil case is harmless "unless a substantial right of the party

is affected."     Linkstrom v. Golden T. Farms, 883 F.2d 269, 269

(3d Cir. 1989) (quoting Fed. R. Evid. 103(a)).       We believe that

the error did affect the jury's verdict, and thus we are unable

to conclude that it is highly probable that the error did not

affect the outcome of the case.

             First, we note that the only question submitted to the

court by the jury during its deliberations revolved around the

very evidence that we earlier concluded should not have been

admitted.0     The fact that the jury requested the accident
0
  Alternatively, Deere argues that even assuming arguendo that the
evidence was relevant, the district court should have excluded
the evidence pursuant to Rule 403 of the Federal Rules of
Evidence because of the "danger of unfair prejudice." Fed. R.
Evid. 403. Because we conclude that the evidence was not
relevant and thus should not have been admitted pursuant to Rule
402, we need not decide whether Rule 403 would warrant the
exclusion of this evidence.
0
  The jury sent the following question to the judge, "Are we going
to have any of the other research available to us, e.g., accident

                                   14
statistics indicates that it was concentrating on this evidence

and demonstrates that the court's error in allowing this evidence

was not harmless.   Second, our conclusion is further supported by

the fact that Barker's opening statement and closing argument

contained references to tractor rollovers and other accidents

which were not similar to the incident in which Barker was

injured.   To the extent that Sevart's testimony regarding prior

accidents should not have been admitted, it was improper for

Barker's counsel to comment on that evidence.0   Finally, we are

also troubled by additional inflammatory comments made by Barker


statistics, studies on early ROPS [Rollover Protective Systems],
etc." App. at 806.
0
  Barker commented on Mr. Sevart's testimony as follows:

           The evidence will show you that operator protection
           systems, such as that [] we're going to show you, would
           save in excess of 500 lives a year. That's 500 lives a
           year for as long back as [Deere] would have put them
           on.

App. at 183.

           Mr. Sevart testified that in 1950, according to the
           National Safety Council, which their expert has deemed
           to be an authoritative source on statistics, 640 people
           were killed on tractors. Of those 640 people, 90
           percent were killed either by being ejected off the
           tractor, being struck by a falling object, or being
           hit, hurt in a tractor rollover.
                Now, of that, 576 individuals, Mr. Sevart said
           one-third of that, 576 -- those 576 people were, 190
           people were killed as a result of ejectment out of the
           seat, being run over or falling objects. [5]76 people
           per year in 1950, with the rate going up at a rate of,
           I believe he said 40 or 45 additional persons per year.
           In addition to those statistics from the National
           Safety Council, for every one reported fatality, there
           are 40 injuries.

App. at 733.

                                15
during opening statements and closing arguments regarding Deere's

alleged inaction in the face of documented injuries/deaths.0    We

conclude that the district court erred in admitting irrelevant

evidence of previous tractor rollover accidents, and that the

error was not harmless.



               C. Motion for Judgment as a Matter of Law

             Deere maintains that under the teaching of Azzarello,

480 Pa. at 558, 391 A.2d at 1026, as followed by later cases

0
    Barker commented as follows:

             The evidence will show that in 1956, the first year
             that this tractor was manufactured, a Model 620
             agricultural tractor, Deere had known for 30 years that
             hundreds of farmers were being killed, maimed and
             crippled throughout the United States and the rest of
             the industrialized world due to farm accidents.

App. at 179 (emphasis added).

             These things are killing people needlessly. People
             were being crushed, paralyzed and killed across the
             country needlessly. What did [Deere] do in 1950? Hear
             no evil, see no evil. That's what [Deere] did. [Deere]
             did nothing. The evidence is conclusive that in spite
             of this problem in 1950, Deere did nothing.

App. at 735 (emphasis added).

             [Y]ou're allowing [Deere] to get away with murdering
             and injuring people . . . .

App. at 756 (emphasis added). Although opening statements and
closing arguments are not "evidence," we are mindful of the
effect that the following statements may have had on the jury.
We pause here to comment that, aside from the fact that these
comments were founded on irrelevant and inadmissible evidence,
these remarks were inappropriate and inflammatory. Even though
the objection to "get away with murder[]" was sustained, the
statistical evidence on which the accusation was premised was
nonetheless admitted during the trial.


                                   16
including Fitzpatrick, 424 Pa. Super. at 475, 623 A.2d at 324,

this strict products liability case should not have been

submitted to the jury.   Deere argues that the district court

should have entered judgment as a matter of law in its favor,

since there was no evidence that a suitable protective structure

of the type advocated by plaintiffs existed at the time the

subject tractor was designed, manufactured, and under Deere's

control.   Deere concedes that evidence of the non-existence of a

safety device may not be properly considered by a jury, but

maintains that this evidence bears directly on the trial judge's

threshold determination of whether the case should even be

submitted to the jury.   Finally, Deere contends that to hold it

liable for failure to put an OPS on the Deere 620 at least ten

years before a practical OPS became available, in effect imposes

a duty to invent on manufacturers.

           In Azzarello, the Supreme Court of Pennsylvania held

that in a strict product liability action, before the case can be

placed before the jury, the trial judge must make a threshold

legal determination whether the defect alleged, if proven, would

render the product "unreasonably dangerous" as the term is

defined in the Restatement (Second) of Torts § 402A.     Azzarello,
480 Pa. at 558, 391 A.2d at 1026.    The court further stated,

"[i]t 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."     Id. at 558, 391 A.2d at 1026.


                                17
Recently, another Pennsylvania court in applying Azzarello added

the following:
          [T]he initial issue . . . is a question of
          law whose resolution depends upon social
          policy . . . . [I]n making a product
          liability social policy analysis, a court
          must possess the qualities of both a social
          philosopher and a risk-utility economic
          analyst. The court in such cases must
          balance the utility of the product against
          the seriousness and likelihood of injury and
          the availability of precautions that, though
          not foolproof, might prevent the injury.

Fitzpatrick, 424 Pa. Super. at 475-76, 623 A.2d at 324 (citations

and internal quotation marks omitted).    Furthermore, the court in

Fitzpatrick observed that factors to be considered when

undertaking this analysis include:    "[1] the gravity of the

danger posed by the challenged design; [2] the likelihood that

such danger would occur; [3] the mechanical feasibility of a

safer design; [4] the financial cost of a safer design; and [5]

the adverse consequences to the product that would result from a

safer design."    Id. at 476, 623 A.2d at 324 (quoting Dambacher by

Dambacher v. Mallis, 336 Pa. Super. 22, 50 n.5, 485 A.2d 408, 423

n.5 (Pa. Super. 1984) (citing Barker v. Lull Engineering Co., 20

Cal.3d 413, 431, 143 Cal. Rptr. 225, 237, 573 P.2d 443, 455

(1978))).

            Sevart testified that OPS's were first developed for

the logging industry prior to 1940 in order to provide protection

from falling objects.    He further explained that prior to 1956,

steel and welding techniques existed which could be used to

produce an OPS.    Additionally, Sevart testified that such an OPS

would not interfere with the utilization of the Deere 620 tractor


                                 18
and would accommodate 99 percent of all farm implements that

could be used with the Deere 620.    Finally, he stated that the

cost of manufacturing and installing an OPS in 1955 would have

been approximately $150.00 per tractor.

          Deere's expert testified that an OPS was not available

until the 1960's and, even then, incompatibility with existing

tractors was a major problem.   Deere maintains that there was

ample testimony presented at trial which indicated that the

placement of an OPS was not feasible because it would interfere

with tractor controls and farming implements.    Additionally,

Deere claims that the likelihood of another accident similar to

this one is "infinitesimal" as manifest by Barker's failure to

present evidence of any similar accident.

          When deciding whether to submit the "issue of defect to

a jury, the court must first view the evidence in the light most

favorable to the plaintiff to determine if a defect may be

found."   Burch v. Sear, Roebuck and Co., 320 Pa. Super. 444, 450-

451, 467 A.2d 615, 618-19 (Pa. Super. 1983) (citing Azzarello).

Examining the factors as listed in Fitzpatrick, we observe that

Barker proffered to the district court that:    (1) a tractor

without an OPS posed a danger to the operator; (2) it was not

uncommon for such a danger to occur; (3) the OPS was feasible;

(4) the cost was reasonable; and (5) the OPS would not be

incompatible with the tractor controls or its implements.    After

reviewing the evidence in the instant case, we are satisfied the

district court did not err in submitting this case to the jury.




                                19
            In so holding, we reject Deere's argument that a

district court, during its threshold determination, may consider

the nonexistence of a safety device as evidence of its

nonfeasibility.   Recently, in Habecker v. Clark Equipment Co., 36

F.3d 278 (3d Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct.

1313 (1995), a strict product liability (crashworthiness) case

involving a forklift, this Court was asked to decide a similar

issue.    In that case, the defense expert testified that at the

time of the manufacture of the forklift in 1977, there was no

acceptable operator restraint system ("ORS") that could have been

put on the forklift because the ORS was not developed until 1983

and patented until 1986.   Id. at 284-85.   We held that an attempt

to show that an ORS developed in 1983 was not in existence in

1977, and therefore not feasible, was "unequivocally

impermissible in a Pennsylvania products liability trial."     Id.

at 285.   We stated three more times in Habecker that evidence of

the non-existence of a safety feature could not be introduced to

suggest that the device was not feasible at the earlier date. See

id. at 286 ("The fact that the 1983 ORS did not exist in 1977 . .

. does not mean that it was incapable of being placed on the

[forklift] in 1977 if it did in fact exist."); id. (like
feasibility, the "practicable under the circumstances" element

bars the admission of evidence the defendant would like to

present regarding the nonexistence of the 1983 ORS); id. at 287

(in suggesting the device was not feasible, "the defendants may

not counter with evidence that the 1983 ORS was not in existence

at the time of manufacture").    In light of such explicit and


                                 20
repetitive language as well as the public policy considerations

of Pennsylvania,0 we perceive no reason to limit Habecker and

allow the trial court to consider the nonexistence of a safety

device.

             Furthermore, we reject Deere's contention that holding

a manufacturer liable for failing to place a safety device on a

product when the safety device did not exist at the time of

manufacture of the product would impose a "duty to invent" on

manufacturers. In Habecker, we stated:
          Pennsylvania's public policy is to encourage
          manufacturers to make their products as safe
          as possible, as soon as possible. It is the
          jury's prerogative to hold a manufacturer
          responsible for not more aggressively
          researching and implementing safety devices.

Id. at 286.     This statement reflects Pennsylvania's concerted

effort to ensure that products that reach its market are as safe

as possible, and we believe that allowing a manufacturer to

challenge feasibility of a device by arguing non-existence of the

device will hinder this goal.     We do not interpret Pennsylvania's

policy to create a duty for manufacturers to invent or else risk
being held liable.



                            V.   CONCLUSION

             We conclude that the district court committed no error

of law in allowing the case to proceed to the jury, but erred in

allowing the admission of irrelevant evidence.    Because we

determine that the evidentiary error was not harmless, we will


0
    See discussion below.


                                  21
vacate the judgment of the district court and remand with

directions for a new trial consistent with this opinion.

            On remand, the district court must conduct a new trial

based on the principles as we have described here today and in

Habecker.    Additionally, unless the district court is provided

with specific, additional evidence which allows it to make a

finding that the previous accidents are "substantially similar"

to the case at bar, all evidence, statistical and otherwise,

pertaining to prior tractor accidents shall be inadmissible as

not relevant.    Assuming that Barker lays an adequate foundation

for the introduction of evidence of rollover accidents, we offer

the following guidance to the district court to limit the amount

and detail of this evidence: (1) no evidence regarding the number

of deaths and injuries due to any of these types of accidents

shall be admitted; and (2) Barker should not be permitted to

argue that Deere would have saved an estimated number of lives

and prevented an estimated number of injuries had it developed an

OPS for the Deere 620 back in 1956.

            However, even if the district court is able to conclude

that any of the accidents are relevant, the court should proceed

to analyze the evidence under Rule 403 of the Federal Rules of

Evidence to eliminate the danger of unfair prejudice.    Costs

taxed against appellees.




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