                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2003

Calhoun v. Yamaha Motor Corp
Precedential or Non-Precedential: Precedential

Docket No. 02-4098




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                         PRECEDENTIAL

                             Filed November 18, 2003

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


             Nos. 02-4098 & 02-4162


    LUCIEN B. CALHOUN; ROBIN L. CALHOUN,
     Individually and as Administrators of the
      Estate of Natalie K. Calhoun, Deceased
                        v.
  YAMAHA MOTOR CORPORATION, U.S.A.; YAMAHA
  MOTOR CO., LTD.; PALMAS DEL MAR COMPANY;
PALMAS DEL MAR, INC.; PALMAS YACHT CLUB, INC.;
 MARINA DE PALMAS YACHT CLUB, INC.; MAXXAM
   PROPERTIES, INC.; ABC CORPORATION(S); XYZ
PARTNERSHIP(S); CANDELERO HOTEL CORPORATION;
       MARINA DE PALMAS SHIPYARD, INC.
         Lucien B. Calhoun; Robin L. Calhoun,
         Individually and as Administrators of the
         Estate of Natalie K. Calhoun, Deceased,
                             Appellants at No. 02-4098
         Yamaha Motor Corporation, U.S.A.;
         Yamaha Motor Co., Ltd.,
                          Appellants at No. 02-4162

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
         D.C. Civil Action No. 90-cv-04295
             (Honorable Louis H. Pollak)

              Argued: July 29, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO,
                   Circuit Judges
                             2


                (Filed: November 18, 2003)
                      DAVID F. BINDER, ESQUIRE
                       (ARGUED)
                      A. ROY DeCARO, ESQUIRE
                      Raynes, McCarty, Binder, Ross &
                       Mundy
                      1845 Walnut Street, Suite 2000
                      Philadelphia, Pennsylvania 19103
                        Attorneys for Appellants/Cross-
                        Appellees, Lucien B. Calhoun;
                        Robin L. Calhoun, Individually and
                        as Administrators of the Estate of
                        Natalie K. Calhoun, Deceased
                      JAMES P. DONOVAN, ESQUIRE
                       (ARGUED)
                      Wilson, Elser, Moskowitz, Edelman
                       & Dicker
                      150 East 42nd Street
                      New York, New York 10017
                      JONATHAN DRYER, ESQUIRE
                      Wilson, Elser, Moskowitz, Edelman
                       & Dicker
                      The Curtis Center, Suite 1130 East
                      Sixth and Walnut Streets
                      Philadelphia, Pennsylvania 19106
                        Attorneys for Appellees/Cross-
                        Appellants, Yamaha Motor
                        Corporation, U.S.A. and Yamaha
                        Motor Co., Ltd.


                OPINION OF THE COURT

SCIRICA, Chief Judge.
  In this products liability claim under maritime law, a jury
rendered a defense verdict. The principal issue on appeal is
the proper application of Federal Rule of Evidence 702 to
the proffered testimony of plaintiffs’ experts.
                             3


                             I.
  Because this matter has been twice before our court, see
Calhoun v. Yamaha Motor Corp., U.S.A., 40 F.3d 622 (3d
Cir. 1994); Calhoun v. Yamaha Motor Corp., U.S.A., 216
F.3d 338 (3d Cir. 2000), and also before the Supreme
Court, see Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199 (1996), its tragic facts have been well documented. But
we detail certain facts as they relate to the matters
currently under appeal.
  In June 1989, twelve-year-old Natalie Calhoun was
vacationing with her friend, thirteen-year-old Melanie Fox,
and Melanie’s family at the Palmas del Mar resort in Puerto
Rico. On June 6, Melanie’s mother, Corinne Fox, gave
permission to the girls to rent a jet ski at the marina.
Melanie and Natalie rented a Yamaha Wavejammer
WJ500G Personal Water Craft from nineteen-year-old
Samuel Roffe, a beach concessionaire at the Palmas del
Mar resort. Affixed to the jet ski was a warning that the
minimum recommended age for operation was fourteen.
Neither girl had ridden a jet ski before.
  In Natalie’s presence, Roffe gave Melanie ten minutes of
instruction. No parents or guardians were present at this
time. While Melanie was riding the jet ski, her mother
arrived at the marina. Roffe assured Mrs. Fox that riding
the jet ski was “safe.” After Melanie’s uneventful thirty
minute ride, she reported that the jet ski was “fun” and
“easy.”
  When it was Natalie’s turn, she was uncertain and
expressed doubts. Mrs. Fox left the decision to Natalie, and
eventually, she elected to ride. Roffe asked Natalie whether
she was the requisite fourteen years of age, and she
responded affirmatively. Roffe then gave her the same
instructions given to Melanie. Natalie mounted the machine
and began her ride in the lagoon near the resort.
  Unlike Melanie, however, Natalie struggled and fell off
while attempting to turn. Alarmed by this development,
Mrs. Fox urged Roffe to “bring her back.” Roffe rode out to
Natalie in another jet ski, but by the time he reached her,
she had remounted and assured him she was “okay.”
Natalie restarted the jet ski, made a sudden turn, and
                                   4


planed at high speed across the lagoon toward an anchored
boat. As she approached the boat, she screamed but did
not appear to attempt to veer away. Roffe testified she
appeared “frozen” and “scared stiff.” Tragically, Natalie
crashed into the boat and died from massive head and neck
trauma.
  Natalie’s parents, Lucien and Robin Calhoun, brought
suit against Yamaha Motor Company, Ltd. and Yamaha
Motor Corporation, U.S.A., the manufacturer and
distributor of the jet ski.1 The Calhouns asserted several
bases for recovery, including strict liability, negligence, and
breach of implied warranties of merchantability and fitness
for a particular purpose. Plaintiffs focused on an alleged
defect with the design of the jet ski’s accelerating
mechanism, which is referred to as a “squeeze finger
throttle” and resembles the braking mechanism on a
bicycle. Plaintiffs also alleged the warnings were
inadequate. The warning on the foot well of the jet ski
provided in part:
     3.   MINIMUM RECOMMENDED OPERATOR AGE: 14
     A MINOR USING THIS WATER VEHICLE REQUIRES
     CLOSE ADULT SUPERVISION. CHECK FEDERAL/
     STATE LAWS FOR MINIMUM AGE REQUIREMENTS.
After several appeals, the suit went to trial.2 A jury
rendered a verdict for defendants.
   At trial, the District Court made several rulings that
plaintiffs challenge on appeal. Although the District Court
permitted plaintiffs’ three expert witnesses to testify, it
limited the extent of their testimony. Moreover, the District
Court refused to submit the negligence claims to the jury,
holding that plaintiffs could proceed only on their strict
liability claims.3 Furthermore, in jury interrogatories4 and

1. The Calhouns brought suit individually and as administrators of their
daughter’s estate. Yamaha Motor Company, Ltd. and Yamaha Motor
Corporation, U.S.A. are collectively referred to as Yamaha.
2. Of note, we determined that “federal maritime standards govern the
adjudication” of Yamaha’s liability. Calhoun, 216 F.3d at 351.
3. At the close of evidence, Yamaha moved for judgment as a matter of
law under Fed. R. Civ. P. 50 on both the negligence and strict liability
claims. The District Court granted the motion as to the negligence claims
but denied it as to the strict liability claims.
4. The interrogatories first asked the jury to determine whether the jet
                                     5


instructions,5 the District Court applied comparative fault

ski had a defective design and/or a defect due to an inadequate warning,
which was a substantial factor in causing Natalie’s death. Only if the
jury determined that the jet ski was defective in such manner was the
jury to proceed to the interrogatories concerning Roffe and Palmas del
Mar. These latter interrogatories asked:
    5.   Do you find that Samuel Roffe and/or Palmas del Mar were
         negligent?
            Yes___     No___
    6.   Do you find that the negligence of Samuel Roffe and/or Palmas
         del Mar was a substantial factor in causing Natalie Calhoun’s
         death?
            Yes___     No___
    7.   Having found that Yamaha manufactured and sold a defective
         Wavejammer that was a substantial factor in causing Natalie
         Calhoun’s death, and that the negligence of Samuel Roffe
         and/or Palmas del Mar was a substantial factor in causing
         Natalie Calhoun’s death, what do you find to be the relative fault
         of those substantial factors? You are to express this conclusion
         in percentages, and the total must be 100%.
         Defect(s) of Yamaha Wavejammer:                              ___%
         Negligence of Samuel Roffe and/or Palmas del Mar:            ___%


            Total:                                                   100%
5. The court instructed the jury:
      It is for you, the jury, to determine whether the Wavejammer was
    defective and whether any defect was a substantial factor in causing
    Natalie Calhoun’s death. If you should determine that her injuries
    were so caused, you will have two additional issues to consider.
      First, you will be responsible for determining whether Samuel
    Roffe and/or [Palmas del Mar], neither of whom, of course, is a party
    to this litigation, were negligent. And whether that negligence also
    was a substantial factor in causing Natalie Calhoun’s death.
      And if the answer to that question is in the affirmative, you will
    also have to apportion the fault between Yamaha, Samuel Roffe, and
    [Palmas del Mar] in percentage terms.
                                    6


principles and conditionally asked the jury to consider the
negligence of two non-parties to the suit.
  The jury returned a verdict in favor of Yamaha on the
strict liability claims. The Calhouns appeal, arguing that
errors made by the District Court require reversal and a
new trial.6 Yamaha cross-appeals, contending the District
Court should have precluded the testimony of plaintiffs’
experts altogether and granted its motion for summary
judgment.

                                    II.
   Plaintiffs proffered three expert witnesses to testify at
trial. After conducting extensive Daubert hearings including
individual voir dire, the District Court determined that all
could testify but limited the extent of their testimony. We
review for abuse of discretion. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 138-39 (1997) (“[A]buse of discretion is the
appropriate standard” for “reviewing a trial court’s decision
to admit or exclude expert testimony.”).7
  Fed. R. Evid. 702 governs the admissibility of expert
testimony. The Rule provides:
     If scientific, technical, or other specialized knowledge
     will assist the trier of fact to understand the evidence
     or to determine a fact in issue, a witness qualified as
     an expert by knowledge, skill, experience, training, or
     education, may testify thereto in the form of an opinion
     or otherwise, if (1) the testimony is based upon
     sufficient facts or data, (2) the testimony is the product
     of reliable principles and methods, and (3) the witness
     has applied the principles and methods reliably to the
     facts of the case.

6. We have jurisdiction under 28 U.S.C. § 1291.
7. In regard to Defendants’ cross-appeal, we do not believe the District
Court abused its discretion in allowing plaintiffs’ experts to testify on a
limited basis. In any event, the District Court granted defendants’ motion
for judgment as a matter of law on the negligence claims, and the jury
returned a verdict in favor of defendants on the strict liability claims.
This outcome will not be disturbed. As such, any alleged error in
allowing plaintiffs’ experts to testify is without consequence.
                                  7


Fed. R. Evid. 702. Amended in 2000, Fed. R. Evid. 702
represents the logical outgrowth and memorialization of the
Supreme Court’s landmark cases establishing the
standards for admitting expert testimony.8 In Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court charged trial judges with the responsibility
of acting as “gatekeepers” to exclude unreliable expert
testimony, id. at 597, and in Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999), clarified that this “gatekeeper”
function applies not only to testimony based on “scientific”
knowledge but to testimony based on “technical” and “other
specialized” knowledge as well. Id. at 141.9
  We have addressed the requirements of Fed. R. Evid.
702, focusing on the “trilogy of restrictions on expert
testimony: qualification, reliability and fit.” Schneider v.
Fried, 320 F.3d 396, 405 (3d Cir. 2003). First, the witness
must be qualified to testify as an expert. Qualification
requires “that the witness possess specialized expertise.” Id.
“We have interpreted this requirement liberally,” holding
that “a broad range of knowledge, skills, and training
qualify an expert as such.” In re Paoli R.R. Yard PCB Litig.,
35 F.3d 717, 741 (3d Cir. 1994) (“Paoli II”). Second, the
testimony must be reliable. In other words, “the expert’s
opinion must be based on the ‘methods and procedures of
science’ rather than on ‘subjective belief or unsupported
speculation’; the expert must have ‘good grounds’ for his or
her belief.” Id. at 742 (quoting Daubert, 509 U.S. at 590).
An assessment of “the reliability of scientific evidence under
Rule 702 requires a determination as to its scientific
validity.” Id. Third, the expert testimony must “fit,” id. at
743, meaning “the expert’s testimony must be relevant for
the purposes of the case and must assist the trier of fact.”
Schneider, 320 F.3d at 405.

8. The Advisory Committee on Evidence Rules noted that Fed. R. Evid.
702 was amended in response to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and cases applying Daubert.
Fed. R. Evid. 702 advisory committee’s note.
9. Fed. R. Evid. 702 “affirms the trial court’s role as gatekeeper and
provides some general standards that the trial court must use to assess
the reliability and helpfulness of proffered expert testimony.” Fed. R.
Evid. 702 advisory committee’s note.
                              8


  Here, the dispute centers on the second element, whether
the proffered testimony of plaintiffs’ experts was reliable.
While defendants asserted the experts’ qualifications were
lacking in general, the thrust of their challenge was that
the proposed testimony did not derive from scientific
methods and procedures, but was simply unsupported
opinion. In this respect, the District Court held that certain
aspects of the experts’ proposed testimony lacked proper
foundation and was inadmissible.
  In determining whether testimony is reliable, we are
guided by several factors:
    (1) whether a method consists of a testable hypothesis;
    (2) whether the method has been subject to peer
    review; (3) the known or potential rate of error; (4) the
    existence and maintenance of standards controlling the
    technique’s operation; (5) whether the method is
    generally accepted; (6) the relationship of the technique
    to methods which have been established to be reliable;
    (7) the qualifications of the expert witness testifying
    based on the methodology; and (8) the non-judicial
    uses to which the method has been put.
Paoli II, 35 F.3d at 742 n.8. In assessing reliability, a court
need not rely exclusively on this list and may take into
account any other relevant factors, id. at 742; however, this
list provides an ample starting point.
  With this framework in mind, we examine each expert’s
proposed testimony. The District Court carefully and
thoughtfully restricted testimony that offered opinions on
specific matters without reliable foundation. For example,
the District Court declined to permit testimony on the
proper age requirement for jet ski operators, without any
specific support—such as studies or data indicating that
persons above a certain age are more capable of operating
the jet ski. While the background, education, and training
may provide an expert with general knowledge to testify
about general matters, more specific knowledge is required
to support more specific opinions.

                              A.
  Plaintiffs proffered Dr. Edward W. Karnes to testify that
the jet ski was defectively designed because riders would
                                  9


accidentally activate the throttle by clenching their hands
as a “stress reaction.” Plaintiffs also proffered Dr. Karnes to
testify that the warnings on the jet ski should have
restricted operation to those sixteen and older. The District
Court prevented Dr. Karnes from testifying on these
matters.
  Dr. Karnes holds a doctorate in experimental psychology
and is an emeritus professor of psychology at Metropolitan
State College in Denver. Among his specialties is human
factors engineering.10 He worked as a human factors
engineer at the Martin Marietta Corporation in Denver,
serving as the head of human factors research for six years.
Although defendants stress that Dr. Karnes has no degree
in engineering and lacks expertise in marine vessel design
or operations, the District Court qualified him as an expert
because of his extensive experience in general design and
operations.
   An expert may be generally qualified but may lack
qualifications to testify outside his area of expertise. The
District Court allowed Dr. Karnes to describe the squeeze
finger throttle on the jet ski and to testify that because of
the throttle’s similarity to a bicycle brake, a child in a
stress situation would naturally squeeze the mechanism in
order to stop the jet ski. Dr. Karnes’s other theory was not
permitted—that as a “stress reaction,” a person would have
a tendency to clench her hands, which would inadvertently
activate the squeeze finger throttle of a Yamaha jet ski.
Furthermore, Dr. Karnes was not permitted to offer an
overall conclusion that the design of the throttle was
defective.
  With respect to warnings, the District Court allowed Dr.
Karnes to testify in general about how to design an effective
warning. Dr. Karnes was also permitted to opine that the
warning on the jet ski deviated from the proper criteria,
making the “vehicle unreasonably dangerous and defective,
especially for youthful operators.” But the District Court
prohibited Dr. Karnes from testifying that, in addition to its

10. Dr. Karnes explained that human factors engineering “is concerned
with an evaluation of the human factors that are involved in the design
and use of products, equipment, and facilities.”
                             10


other alleged flaws, the warning on the jet ski should have
restricted operators to those sixteen and older because Dr.
Karnes did not have “anything to say to support that
number rather than a number higher or lower.”
  The District Court gave Dr. Karnes some leeway in
testifying about certain matters. Dr. Karnes’s general
knowledge of human factors engineering, along with his
review of the record evidence, provided an adequate basis
for his general description of the accelerating mechanism.
But there was no support for Dr. Karnes’s opinion on an
asserted “tendency” to clench hands as a “stress reaction.”
There was no literature confirming this theory, nor
demonstrable tests. Lacking support, his testimony was
speculative and unreliable. With no reliable foundation, the
District Court did not abuse its discretion by prohibiting
any conclusory statements on the throttle’s design.
  Similarly, Dr. Karnes’s general knowledge in the fields of
psychology and human factors engineering may allow him
to testify regarding proper warnings in general. But
proffering admissible testimony that the proper age for jet
ski use is sixteen or above requires more specific
knowledge. The District Court did not abuse its discretion
in prohibiting Dr. Karnes’s proffered opinion that sixteen
must be the minimum age.

                             B.
   Plaintiffs proffered Albert Bruton to testify that Yamaha’s
accelerating mechanism was not as safe as other
alternative designs and that Yamaha’s warning should have
limited operation to those sixteen and older. The District
Court refused to allow the proffered testimony.
  Bruton, a lieutenant for San Diego’s Marine Safety
Services for sixteen years, had extensive experience with jet
skis. He also had some experience designing warning signs
for public use, such as signs designating certain marine
areas for particular purposes, although he never designed
a warning label for a jet ski or any other product sold to the
public. Bruton had also conducted “aquatic related
accident” investigations. As defendants note, Bruton lacks
                             11


formal education or training in engineering, psychology, or
human factors.
   Bruton’s testimony was also restricted. The District Court
allowed Bruton to explain how jet skis operate and the
differences between Yamaha’s jet ski and other brands and
models. Bruton was also permitted to discuss various
accelerating mechanisms, explaining how each type works.
A videotape was played showing Bruton riding a jet ski. But
Bruton was prohibited from opining as to which jet skis,
and particularly which accelerating mechanisms, were safer
because the District Court found his “ranges of
experiences” did not give him the expertise or knowledge to
make this determination.
   The District Court permitted Bruton to testify about how
to frame an effective warning in general, for example, how
words should be arranged and lettered. But the District
Court prohibited him from opining on the proper substance
of a particular warning, including proposed testimony that
jet ski operations should be restricted to those sixteen and
older.
  These limitations were well considered. Because Bruton
was knowledgeable about different types of jet skis and
their operation, it was appropriate for him to explain such
matters to the jury. But as noted, Bruton had no education
or experience in product design of jet skis or accelerating
mechanisms; nor did he provide scientific, statistical or
other evidence evaluating the relative safety of different jet
ski models or their accelerating mechanisms. Bruton had
neither the general background nor the specific knowledge
to support his proffered testimony that the “squeeze finger
throttle” was less safe than other designs.
   With respect to warnings, Bruton was given much
leeway, especially considering he had never designed a
warning for any consumer product. As for his proffered
testimony on the specific substance of such warnings,
particularly the age requirement, Bruton offered no support
for his beliefs. His proffered opinions on these matters were
unreliable, and the District Court properly restricted such
testimony. There was no abuse of discretion.
                             12


                             C.
  Plaintiffs proffered Dr. Robert A. Warren to testify that
the accelerating mechanism was unsafe because it
resembled a bicycle brake and that Yamaha’s warnings
were inadequate. The District Court restricted Dr. Warren’s
testimony on these matters.
   Dr. Warren has a bachelor’s degree in naval architecture
and marine engineering, as well as higher degrees in other
fields. He worked with the Navy and the Department of
Defense and served as an accident reconstruction
consultant with a focus on marine engineering and boat
accidents. Defendants acknowledge that Dr. Warren’s
qualifications are generally sufficient, and the District
Court correctly held that his background qualified him to
testify as an expert.
   But as with the other experts, the District Court
restricted the specifics of Dr. Warren’s testimony. The
District Court allowed Dr. Warren to describe the squeeze
finger throttle on the jet ski but forbade his proffered
testimony that the throttle was unsafe particularly due to
its similarity to a bicycle’s braking mechanism. The District
Court also prohibited Dr. Warren from offering testimony
about warnings.
   Although Dr. Warren possessed expertise in relevant
fields, he failed to apply this expertise to the matter at
hand. At the time he wrote his expert report, Dr. Warren
had never operated a jet ski and, by the time of trial, had
only managed to ride a different model. Moreover, on voir
dire, Dr. Warren admitted he had never examined diagrams
of the different throttles used on jet skis. Dr. Warren’s
asserted knowledge of possible alternatives to the
accelerating mechanism came from his familiarity with
outboard motors, which employ a twist grip mechanism,
and from his recollection of a friend’s motorcycle, which
used a thumb throttle. Dr. Warren acknowledged he could
have conducted tests to evaluate the relative merits of
alternative throttle designs but did not do so. With such a
paucity of knowledge regarding the specifics of jet ski
accelerating mechanisms, Dr. Warren was unable to give
reliable testimony on whether Yamaha improperly employed
                              13


the squeeze finger throttle on its jet ski. Although Dr.
Warren had sufficient knowledge to describe the throttle
mechanism in general, the District Court properly
precluded him from giving further opinions on the matter.
  Similarly, Dr. Warren lacked any specific basis on which
to opine on the adequacy of Yamaha’s warnings. Moreover,
in contrast to his background in naval architecture and
marine engineering, which provided Dr. Warren the
foundation to testify generally about mechanical issues, he
possessed no expertise with regard to warning design.
Thus, the restriction on testimony regarding warnings was
proper. There was no abuse of discretion.

                             III.
  Plaintiffs contend that the District Court erred at the
close of evidence in granting defendants’ motion for
judgment as a matter of law on their negligence claims. See
Fed. R. Civ. P. 50. We exercise plenary review. See, e.g.,
Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143,
149 (3d Cir. 1998) (“This court utilizes a plenary standard
to review a grant . . . of a judgment as a matter of law.”).
  Negligence claims are cognizable in admiralty and may be
asserted in addition to strict liability claims. E. River S.S.
Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865-66
(1986). But the question here is whether plaintiffs’ evidence
supported these claims. The District Court explained that,
while the negligence claims were “there in the complaint,”
they “ha[d] not . . . survived in any real sense” during the
course of the trial. As such, the District Court held that the
negligence claims “ha[d] not been made out” and could not
be submitted to the jury.
   We agree. It is clear that the focus of the trial evidence
was on plaintiffs’ strict liability claims. Plaintiffs provided
only cursory theories of Yamaha’s alleged negligence and
offered scant support to sustain them. The negligence
claims should not have been submitted to the jury.
Judgment as a matter of law was proper.

                             IV.
  Plaintiffs argue the District Court erred in submitting to
the jury the possible comparative negligence of Roffe
                               14


and/or Palmas del Mar, neither of which were party to this
suit. According to plaintiffs, rules of joint and several
liability should govern, and the possible negligence of non-
parties cannot be considered. As plaintiffs allege an error of
law, our review is plenary. See, e.g., Harris v. City of
Philadelphia, 47 F.3d 1342, 1349 (3d Cir. 1995).
  Though we think it likely there was no error, given our
other rulings, any error would be harmless. It was harmless
because the court’s instruction could not have affected the
jury’s verdict on the strict liability claim, in that the jury
decided as a threshold matter, that the jet ski was not
defective. In instructing the jury, the District Court stated:
    Now, members of the jury, if and only if you decide
    that the Wavejammer was defective in a way that
    proximately caused Natalie’s death, you must then
    consider whether [Roffe and/or Palmas del Mar]
    committed negligent acts that contributed to the
    accident.
Furthermore, the interrogatories clearly provided that the
first issue to be considered was whether Yamaha’s jet ski
was defective. The possible negligence of Roffe and/or
Palmas del Mar mattered only if Yamaha were liable.
Because the jury found that the jet ski was not defective, it
never reached the possible negligence of Roffe and/or
Palmas del Mar.
   In this respect, the matter here is similar to that
addressed in Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d
Cir. 1992). In Dillinger, plaintiff sued under strict liability
for injuries he sustained while driving a vehicle
manufactured by defendant. Id. at 432. The district court
allowed defendant to introduce evidence that plaintiff was
not wearing a seat belt but only for considering mitigation
of damages. Id. We held that it was error for the district
court to allow such evidence because “the introduction of
. . . non-use of the seat belts would be directly at odds with
the [state] Supreme Court’s dictates barring evidence of a
plaintiff ’s negligence in [strict] liability proceedings.” Id. at
439. But we concluded that such error was harmless
because the jury had determined that the defendant’s
product “was either not defective or that the defect was not
                                    15


a substantial factor in causing the accident,” and thus the
jury never reached the issue of seat belt use. Id. at 440.
While plaintiff argued “that the jury was influenced by the
evidence concerning [his] failure to use the available lap
belt in determining whether [defendant’s] product was
defective or whether a defect caused [plaintiff ’s] injuries,”
the court had to “assume that the jury was competent to
follow and did follow the instructions given.” Id. at 440 n.17.11

11. As noted, in holding that any possible error was harmless, we do not
mean to suggest there was in fact error. Although we need not decide,
the District Court was likely correct in submitting the conditional
interrogatories on the possible negligence of Roffe and/or Palmas del
Mar.
  There is joint and several liability in tort suits under admiralty law.
But admiralty law also adheres to principles of comparative fault. See 1
Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-4 (3d ed. 2001)
(explaining that both joint and several liability and comparative fault
exist in admiralty tort actions and noting that comparative fault still
applies in cases of strict product liability, “even though this requires a
comparison of negligence and strict liability”). The intertwining of these
concepts was addressed by the Supreme Court in McDermott, Inc. v.
AmClyde, 511 U.S. 202 (1994), which provides instruction for the matter
at hand.
  In McDermott, the plaintiff settled with certain alleged tortfeasors, and
another alleged tortfeasor was immune from damages because of
contractual provisions with the plaintiff. Id. at 204-05. In the suit, the
plaintiff sought damages from yet another alleged tortfeasor, River Don
Castings, Ltd. (“River Don”). Id. The Court held that River Don was only
responsible for its proportionate share of liability. The Court explained:
    Joint and several liability applies when there has been a judgment
    against multiple defendants. It can result in one defendant’s paying
    more than its apportioned share of liability when the plaintiff ’s
    recovery from other defendants is limited by factors beyond the
    plaintiff ’s control, such as a defendant’s insolvency. When the
    limitations on the plaintiff ’s recovery arise from outside forces, joint
    and several liability makes the other defendants, rather than an
    innocent plaintiff, responsible for the shortfall. [In contrast], the
    proportionate share rule announced in this opinion applies when
    there has been a settlement. In such cases, the plaintiff ’s recovery
    against the settling defendant has been limited not by outside
    forces, but by its own agreement to settle. There is no reason to
    allocate any shortfall to the other defendants, who were not parties
                                    16


                                    V.
  For these reasons, we will affirm the judgment of the
District Court.

      to the settlement. Just as the other defendants are not entitled to a
      reduction in liability when the plaintiff negotiates a generous
      settlement, so they are not required to shoulder disproportionate
      liability when the plaintiff negotiates a meager one.

Id. at 220-21 (citations and footnotes omitted).
  Although Roffe and Palmas del Mar did not settle with plaintiffs here,
nor is there immunity resulting from contract, the comparative
negligence rule announced in McDermott would still apply. Notably, Roffe
and Palmas del Mar are not parties to this suit because of the voluntary
acts of the Calhouns. Palmas del Mar was originally a defendant in this
case but was dismissed by plaintiffs. Roffe was a defendant in
companion actions brought and dismissed by plaintiffs in Florida and
Puerto Rico. As such, the Calhouns’ “recovery against [the two] has been
limited not by outside forces, but by [their own decision].” Id. at 221. The
Supreme Court explained that under such circumstances, defendants
should only be responsible for their proportionate share of liability. The
District Court was apparently correct in seeking a determination of the
relative fault of the relevant entities if the jet ski was determined to be
defective.
  At least one court has come to a similar conclusion. In Siegler v. Grace
Offshore Co., 663 So. 2d 212 (La. Ct. App. 1995), the plaintiff sued his
employer, the employer’s insurer, and a crew boat operator for injuries
he allegedly sustained while offloading equipment from a drilling vessel.
Id. at 213. The plaintiff later voluntarily dismissed his claims against his
employer and its insurer. Id. at 214. As such, the court explained that
the crew boat operator could only be held responsible for his
proportionate share. Id. at 215. The court stated:
      Although there has not been a settlement per se in this case, the
      plaintiff voluntarily dismissed his claims against [his employer and
      its insurer] with prejudice. For purposes of the proportionate
      allocation of fault, we discern no distinction between a settlement
      and a voluntary dismissal. Both are agreements entered into by the
      plaintiff which serve to limit his recovery as opposed to the outside
      forces such as insolvency or statutory immunity discussed in
      McDermott.
Id.
                            17


A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
