                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-16-2005

Forrest v. Beloit Corp
Precedential or Non-Precedential: Precedential

Docket No. 04-2184




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                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 04-2184


               PAUL R. FORREST,

                                      Appellant

                          v.

          BELOIT CORPORATION;
      HARNISCHFEGER INDUSTRIES, INC.




   On appeal from the United States District Court
        for the Eastern District of Pennsylvania
             District Court No. 00-cv-05032
  District Judge: The Honorable Bruce W. Kauffman
      __________________________________

              Argued March 30, 2005

Before: ALITO, SMITH, and ROSENN, Circuit Judges

            (Filed: September 16, 2005)

                         1
Joseph R. Viola, Esq. (Argued)
108 Hilltop Road
Philadelphia, PA 191118
Attorney for Appellant Paul R. Forrest

Barbara S. Magen, Esq. (Argued)
Post & Schell, P.C.
Four Penn Center, 13 th Floor
1600 JFK Boulevard
Philadelphia, PA 19103

John J. Snyder, Esq.
Rawle & Henderson
One South Penn Square
The Widener Building
Philadelphia, PA 19107
Attorneys for Appellee Beloit Corporation




                 OPINION OF THE COURT


SMITH, Circuit Judge.

       Appellant Paul Forrest appeals the District Court’s entry
of final judgment and its denial of his motion for a new trial
following a jury verdict in favor of appellee Beloit Corporation



                               2
(“Beloit”) in a products liability action initiated by Forrest.1 The
lawsuit arises from an accident at the paper mill where Forrest
was employed, in which his arm became stuck between two
multi-ton rollers manufactured by Beloit, resulting in severe and
permanent injuries. Forrest sued Beloit, advancing theories of
negligence and strict liability under Pennsylvania law. The jury
returned a special verdict in favor of Beloit, in which the jury
found that Beloit’s “Gloss Calender” machine was not defective,
and that Beloit was not negligent in connection with the design
or manufacture of the Gloss Calender. The special verdict form
also addressed causality, with the jury indicating that the actions
of Forrest’s employer (Jefferson-Smurfit Corporation)
constituted intervening forces that actively operated to cause
Forrest’s accident, and that these actions were so extraordinary
Beloit could not reasonably have foreseen them. After the
verdict, Forrest moved for a new trial. His motion was denied,
and the District Court entered final judgment in favor of Beloit.

       Forrest raises five issues. First, Forrest, who is African-
American, presents a Batson challenge, arguing that the District
Court abused its discretion in determining that the defense had
proffered race-neutral reasons for striking two African-


       1
        Harnischfeger Industries did not participate in this appeal.
The District Court entered an August 20, 2003 order granting
summary judgment in favor of Harnischfeger, and Forrest’s brief
indicates that Forrest is not appealing the District Court’s grant of
summary judgment.

                                 3
American jurors. Second, Forrest argues that counsel for Beloit
engaged in “professional misconduct” in a manner that
improperly influenced the jury’s verdict. Third, Forrest argues
that the jury’s verdict was “tainted” as a result of questions and
testimony relating to negligence and alleged OSHA violations
purportedly committed by Jefferson-Smurfit. Fourth, Forrest
argues that the District Court abused its discretion in permitting
testimony concerning the alleged absence of prior accidents
involving the Gloss Calender that crushed Forrest’s arm. Fifth,
Forrest argues that the District Court erred by permitting
Beloit’s expert to testify whether the presence of a guard on the
Gloss Calender would have prevented Forrest’s accident.

       We will reverse the judgment of the District Court and
remand for a new trial. While the majority of Forrest’s
challenges either lack merit or were not properly preserved, we
believe Forrest argues correctly that the District Court abused its
discretion by permitting Beloit to adduce testimony from two
paper mill employees concerning the alleged absence of prior
accidents involving the Gloss Calender on which Forrest was
injured. The issue of the admissibility of evidence concerning
the absence of prior accidents presents recurring difficulties in
product liability cases, and this Court has yet to address this
issue in the context of the Federal Rules of Evidence. After
disposing of Forrest’s other arguments, we take this opportunity
to provide the district courts with guidance concerning the
foundation that must be laid by a product liability defendant who
seeks to introduce testimony concerning the non-occurrence of

                                4
prior accidents.




                   5
I.     FACTUAL BACKGROUND

       A.      The Paper-Making Process

        Forrest’s underlying lawsuit arises out of injuries he
suffered on November 30, 1999, during the course of his
employment at a paper mill operated by Jefferson-Smurfit.
Forrest suffered his injuries while trying to clear a paper jam in
an eighty- to one-hundred yard line of machines that transform
wood pulp slurry into large rolls of dry paper. At the dry end of
the line, the paper is run through two sets of calenders, or “dry
stacks,” which are large rotating rollers that feed the Gloss
Calender. As the paper is propelled from the dry stacks towards
the Gloss Calender, it first passes under an “air shower” and
then over a lead-in roller known as a “Mount Hope roll.” The
air shower and Mount Hope roll were not part of the original
Gloss Calender when it was designed and manufactured by
Beloit in 1963. The Gloss Calender itself is an additional set of
multi-ton rollers, consisting of a top roll, called the “gloss roll”
or “dryer roll,” and a lower roll called the “pressure roll” or
“mate roll.”

       William Brody, Forrest’s crew supervisor and a
seventeen-year employee of Jefferson-Smurfit, testified that
paper is generally run through the Gloss Calender regardless of
whether gloss is applied, because the Gloss Calender rolls
smooth the paper and support it as it moves toward the cutter at
the end of the line. The opening between the Gloss Calender’s

                                 6
two rollers is referred to as a “nip”; the size of the nip may vary
depending upon whether gloss is being applied. Trial testimony
indicated that Beloit’s original design for the Gloss Calender
called for the opening between the two rolls to be approximately
eight feet, five inches off of the floor. Beloit’s former chief
engineer, George Wong, also testified that the Gloss Calender
was originally designed to be threaded with the user standing on
the floor. However, testimony from multiple Jefferson-Smurfit
employees indicated that a different procedure was employed
during paper breaks. In these situations, an employee would
climb a set of steps located near one of the dry stacks, and
would lean over the air shower and manually feed the paper
through the Gloss Calender rolls to an employee waiting on the
other side.

       B.     Forrest’s Accident

        Forrest’s accident occurred on November 30, 1999. It is
not clear from the record whether at the time of the accident the
Gloss Calender was applying gloss. There is no dispute,
however, that a paper jam occurred, and that Forrest mounted
the dry stack steps to feed a “tail” of paper through the Gloss
Calender, in the manner described above. Forrest testified that
he was working about eight to ten inches away from the nip. He
testified that as he was attempting to feed the paper, his hand got
pulled into the rollers, after which he had no further recollection
of what occurred. Testimony from other witnesses present at the
time showed that when Forrest’s arm was caught between the

                                7
two Gloss Calender rollers, the entire paper production line was
shut down. The fire department and Forrest’s co-workers
eventually extricated Forrest after removing the top Gloss
Calender roll. Forrest suffered severe and permanent injuries as
a result of the accident.

       C.     Forrest’s Lawsuit

       Forrest sued Beloit, advancing theories of strict liability
and negligence under Pennsylvania law. Two of Forrest’s
pretrial motions in limine relate to issues presented in this
appeal. Forrest’s first motion in limine sought to exclude
references at trial to (1) alleged negligence on the part of
Jefferson-Smurfit; (2) Jefferson-Smurfit’s alleged violations of
or non-compliance with OSHA standards and regulations; and
(3) any OSHA investigations, proceedings, findings, reports or
adjudications. Forrest’s second motion in limine sought to
exclude all references at trial to the alleged absence of prior
accidents involving Beloit’s Gloss Calender machines, including
the Gloss Calender on which Forrest suffered his injuries.
Forrest argued that Beloit had failed to establish an adequate
foundation for the admissibility of such evidence, given that
Beloit’s witnesses admitted during deposition testimony that
they were unaware of any databases or incident logs used by
Beloit to track whether users of the Gloss Calender or other
similar Beloit machines suffered injuries in circumstances
similar to those surrounding Forrest’s accident.           Beloit
responded by arguing that evidence reflecting the absence of

                                8
prior accidents involving the Gloss Calender was admissible on
the contested issue of causation. Beloit also asserted that it
would first lay an adequate foundation as required under the
Federal Rules of Evidence before introducing such testimony.
The District Court denied Forrest’s motions in limine, while
preserving Forrest’s right to raise his evidentiary objections in
context at trial.2

       D.      The Jury Trial and Verdict

       Jury selection commenced on January 14, 2004, and trial
ended on February 9, 2004, when the jury returned a defense
verdict. The special verdict form reflects four specific findings.
The jury found: (1) that the Gloss Calender machine was not
defectively designed in 1963; (2) that Beloit was not negligent
in its design, manufacture, or sale of the Gloss Calender
machine in 1963; (3) that Forrest’s employer, Jefferson-Smurfit,
had taken intervening actions that actively operated to cause
Forrest’s accident; and (4) that these actions were so
extraordinary they could not reasonably have been foreseen by
Beloit. Following the jury’s verdict, Forrest moved for a new
trial pursuant to Rule 59(a) of the Federal Rules of Civil
Procedure. Forrest also filed a supplemental memorandum


       2
        Forrest also filed a pretrial motion arguing that counsel for
Beloit had excluded prospective jurors on the basis of race in an
improper effort to empanel an all-white jury. The District Court
denied Forrest’s motion.

                                 9
regarding his Batson challenge. On April 15, 2004, the District
Court denied Forrest’s motion for a new trial and again rejected
his Batson challenge. This appeal followed.

II.    ANALYSIS

       A.     Jurisdiction

       The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 1332(a) and 28 U.S.C. § 1441(a). We
have jurisdiction under 28 U.S.C. § 1291.

       B.     Standard of Review

        With respect to Forrest’s Batson challenge, the District
Court’s finding concerning the absence of intentional
discrimination is reviewed for clear error. See United States v.
Casper, 956 F.2d 416, 419 (3d Cir. 1992) (citing Batson v.
Kentucky, 476 U.S. 79, 98 n.21 (1986)). We review the
District’s Court’s allegedly inadequate response to supposed
attorney misconduct for an abuse of discretion. See Wagner v.
Fair Acres Geriatric Center, 49 F.3d 1002, 1017 (3d Cir. 1995).
The District Court’s determinations concerning the admissibility
of evidence are reviewed for an abuse of discretion as well. See
In re Merritt Logan, Inc. v. Fleming Companies, 901 F.2d 349,
359 (3d Cir. 1990). An abuse of discretion arises where the
District Court’s decision “rests upon a clearly erroneous finding
of fact, errant conclusion of law or an improper application of

                               10
law to fact.” Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d
Cir. 2000).

       To the extent an evidentiary issue turns on the
interpretation of a Federal Rule of Evidence, rather than the
mere application of the rule, our review is plenary. See In re
Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 749 (3d Cir.
1994).    Likewise, the propriety of the District Court’s
interpretations of substantive state law are subject to plenary
review. See Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir. 1990).
Where an appellant’s arguments for a new trial implicate
questions of fact, we view “all the evidence and inferences
reasonably drawn therefrom in the light most favorable to the
party with the verdict.” See Marino v. Ballestas, 749 F.2d 162,
167 (3d Cir. 1984).

          Even if Forrest establishes an error by the District Court,
Forrest must also show that the error was prejudicial. See 28
U.S.C. § 2111; McQueeney v. Wilmington Trust Co., 779 F.2d
916, 924 (3d Cir. 1985). An error will be deemed harmless only
if it is “highly probable” that the error did not affect the outcome
of the case. See McQueeney, 779 F.2d at 924. Harmless error
analysis, however, does not apply to Forrest’s Batson challenge.
Ramseur v. Beyer, 983 F.2d 1215, 1225 n.6 (3d Cir. 1992) (en
banc).




                                 11
       C.      The Batson Challenge

       In Batson, the Supreme Court held that the 14th
Amendment’s equal protection clause barred the use of
peremptory challenges to exclude prospective jurors on the basis
of race. The Supreme Court extended Batson’s rule to civil
cases in Edmondson v. Leesville Concrete Co., Inc., 500 U.S.
614, 631 (1991). Forrest challenges Beloit’s use of its
peremptory challenges here, arguing that Beloit improperly used
two of its challenges to exclude African-American jurors on the
basis of their race. The District Court ruled that Forrest had
failed to satisfy the third prong of the Batson test, which
requires that the District Court conduct an independent
assessment concerning whether the striking party has advanced
a non-pretextual, race-neutral reason for the challenge. See
Hernandez v. New York, 500 U.S. 352, 359-60 (1991).

       Notably, the reason advanced by the striking party in
support of the peremptory challenge need not be especially
persuasive from a tactical standpoint. See Purkett v. Elem, 514
U.S. 765, 767-68 (1995). Instead, a race-neutral explanation is
simply one that is based on “something other than the race of the
juror” and is free of discriminatory animus. See Hernandez, 500
U.S. at 360. The trial judge must then evaluate whether the
reason proffered by the striking party is indeed race-neutral, and
also whether it is non-pretextual, in the sense that it is not being
used merely to cover the striking party’s discrimination. See
United States v. Casper, 956 F.2d 416, 419 (3d Cir. 1992).

                                12
Because the trial court’s evaluation turns in large part upon the
credibility and demeanor of the attorney exercising the
challenge, see id. at 419, the trial judge’s determination is
afforded considerable deference, and “will not be reversed
unless it is completely devoid of minimum evidentiary support
displaying some hue of credibility, . . . or bears no rational
relationship to the supportive evidence.” United States v. Milan,
304 F.3d 273, 281 (3d Cir. 2002).

        We find that the District Court did not abuse its
discretion in determining that Beloit’s attorney advanced non-
pretextual, race-neutral reasons in support of Beloit’s challenge
of two African-American jurors. Forrest seeks to vindicate his
Batson challenge by focusing upon a comparison of
characteristics possessed by the two stricken African-American
jurors that are purportedly identical to characteristics possessed
by white jurors who were not stricken. This approach is
consistent with the mode of analysis we have embraced in
evaluating prior Batson challenges. See, e.g., Holloway v. Horn,
355 F.3d 707, 724 (3d Cir. 2004); Riley v. Taylor, 277 F.3d 261,
282 (3d Cir. 2001) (en banc). However, Forrest’s challenge
fails on the merits, because the District Court reasonably
determined, based on the record before it, that the reasons cited
by Beloit in support of its challenges to the stricken African-
American jurors were not reflected in equal measure in various
white jurors who were not challenged.

       The first African-American juror against whom Beloit

                               13
allegedly exercised an improper challenge was Juror No. 38.
Beloit’s counsel indicated on the record that Juror 38 was struck
because she was a nurse, and Beloit anticipated putting on
testimony that would be critical of the wound care received by
Forrest following his accident. Forrest complains that Juror 38
was never questioned concerning whether her occupation as a
nurse would affect her ability to serve as a fair and impartial
juror. However, Forrest cites no authority for the proposition
that Beloit was required to make such an inquiry prior to
exercising its peremptory challenge. Forrest also argues that
Beloit’s reliance on Juror 38's occupation as a nurse was
pretextual, noting that a white female juror also employed as a
nurse was not stricken. Forrest acknowledges, however, that the
white juror was so far down the list that she was not seated on
the jury in any event, and Beloit observes that this juror was “far
enough down the list that it was unnecessary for the defense to
use one of its peremptory strikes.”3 On this record, we believe
it is clear that the District Court did not abuse its discretion in
concluding that Beloit offered an acceptable, race-neutral, non-
pretextual reason for striking Juror 38.


        3
         In support of his pretext arguments, Forrest also notes that a
white male who was married to a nurse was seated on the jury.
However, Forrest offers no basis to believe that the medical
knowledge and professional assumptions held by the white juror’s
wife can be attributed in equal measure to the white juror, and thus
Beloit’s failure to strike the white juror offers no support for Forrest’s
assertion that Beloit struck Juror 38 on the basis of her race, rather
than her occupation as a nurse.

                                   14
       The second African-American juror against whom Beloit
allegedly exercised an improper challenge was Juror No. 29.
Beloit’s counsel indicated that Juror 29 was struck for a
combination of two reasons: (a) she appeared inattentive and did
not participate during voir dire other than to indicate that she
preferred not to sit on the jury; and (b) she was from
Philadelphia, and regardless of race Beloit was concerned that
jurors from Philadelphia were more likely to award large
verdicts than jurors from other parts of the Eastern District.
Forrest argues that Beloit’s cited reasons were pretextual,
because it purportedly failed to strike a number of similarly
situated white jurors. However, most of the jurors cited by
Forrest shared neither of the two characteristics that Beloit cited
as together prompting it to strike Juror 29. Five of the six jurors
cited by Forrest were not Philadelphia residents, and contrary to
Forrest’s characterization, a number of these jurors participated
actively in the voir dire.

        Forrest notes that one white juror who was a Philadelphia
resident indicated that he preferred not to sit on the jury.
However, this juror participated actively in the voir dire, his
statement concerning the preventability of workplace accidents
provided a reasonable basis for Beloit to distinguish between
this juror and Juror 29, notwithstanding that both were residents
of Philadelphia. On this record, we cannot say that the District
Court abused its discretion by accepting as non-pretextual
Beloit’s explanation concerning its basis for striking Juror 29.



                                15
       D.      Forrest’s A llegations            Of     “A ttorney
               Misconduct”

        Forrest argues for a new trial on the basis of alleged
attorney misconduct by counsel for Beloit.4 The arguments
grouped by Forrest under the heading of attorney misconduct
cover a wide range of issues, including concerns regarding
evidentiary rulings, defense counsel’s facial expressions, an in-
court demonstration performed by defense counsel, and the
tenor and content of defense counsel’s questions to witnesses
and statements in closing arguments. We review the District
Court’s decisions concerning alleged attorney misconduct under
an abuse of discretion standard. Due to his superior vantage
point, the trial judge is entrusted with wide discretion in matters
relating to the conduct of counsel during trial. See Greenleaf v.
Garlock, Inc., 174 F.3d 352, 363 (3d Cir. 1999) (citing Fineman
v. Armstrong World Indus., Inc., 980 F.2d 171, 207 (3d Cir.
1992)). Accordingly, under our deferential review, we will
grant a new trial only where the allegedly improper statements
or conduct make it “reasonably probable” that the verdict was
influenced by the resulting prejudice. See Greenleaf, 174 F.3d
at 363-64; Waldorf, 142 F.3d at 627-28; Great Bay Hotel &
Casino v. Tose, 34 F.3d 1227, 1236 (3d Cir. 1994).



       4
         Beloit’s counsel on appeal did not represent Beloit at trial,
and the conduct of Beloit’s appellate counsel has not been questioned.


                                 16
       Our consideration of the record, coupled with our
deferential standard of review, compels the conclusion that the
District Court did not err in refusing to grant Forrest a new trial
on the basis of the alleged attorney misconduct by counsel for
Beloit. Forrest’s scattered assertions concerning alleged
“editorializing” by counsel for Beloit for the most part lack
record support. In the one instance where Forrest requested a
curative instruction, the District Court reasonably noted that the
jury had heard the Court’s admonitions with respect to
editorializing, and that an additional instruction would serve
only to highlight the questioned statements for the jury.5

        We need not address Forrest’s remaining allegations of
attorney misconduct in detail, as we are remanding for a new
trial. We note, however, that Forrest has identified certain
actions of Beloit’s trial counsel which may reasonably be
questioned. In particular, we believe counsel for Beloit should
not have invoked in his closing argument a prior courtroom
demonstration in which he attempted to simulate Forrest’s
efforts to clear the paper jam on the night Forrest was injured.


       5
        Forrest also complains that Beloit’s counsel made
inappropriate facial expressions in the presence of the jury. The
matter was brought to the attention of the trial judge, who explained
that he had not noticed such expressions, but nonetheless urged
counsel for both parties to avoid making faces in front of the jury.
The role of a trial judge should not be akin to that of schoolyard
supervisor, and we perceive no flaw in the manner in which the able
and patient trial judge dealt with this issue.

                                 17
This attempted demonstration, involving a variety of poles and
a ladder, was subject to repeated sustained objections, and the
District Court eventually ordered Beloit’s trial counsel to
discontinue the demonstration.

        Notwithstanding the District Court’s ruling, counsel for
Beloit invoked the demonstration repeatedly in his closing,
arguing that it validated the defense’s theory of causation. Two
of the references to this demonstration occurred after the District
Court had informed Forrest’s trial counsel that it would not
permit further objections during closing arguments. We
recognize both the breadth of the District Court’s discretion with
respect to trial proceedings and the desirability of permitting
each party to present its closing statement free from undue
interruption. However, this freedom is not a license to flout a
district court’s earlier rulings restricting reliance on misleading
courtroom demonstrations or inadmissible evidence. Although
Beloit’s counsel “crossed the line,” we do not consider his
conduct so severe as to warrant a new trial.

       E.     References to OSHA Standards

      Forrest also seeks a new trial on the basis of the alleged
improper introduction of evidence concerning OSHA standards
by Beloit during the course of the trial. A product manufacturer
in Pennsylvania has a non-delegable duty to provide a safe
product. See Walton v. Avco Corp., 610 A.2d 454, 458 (Pa.
1992). Thus, a manufacturer in a products liability action may

                                18
not invoke industry or OSHA standards to argue that the
plaintiff’s employer, rather than the manufacturer, had the
responsibility to provide the equipment or instructions necessary
to make a product safe for its intended use. See Sheehan v.
Cincinnati Shaper Co., 555 A.2d 1352, 1355 (Pa. Super. 1989);
Majdic v. Cincinnati Machine Co., 537 A.2d 334, 336-38 (Pa.
Super. 1988). However, this rule is of limited applicability here,
because the District Court did not admit OSHA and industry
standard evidence for such purposes. Indeed, the first OSHA
reference cited by Forrest occurred in a question directed to
Forrest’s expert, Widas, during cross-examination. Forrest
objected, a lengthy sidebar ensued, and the District Court
directed Beloit’s counsel to proceed without referencing
Jefferson-Smurfit’s citation for an OSHA violation in
connection with Forrest’s accident. The District Court also
agreed to strike from the record the OSHA references that had
occurred thus far. Notably, Forrest did not move for a mistrial.
We see no error in the District Court’s actions, and thus
Forrest’s appeal with respect to this issue lacks merit.6


       6
         Forrest’s appeal also notes that Beloit’s trial counsel
characterized the difference between Widas’s draft expert report and
his final expert report as involving the removal of “all references to
the employer’s liability in this case.” We need not decide whether
this reference may have been improper or prejudicial in light of
Pennsylvania’s substantive law concerning the non-delegable duties
of a product manufacturer. Forrest did not object to the statement at
trial, and thus the issue is waived. See Medical Protective Co. v.
Watkins, 198 F.3d 100, 105 n.3 (3d Cir. 1999); Waldorf, 142 F.3d at

                                 19
       F.     Expert Testimony Of Kelly Kennett

       Forrest argues that the District Court improperly
permitted testimony from Beloit’s biomechanical engineering
expert, Kelly Kennett. Forrest first argues that Kennett was
improperly permitted to testify concerning the ultimate issue in
the case. Second, Forrest maintains that Beloit failed to
establish an adequate foundation for Kennett’s testimony
concerning whether the presence of a particular type of guard
would have prevented Forrest’s accident. Both of Forrest’s
objections lack merit.

        As Beloit correctly points out, Kennett was admitted to
testify as an expert witness, and under FRE 704 an expert
witness may offer testimony concerning the ultimate issue in the
case. See Salas v. Wang, 846 F.2d 897, 905 (3d Cir. 1988).
Moreover, Beloit is also correct that the question of whether the
presence of a guard would have prevented Forrest’s injury is a
question of fact, and is distinct from the ultimate issue of
whether the Gloss Calender was defectively or negligently
designed and manufactured. The admissibility of expert opinion
testimony with respect to such issues is well established. See
Wilburn v. Maritrans GP, Inc., 139 F.3d 350, 356 (3d Cir.
1998).

       Kennett’s testimony focused upon the physical posture


629.

                               20
that Forrest allegedly must have been in to access the Gloss
Calender nip, and also whether the presence of a particular
guard would have prevented Forrest’s injury. Forrest argues that
Kennett failed to lay an adequate foundation for this testimony.
However, Kennett’s testimony set forth his methodology and
described at some length the various measurements relevant to
his calculations.     This foundation adequately supported
Kennett’s expert testimony, and thus the District Court did not
abuse its discretion in permitting Kennett to testify.

       G.     Evidence Concerning The Absence Of Prior
              Gloss Calender Accidents

       Forrest argues that the District Court erred by permitting
Beloit to introduce evidence concerning the alleged absence of
prior accidents involving the Gloss Calender at the Jefferson-
Smurfitt mill. Beloit introduced this evidence through testimony
extracted on cross-examination from former Jefferson-Smurfit
employees William Brody and Edward Marshall, who had been
employed at Jefferson-Smurfit (and its corporate predecessor
CCA) for seventeen years and thirty-five years, respectively.
They testified that the way Forrest attempted to thread the Gloss
Calender on the night of the accident was the same as that used
for years by other employees. Both Brody and Marshall also
indicated that they were unaware of any prior similar accidents
involving the Gloss Calender during their years at Jefferson-
Smurfit. Beloit invoked this testimony in its closing, arguing
that “as far as the evidence is concerned, the only accident we

                               21
know of, in thirty-six years, on the Gloss Calender was Mr.
Forrest’s.”

       The foregoing testimony came in over Forrest’s repeated
objections, including a pretrial motion in limine. Forrest’s
objections centered on Beloit’s alleged failure to establish an
adequate foundation for introducing this testimony concerning
the alleged absence of prior accidents involving the Gloss
Calender at the Jefferson-Smurfitt mill. Forrest noted that
George Wong, Beloit’s former chief engineer, had admitted in
his deposition that Beloit kept no records relating to either safety
complaints by Beloit customers or past accidents involving
Beloit’s Gloss Calender machines. Invoking Federal Rules of
Evidence 402 and 403, Forrest argued that the lack of records
precluded Beloit from satisfying the foundation-laying
requirement traditionally imposed on a product liability
defendant seeking to introduce testimony concerning the alleged
absence of prior accidents involving its products. Forrest’s
motion in limine argued that “[b]ecause Beloit cannot establish
a foundation for the admissibility of evidence concerning an
absence of prior substantially similar accidents, any reference to
such alleged evidence . . . would be unfairly prejudicial to
Forrest[.]”

       To assess Forrest’s challenge to the disputed evidence,
we must first determine the applicable law. The parties and the
District Court focused primarily on Pennsylvania law
concerning this issue, and in particular, on the decision of the

                                22
Pennsylvania Supreme Court in Spino v. Tilley, 696 A.2d 1169
(Pa. 1997). While the well-reasoned decision in Spino provides
useful guidance, the question presented is governed by federal
rather than state law. The admissibility of the evidence
ultimately turns on a balancing of its probative value versus its
prejudicial effect, and we have held that in a federal court the
Federal Rules of Evidence govern procedural issues of this
nature. See, e.g., Diehl v. Blaw-Knox, 360 F.3d 426, 431 n.3 (3d
Cir. 2004) (stating in product liability diversity action governed
by Pennsylvania law that “assessment of the dangers of unfair
prejudice and confusion of the issues are procedural matters that
govern in a federal court notwithstanding a state policy to the
contrary”) (emphasis added); Kelly v. Crown Equipment Co.,
970 F.2d 1273, 1277-78 (3d Cir. 1992) (noting that relevancy
provision in Federal Rules of Evidence is “arguably procedural”
and therefore governs in diversity action notwithstanding
contrary Pennsylvania law); Espeaignnette v. Tierney, 43 F.3d
1, 9 (1st Cir. 1994) (federal rather than state law governs
admissibility of “no prior accident” evidence in a diversity
action).7


       7
         Judge Alito's concurrence cites our decision in Greiner v.
Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976), as
pointing toward the application of state law. Our ability to assess
Greiner's rationale is hampered by the brevity of that opinion’s one-
line assertion that "Erie R. Co. v. Tompkins compels us to follow the
law of Pennsylvania." Id. at 89. We have recognized that “the
determination of whether a particular evidentiary ruling involves
federal procedural law or state substantive law can be difficult," and

                                 23
        Under the Federal Rules of Evidence, subject to certain
limitations, all evidence is admissible if it is relevant, i.e., if it
tends to make the existence or nonexistence of a disputed
material fact more probable than it would be without that
evidence. See Fed. R. Evid. 401, 402. Pursuant to Rule 403 of
the Federal Rules of Evidence, a district court may nonetheless
exclude relevant evidence if the probative value of the evidence
is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless


have quoted with approval Justice Harlan's observation that courts
should consider "whether the choice of rule 'would substantially
affect those primary decisions respecting human conduct which our
constitutional system leaves to state regulation.'" Schulz v. Celotex
Corp., 942 F.2d 204, 207 (3d Cir. 1991) (quoting Hanna v. Plumer,
380 U.S. 460, 475 (1965) (Harlan, J., concurring)). Greiner dealt
with the rules governing the admissibility of evidence of a plaintiff's
alleged intoxication in a product liability suit against a motor vehicle
manufacturer. See 540 F.2d at 89-90. Such rules, similar to state
rules regulating the admissibility of evidence concerning a plaintiff's
non-use of a seatbelt, Dillinger v. Caterpillar Inc., 959 F.2d 430, 434
n.11 (3d Cir. 1992), arguably are intertwined with the manner in
which states seek to regulate primary behavior involving the
operation of motor vehicles on public roads, and as such may fall on
the substantive side of the substance/procedure dichotomy. This
distinguishing factor, combined with our more recent statements in
Kelly and Diehl characterizing as “procedural” FRE 407's provisions
concerning evidence of subsequent remedial measures, leads us to
conclude that federal law governs the question presented here.


                                  24
presentation of cumulative evidence.” Fed. R. Evid. 403. Rule
403 is an “‘umbrella rule’ spanning the whole of the Federal
Rules of Evidence,” and as such trial judges must apply Rule
403 “in tandem with other Federal Rules under which evidence
would be admissible.” See Coleman v. Home Depot, Inc., 306
F.3d 1333, 1343 (3d Cir. 2002). Where, as here, a district court
fails explicitly to articulate the Rule 403 balancing, “we either
decide the trial court implicitly performed the required balance;
or, if we decide the trial court did not, we undertake to perform
the balance ourselves.” Ansell v. Green Acres Contracting Co.,
347 F.3d 515, 525 (3d Cir. 2003) (quoting Glass v. Philadelphia
Electric Co., 34 F.3d 188, 192 (3d Cir. 1994)). In sum, “Rule
403 recognizes that a cost/benefit analysis must be employed to
determine whether or not to admit evidence; relevance alone
does not ensure its admissibility.” Coleman, 306 F.3d at 1343.
However, “there is a strong presumption that relevant evidence
should be admitted, and thus for exclusion under Rule 403 to be
justified, the probative value of evidence must be ‘substantially
outweighed’ by the problems in admitting it.” Id. at 1343-44.

       Federal and state courts addressing the admissibility of
evidence concerning the absence of prior accidents have
recognized that the probative value of such evidence is
determined in large measure by the foundation laid by the
offering party. In Espeaignnette, the First Circuit observed that
as a general rule, “evidence of the absence of prior accidents
may not be admitted unless the offering party first establishes
that the ‘lack of accidents was in regard to products that are

                               25
substantially identical to the one at issue and used in settings and
circumstances sufficiently similar to those surrounding the
machine at the time of the accident.’” 43 F.3d at 10 (quoting
Klonowski v. International Armament Corp., 17 F.3d 992, 996
(7th Cir. 1994)). Accordingly, most courts admitting evidence
of the absence of prior accidents in product liability cases have
done so only where the testifying witness, usually an employee
of the product manufacturer, has testified that (a) a significant
number of substantially identical products have been used in
similar circumstances over a period of time; (b) the witness
would likely be aware of prior accidents involving these
products; and (c) to the witness’s knowledge, no such prior
accidents have occurred. See, e.g., Pandit v. American Honda
Motor Co., 82 F.3d 376, 380-81 (10th Cir. 1996) (permitting
testimony where allegedly defective feature had been included
in nearly 1.9 million automobiles over eight-year period, and
these other automobiles had been used in substantially similar
settings and circumstances); Espeaignnette, 43 F.3d at 10
(permitting testimony where manufacturer’s president testified
that eighty-seven similar products had been sold in the previous
fifteen years, and that as president of company any prior
accidents or claims involving these products would have come
to his attention); Bilski v. Scientific Atlanta, 964 F.2d 697, 700
(7th Cir. 1992) (permitting testimony where defendant’s expert
testified that 4,000 identical satellite dishes had been sold and
were used under circumstances similar to those at plaintiff’s
place of employment); Hines v. Joy Mfg. Co., 850 F.2d 1146,
1154 (6th Cir. 1988) (permitting testimony where defendant’s

                                26
expert testified that original design of product dated back to the
1950s and that 200 substantially identical units had been sold by
defendant); Spino, 696 A.2d at 1174 (permitting testimony
where defendant’s president indicated that over 100,000
identical ladders had been sold, and that company claims log did
not reveal the existence of any prior accidents involving the
allegedly defective ladder).8

      With respect to the conceptual underpinnings of this
foundation requirement, Espeaignnette stated that it was unclear
“[w]hether such preliminary requirements are aimed at
preventing the admission of irrelevant evidence under Rule 402,
excluding relevant evidence that is unfairly prejudicial and
confusing under Rule 403, or both . . . .” Id. We think the
foundation requirement discussed in these cases is best


        8
         Conversely, where an adequate foundation has not been laid,
testimony concerning an alleged absence of prior accidents has been
disallowed. See, e.g., Klonowski, 17 F.3d at 996 (where manufacturer
failed to show that all shotguns sold since 1980 employed trigger
mechanism substantially identical to shotgun that injured plaintiff,
trial court properly refused to allow defendant’s expert to testify as to
number of shotguns sold without injury); Walker v. Trico Mfg., 487
F.2d 595, 599 (7th Cir. 1973) (holding that it was error for trial court
to admit evidence of lack of prior accidents where similarity of forty-
five units previously sold was not known); Balsley v. Raymond Corp.,
600 N.E.2d 424, 426-27 (Ill. App. Ct. 1992) (trial court abused its
discretion in admitting testimony concerning absence of prior
accidents where expert was unable to show that other forklift users
had followed identical battery recharging process).

                                   27
described as a tool meant to aid in the balancing inquiry under
Rule 403 or its state analog. There is little doubt that as a
general matter evidence concerning the absence of prior
accidents can satisfy the relevance threshold established by Rule
402. Courts have indicated that such evidence may be relevant
to show (1) the absence of the alleged defect; (2) the lack of a
causal relationship between the injury and the defect or
condition charged; and (3) the nonexistence of an unduly
dangerous situation. See, e.g., Pandit, 82 F.3d at 380;
Espeaignnette, 43 F.3d at 9-10; Hines, 850 F.2d at 1152.
Notwithstanding the potential relevance of such evidence under
Rule 402, its probative value must be carefully balanced,
pursuant to Rule 403, against its possible prejudicial effect.
Testimony concerning an alleged absence of prior accidents, if
offered without a proper foundation, can create risks of unfair
prejudice that may substantially outweigh whatever probative
value the evidence otherwise has. Thus, courts assessing the
admissibility of such evidence emphasize the contextual nature
of the inquiry, which turns upon the facts and circumstances of
each particular case. See Espeaignnette, 43 F.3d at 10; Walker,
487 F.2d at 599; Spino, 596 A.2d at 1173-74; Jones v. Pak-Mor
Mfg. Co., 700 P.2d 819, 824-25 (Ariz. 1985).

      The importance of the foundation requirement is
underscored by the potential for unfair prejudice that may result
from such evidence. The Arizona Supreme Court’s thorough
opinion in Jones summarized the concerns at issue. First, the
mere fact that a witness does not know of any prior accidents

                               28
does not prove that no such accidents occurred. See Jones, 700
P.2d at 824. Second, generalized assertions concerning an
alleged absence of accidents over an extended period of time
can be directly rebutted only with specific evidence of prior
occurrences, but such evidence may be difficult or impossible
for a plaintiff to obtain in cases where the defendant has not
kept records concerning the safety history of its products. See
id. at 824-26. Third, the absence of prior accidents may simply
mean that the plaintiff was the first to be injured; there is always
a first victim. See id. at 825; Spino, 696 A.2d at 1173. Fourth,
testimony concerning the absence of prior accidents “does not
tell us how many near-accidents, nor how many fortuitous
escapes from injury, may have occurred[.]” See Jones, 700 P.2d
at 826.

        This fourth concern is especially salient in product
liability cases arising under Pennsylvania law, which deems a
product defective if it “left the supplier’s control lacking any
element necessary to make it safe for its intended use.” Lewis
v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590, 593 (Pa.
1987) (quoting Azzarello v. Black Bros. Co., 391 A.2d 1020,
1027 (Pa. 1978)). The Pennsylvania Supreme Court has stated
that “products are to be evaluated at the time of distribution
when examining a claim of product defect.” Duchess v.
Langston Corp., 769 A.2d 1131, 1142 (Pa. 2001).
Pennsylvania’s approach is reflected in the fact that risk-utility
analysis concerning whether a product is unreasonably
dangerous (which is required under § 402A of the Restatement

                                29
(Second) of Torts) is performed by the trial judge rather than the
jury. See Azzarello, 391 A.2d at 1026. “In answering this
question a court is essentially making a social policy
determination and acting as both a social philosopher and a risk-
utility economic analyst.” Riley v. Warren Mfg. Inc., 688 A.2d
221, 224 (Pa. Super. Ct. 1997) (citing Fitzpatrick v. Madonna,
623 A.2d 322, 324 (Pa. Super. Ct. 1993)). Thus, where the
plaintiff has surmounted this initial hurdle and the case has
reached the jury, the jury’s focus is on the product in se, and
specifically on whether the product as designed presents a
potential danger to the intended user.

        The nature of this inquiry is such that evidence of near-
misses or fortuitous escapes would be highly probative of the
existence of a danger, and thus of the existence of a defect.
Such evidence, however, is by definition extremely difficult to
obtain, if for no other reason than that a user who has
fortuitously escaped injury may not even recognize that he was
exposed to danger in the first place. Permitting a product
liability defendant to introduce testimony concerning an alleged
absence of prior accidents may thus create a misleading
impression as to whether a defect exists, due to the potential
inaccessibility of contrary probative evidence that would cast
doubt upon the product’s safety. It may also divert the jury’s
focus onto a balancing of the product’s proven costs vis-a-vis its
proven benefits, notwithstanding that this issue will already have
been resolved in the plaintiff’s favor by the trial judge’s earlier



                                30
risk-utility analysis.9

        To summarize the applicable analytical framework, in
federal court the admissibility of evidence concerning an
absence of prior accidents is governed by federal law. The
admissibility of such evidence turns on the facts and
circumstances of each case. Testimony concerning an alleged
absence of prior accidents will usually satisfy the relevance
threshold established by Rule 402. Such testimony, however, by
its very nature, raises significant concerns regarding unfair
prejudice to the plaintiff, and these concerns are heightened in
product liability cases arising under Pennsylvania law. District
courts are required under Rule 403 to balance the probative
value of such evidence against its likely prejudicial effect, but
the evidence may not be excluded unless the unfair prejudice
created by admitting the evidence would substantially outweigh
its probative value. In an effort to ascertain probative value and
minimize undue prejudice, other courts considering such
evidence have consistently insisted that the offering party lay a
proper foundation. In most cases the required foundation has
involved three elements: (a) similarity - the defendant must

       9
         As set forth above, the evidentiary issues in this case are
governed by federal rather than state law. However, Rule 401 of the
Federal Rules of Evidence defines relevance by reference to facts “of
consequence to the determination of the action.” Thus, the
substantive components of Pennsylvania products liability law are
“critical” in determining the relevance and probative value of the
evidence that was offered at trial. Diehl, 360 F.3d at 431 n.3.

                                 31
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.

        The facts and circumstances surrounding the disputed
testimony at issue in this case present an uncommon scenario.
Prior cases have usually involved a product liability defendant’s
attempt to introduce evidence concerning the absence of prior
accidents through the testimony of its own witness, typically a
corporate officer or an expert. Here, in contrast, Beloit sought
to introduce safety history evidence by extracting testimony
during the cross-examination of two witnesses who were long-
time employees of the Jefferson-Smurfitt paper mill. Beloit also
restricted its questions to the safety history of the specific Gloss
Calender that was installed at the Jefferson-Smurfitt mill. This
narrower focus was understandable, because Wong, Beloit’s
corporate designee, admitted in his deposition that he knew of
no records or databases relating to either safety complaints by
Beloit’s customers or past accidents involving Beloit’s Gloss
Calender machines. Thus, any attempt by Beloit to introduce
through its own witness a broad claim with respect to the safety
history of Beloit’s Gloss Calender machines would likely have
been foreclosed by the witness’s inability to show that he or she
would have known of prior accidents had they occurred.



                                32
       The question now before us is whether Beloit, by
focusing solely upon the single Gloss Calender at the Jefferson-
Smurfitt mill, so diluted the probative value of the testimony in
question as to render it inadmissible in light of the potential for
unfair prejudice that inheres in all such testimony. We answer
this question in the affirmative, and hold that the testimony
should have been excluded pursuant to Rule 403.

        We reach this conclusion for several reasons. Our
primary concern is that notwithstanding the disputed testimony,
we have no idea whether there were prior accidents involving
Beloit’s allegedly defective Gloss Calenders. The record is
clear that Beloit designed and sold its Gloss Calenders to many
customers over a period of several decades. Wong, who at one
time personally led Beloit’s Gloss Calender design group,
testified that to his knowledge Beloit kept no records concerning
whether injuries or accidents involving these Gloss Calenders
might have occurred during the decades prior to Forrest’s
accident. The combination of (a) the existence of multiple other
Beloit Gloss Calenders of similar or identical design; (b) the
likely use of these Gloss Calenders in similar circumstances
over a period of several decades; and (c) the absence of any
evidence concerning the safety history of these other Gloss
Calenders, leaves us with no reliable way to determine the
probative value of what is essentially anecdotal testimony from
two former Jefferson-Smurfitt employees concerning a single
Gloss Calender installed at a single mill. Thus, we can do little
more than engage in rank speculation concerning the “probative

                                33
value” side of the Rule 403 balancing equation.

        The same uncertainty that hampers our ability to ascertain
the probative value of the disputed testimony also undermines
Forrest’s ability to respond. Forrest could of course speculate
that other accidents might have occurred on one or more of the
Beloit Gloss Calenders used at other mills over the past forty
years. Such speculation, however, is unlikely to have anywhere
near the same effect on the jury when compared to the concrete
testimony from two witnesses concerning the specific Gloss
Calender involved in Forrest’s accident.

        The asymmetry in the persuasive force of the cross-
examination testimony extracted by Beloit and the speculative
nature of Forrest’s potential response highlights two ways in
which Forrest was unfairly prejudiced. First, Forrest’s inability
to address the issue in a more concrete fashion is traceable in
large measure to Beloit’s failure to maintain records concerning
the safety history of its own products. Second, the advantage
Beloit gains over Forrest in this situation is not primarily the
result of the natural probative force of the disputed testimony;
indeed, the disputed testimony leaves us no way of knowing
whether the absence of prior accidents involving the Jefferson-
Smurfitt Gloss Calender was an aberration, as opposed to a
typical example of industry experience with substantially
identical Beloit Gloss Calenders. This problem is basically a
variation of a general concern applicable to all similar evidence
from which a jury is asked to draw a negative inference:

                               34
Witnesses testify from limited knowledge, and the fact that a
particular witness is unaware of prior accidents does not mean
such accidents have not occurred. We believe that given these
considerations, the potential harm Forrest suffered as a result of
Beloit’s reliance on the disputed testimony constitutes the sort
of unfair prejudice that Rule 403 is meant to combat. See
Coleman, 306 F.3d at 1343, n.6.10

       The disputed testimony at issue is also troubling in light
of Rule 403's reference to “confusion of the issues” and
“misleading the jury.” Isolated testimony concerning the alleged
safety history of the Gloss Calender on which Forrest was
injured tends naturally to focus the jury’s attention upon that
specific Gloss Calender. This focus may lead the jury to
generalize from the limited experience surrounding one Gloss
Calender to a broader conclusion concerning the overall safety
of Beloit’s Gloss Calender design. Pennsylvania law, however,
focuses on the design of the product in the abstract, rather than
the safety history of a particular unit. See Duchess, 769 A.2d at
1142. Thus, to the extent an inference concerning the safety of


       10
         “It is worth stressing that the term ‘unfair prejudice’ as a
factor against which the probative value of evidence is weighed under
Rule 403 is often misstated as mere prejudice. Indeed, any evidence
that tends to harm a party’s case could be said to be prejudicial.
Thus, the prejudicial effect of admitting the evidence must rise to the
level of creating an unfair advantage for one of the parties for the
evidence to be excluded under Rule 403.” Coleman, 306 F.3d at
1343 n.6.

                                  35
a product’s design can be drawn from a product’s safety history,
the reliability of such an inference is determined in large
measure by the scope of the available safety history information.
Here, of course, the information relied upon by Beloit does not
cover all of Beloit’s prior Gloss Calenders, or even a majority of
them. Thus, to the extent this evidence could lead the jury to an
inference concerning the overall safety of Beloit’s Gloss
Calender design, we cannot discount the possibility that the
inference would be based on either false assumptions,
unsupported speculation, or both.

       All of the foregoing concerns with respect to possible
unfair prejudice and jury confusion are in addition to the
generally applicable concerns discussed earlier. Of particular
significance is that the evidence concerning the absence of prior
accidents does not account for “near accidents” and “fortuitous
escapes.” See Jones, 700 P.2d at 826. The risk of jury
confusion and unfair prejudice arising as a result of this issue is
especially acute under Pennsylvania law, where the jury’s defect
determination turns not upon a risk-utility analysis, but instead
upon whether the product as designed lacks a necessary safety
feature. See Lewis, 528 A.2d at 593.

       In a risk-utility analysis, avoidance of accidents through
extra care by product users, and post-purchase employer
precautions such as additional safety training for workers, may
affect the analysis of whether the product as designed was
“unreasonably dangerous.” See Surace v. Caterpillar, Inc., 111

                                36
F.3d 1039, 1046 (3d Cir. 1997) (discussing risk-utility analysis
under Pennsylvania law, and citing factors including “the user’s
ability to avoid danger by the exercise of care in the use of the
product” and “the user’s anticipated awareness of the dangers
inherent in the product and their avoidability, because of . . . the
existence of suitable warnings or instruction”) (quoting
Dambacher v. Mallis, 485 A.2d 408, 423 n.4 (Pa. Super. Ct.
1984)). These same factors, combined with good fortune, may
also contribute to a lack of prior accidents involving the
allegedly defective product. Consideration of such factors,
however, is not within the province of the jury in Pennsylvania;
instead, the jury is to focus on the design of the product as it
existed when it left the supplier’s control.11 See Duchess, 769
A.2d at 1142; Lewis, 528 A.2d at 590; Azzarello, 391 A.2d at


        11
           In practice, the result is that design defect cases governed by
Pennsylvania law generally boil down to a battle between competing
expert witnesses. It is not our place to question from a substantive
standpoint the desirability of this aspect of Pennsylvania’s products
liability law. We note, however, that such battles may be particularly
confusing for lay jurors. In this context, any testimony that leaves the
ethereal realm of expert opinion and discusses real-world prior
experience is likely to have an especially profound impact upon the
jury, particularly when the time comes to apply the trial testimony to
complex and abstract legal concepts such as “defect” and “proximate
cause.” That jurors in Pennsylvania products liability cases may
place disproportionate weight upon testimony from lay witnesses
concerning prior real-world events reinforces our view that the
wrongful admission of the disputed testimony at issue here was not
harmless error.

                                   37
1027.

        These characteristics of Pennsylvania law create a
heightened risk that testimony concerning the alleged absence
of prior accidents may confuse or mislead the jury. Under
Pennsylvania law, the lack of a necessary safety feature when
the product leaves the factory determines whether the product is
defective. In arguing to the jury in a case governed by
Pennsylvania law, a product liability defendant may not invoke
an alleged absence of sufficiently severe or frequent injuries in
support of an assertion that a product’s social utility outweighs
its otherwise defective design. There is a danger, however, that
testimony concerning the alleged absence of prior accidents may
tend to lead the jury towards forbidden inferences of this sort.

        Moreover, as discussed above, the close relationship
under Pennsylvania law between the existence of danger and the
existence of a defect demonstrates that to the extent the absence
of prior accidents is probative, the presence of prior near-
accidents or fortuitous escapes is equally probative. Such
evidence, however, is inherently difficult to obtain, and thus
plaintiffs such as Forrest may be left at an unfair disadvantage,
in that safety history testimony proffered by defendants such as
Beloit may appear to be more probative than it actually is, but its
shortcomings will not be fully exposed before the jury.

       A number of the concerns set forth above are aspects of
prejudice that arise from the unique facts of this case. Others,

                                38
however, are more or less equally applicable to all evidence
concerning an alleged absence of prior accidents. We note this
to emphasize that the mere existence of potential unfair
prejudice to the plaintiff does not in and of itself justify the
exclusion of safety history evidence offered by a product
liability defendant. Nonetheless, that such concerns are always
present will invariably implicate the strength of the showing a
defendant must make in terms of establishing probative value
under Rule 403. We believe this is why other federal courts that
have admitted such evidence have done so in the context of a
foundational showing that incorporates the elements of
similarity, breadth, and awareness.

        The “breadth” aspect of the foundation need not always
incorporate knowledge of the safety history of every unit of a
particular product; there may be gaps in even the most thorough
record-keeping system. Minor gaps can legitimately be said to
go to the weight of the evidence, rather than its admissibility. In
the present case, however, we are not dealing with disputed
testimony predicated upon a solid foundation containing isolated
gaps; we are dealing instead with a complete absence of records
that Beloit has attempted to remedy using a small fragment of
anecdotal testimony.

       We also note that our reference to the breadth of a
proponent’s evidentiary foundation should not be taken as
automatically barring evidence concerning an alleged absence
of prior accidents in cases involving a one-of-a-kind product, or

                                39
cases where only a small number of substantially identical units
have been sold. In cases involving a unique, one-of-a-kind
product, there is less concern that testimony regarding the safety
history of the single unit will present a distorted picture of the
overall risks associated with the product’s design. In cases
involving unique products or products with a small number of
identical units, concerns regarding the plaintiff’s access to
contrary probative evidence are lessened as well, because the
universe in which plaintiffs can seek such evidence is smaller
and more manageable.12

        Other concerns endemic to safety history evidence may
still exist, but we do not purport today to create a categorical
rule for all circumstances, instead leaving these issues in the
first instance to the sound discretion of district judges. We are
confident, however, that where Beloit has manufactured and
sold multiple Gloss Calenders over a span of several decades,
and where Beloit admits that it has compiled no information
concerning the safety history of these Gloss Calenders, it was
prejudicial error for the District Court to permit Beloit to extract
anecdotal testimony concerning a single Gloss Calender, and



       12
          Of course, in situations involving a one-of-a-kind product or
a small number of products, the smaller set of examples of
comparable prior use by persons other than the plaintiff may also
dilute the probative value of testimony concerning the product’s
safety history. All of these competing variables should be factored
into the trial court’s balancing analysis under Rule 403.

                                  40
then to use that testimony to argue in closing that “as far as the
evidence is concerned, the only accident we know of in 36 years
on the Gloss Calender was Mr. Forrest’s.”

III.   CONCLUSION

       The judgment of the District Court will be reversed and
the case remanded to the District Court for a new trial consistent
with this opinion.




                               41
Forrest v. Beloit Corp.

No. 04-2184

ALITO, Circuit Judge, concurring in the judgment.

        I agree that evidence of the absence of prior accidents
involving the gloss calendar at the plant in question should not
have been admitted and that the plaintiff is therefore entitled to
a new trial. If we were not constrained by prior circuit law, I
would join the majority in holding that the admission of such
evidence should be analyzed under the Federal Rules of
Evidence, but our court’s decision in Greiner v.
Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir.
1976), points toward the application of state law. In addition,
except for one passing reference in his District Court papers, the
plaintiff’s arguments at the trial level and on appeal focused
exclusively on Pennsylvania law and in particular on the
Pennsylvania Supreme Court’s decision in Spino v. Tilley, 696
A.2d 1169 (Pa. 1997), and therefore I am doubtful that an
argument based on Rule 403 of the Federal Rules of Evidence
is properly before us. However, because I see no conflict
between state and federal law on the point in question, I would
follow the path we took in Schulz v. Celotex Corp., 942 F.2d
204, 207 (3d Cir. 1991), and I would refrain from deciding
which law applies.




                               42
       Under either federal or state law, Beloit did not establish
an adequate foundation. Beloit did not introduce its own safety
records. Nor did it introduce evidence regarding the safety
history of a large number of similar machines. Instead, in cross-
examining two long-time employees, Beloit elicited testimony
about the absence of prior accidents involving the machine in
question. One of the employees, Edward Marshall, testified as
follows:

       Q. . . . You’ve never had an accident on the gloss
       calendar, correct?

       A. I never had an accident, no.

       Q. Okay. And you’re not aware of anyone other
       then (sic) Mr. Forrest that’s ever had an accident
       where his hand went through the gloss calendar
       correct? . . . .

       A. No. . . . I’m only aware of Paul, that’s all.

A-709. This was the entirety of Marshall’s testimony on this
point. Thus, he was not asked and did not state whether he
would have been aware of any accidents that occurred when he
was not present. Moreover, he stated only that he had not been
personally involved in any accidents on the gloss calendar and
that he was not aware of any accidents in which a worker’s hand
“went through the gloss calendar.” A-709. He was not asked

                               43
about and did not state whether he knew of other types of
accidents that might be relevant. In my view, Marshall’s brief
testimony did not provide the foundation required by either
Spino or the Federal Rules of Evidence.

       The other employee, William Brody, provided a bit more
information than Marshall, but his testimony was far from ideal.
Specifically, Brody’s brief testimony on this point focused
solely on injury-producing accidents and not on any other
accidents that might have been relevant. See A-669. In any
event, even if Brody’s testimony provided a barely adequate
foundation, the admission of Marshall’s testimony was
erroneous and could not be regarded as harmless. The
foundation requirement in cases like this is important, and this
requirement cannot be met in the casual way that Beloit
attempted here. For these reasons, I agree that the judgment of
the District Court must be reversed and the case must be
remanded for a new trial.




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