                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 14-1360
                                    _____________

                                 JAMES H. JACKSON,

                                                     Appellant

                                            v.

                             LOUISVILLE LADDER INC.;
                               W. W. GRAINGER, INC.
                                  _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 11-cv-01527)
                       District Judge: Honorable Yvette Kane
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 9, 2014

            Before: FISHER, JORDAN, and HARDIMAN Circuit Judges.

                              (Filed: September 16, 2014)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      James Jackson appeals the denial of his motion for a new trial by the United States

District Court for the Middle District of Pennsylvania. We will affirm.
I.     Background

       Jackson injured himself when he fell off a step ladder while investigating a ceiling

leak at Messiah College, his employer. Louisville Ladder manufactured the ladder.

Messiah College purchased the ladder from W.W. Grainger, Inc. (collectively, with

Louisville Ladder, “Appellees”). Asserting diversity jurisdiction, Jackson filed a

products-liability action in federal court against Appellees. Jackson’s Amended

Complaint alleged two causes of action under Pennsylvania law: negligence against

Louisville Ladder and strict liability against both companies. A primary contention

between the parties as the case proceeded was whether the Restatement (Second) of

Torts, which provides for liability regardless of fault, or the Restatement (Third) of Torts,

which includes a risk-utility analysis, applied to the strict-liability claims. Although the

Pennsylvania Supreme Court has not addressed the issue, the District Court determined

that, pursuant to our precedent, it would “apply … the Restatement (Third) of Torts to

Plaintiff’s strict liability claims.” (App. at 11.)

       Before trial, Appellees filed a motion in limine to preclude evidence of other step-

ladder accidents because Jackson “ha[d] not established that any of those incidents or

injuries were substantially similar” to his. (App. at 18.) The District Court granted the

motion. Following a six-day trial, the jury returned a verdict for Appellees. Jackson filed

a motion for a new trial under Rule 59 of the Federal Rules of Civil Procedure, which the

District Court denied. Jackson timely appealed that order.




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II.    Discussion1

        Jackson raises two issues on appeal. First, he argues that the District Court erred

in adopting the Restatement (Third) over the Restatement (Second) as applied to strict

liability. Second, he contends that the Court committed error by granting Appellees’

motion in limine precluding evidence of other accidents and injuries involving ladders

because those accidents were substantially similar to the one he suffered. Alternatively,

he argues that those past accidents, aggregated in the form of statistical and

“epidemiological studies,” are not subject to the “substantially similar” requirement.

(Appellant’s Br. at 12.) None of his arguments are persuasive.

       Regarding which Restatement applies to strict liability, it is unclear exactly how

Jackson thinks that issue should affect the instant appeal; he argues that “[t]his case will

be controlled by the [Pennsylvania] Supreme Court’s [d]ecision in Tincher v. Omega

Flex, Inc.” (Appellant’s Br. at 7.) The Pennsylvania Supreme Court has granted a

Petition for Allowance of Appeal in Tincher to decide the following issue: “Whether this

Court should replace the strict liability analysis of Section 402A of the Second

Restatement with the analysis of the Third Restatement.” 64 A.3d 626, 626 (Pa. 2013)


       1
         The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review whether a district court’s denial of
a motion for new trial under Rule 59 of the Federal Rules of Civil Procedure constitutes
an abuse of discretion. Klein v. Hollings, 992 F.2d 1285, 1289 (3d Cir. 1993). “Our
degree of scrutiny, however, differs depending on the [proposed] reasons for granting the
new trial.” Id. As to a decision based “purely on a question of law … we exercise
plenary review. Conversely, the district court’s latitude on a new trial motion is broad
[regarding] a ruling on a matter that initially rested within the discretion of the court, e.g.
evidentiary rulings … .” Id. at 1289-90 (citations omitted).

                                               3
(per curiam). That Court has also directed the parties in that case “to brief the question of

whether, if the Court were to adopt the Third Restatement, that holding should be applied

prospectively or retroactively.” Id. at 626-27. Jackson does not ask us to stay his appeal

pending Tincher’s resolution; instead, he only seems to hope that Tincher comes out in

his favor prior to the case’s disposition.

       In any event, we are bound, as the District Court was, by our previous

determination in Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009),

that the Pennsylvania Supreme Court would apply the Restatement (Third) of Torts. See

id. at 40 (“We predict that if the Pennsylvania Supreme Court were confronted with [a

strict-liability] issue, it would adopt the Restatement (Third) of Torts … .”). That

decision applies in this diversity action. “In the absence of a controlling decision by the

Pennsylvania Supreme Court, a federal court applying that state’s substantive law must

predict how Pennsylvania’s highest court would decide this case.” Berrier, 563 F.3d at

45-46. Jackson does not dispute that the District Court properly concluded that Berrier

controls. Accordingly, his argument fails.

       Regarding Jackson’s evidence-related claims, they are foreclosed by our decision

in Barker v. Deere & Co., 60 F.3d 158 (3d Cir. 1995), as the District Court correctly

concluded. Barker established that, in products-liability cases, evidence of prior

accidents is not relevant, and is therefore inadmissible, unless the accidents occurred

under “substantially similar” circumstances. Id. at 162. In Barker, we noted that the

“foundational requirement of establishing substantial similarity is especially important in

cases where the evidence is proffered to show the existence of a design defect.” Id. In

                                             4
other words, evidence of other accidents is not relevant under Rule 401 of the Federal

Rules of Evidence unless those accidents are shown to be substantially similar to the one

at issue. Id. at 162-63. Jackson did not introduce evidence that the additional accidents

occurred on the same ladder model as his or under similar circumstances. In fact, his

experts testified that the articles they relied on referred to all types of ladders. Thus, the

District Court did not err in precluding that evidence.

       Jackson also argues that the evidence of other accidents is actually

“epidemiological” data and that the requirement for substantial similarity is “not

applicable to epidemiological evidence.” (Appellant’s Br. at 15.) That argument is

without merit. Like the District Court, we are “not persuaded … that evidence of ladder

accidents is epidemiological in nature.” (App. at 8.) This case does not relate to

epidemiology, i.e., the study of the incidence of disease in large populations, and the

supporting cases cited by Jackson, dealing with epidemiological studies, are simply

inapplicable.2




       2
          Alternatively, Jackson argues that the Restatement (Third) of Torts changes the
other-evidence standard because it introduced a risk-utility balancing into strict products
liability. This argument confuses a substantive standard with the admissibility standard
set forth in the Federal Rules of Evidence. Our holding in Barker, relating to the
admissibility of evidence under Rule 401 of the Federal Rules of Evidence, is not
affected by a change in substantive products-liability law.
        Jackson also sets forth additional arguments straining to justify his position that
the District Court should have admitted the data regarding past ladder accidents. Those
arguments are without merit and warrant no further discussion. As set forth above, the
District Court’s evidentiary determination under Rule 401 was proper.
                                               5
III.   Conclusion

       We will accordingly affirm the District Court’s denial of Jackson’s motion for a

new trial.




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