J-A11022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMES A. ANDERSON, JR., AS                         IN THE SUPERIOR COURT
 ADMINISTRATOR OF THE ESTATE OF                               OF
 VICKIE L. ANDERSON, DECEASED, AND                       PENNSYLVANIA
 JAMES A. ANDERSON, JR., IN HIS OWN
 RIGHT

                             Appellant

                        v.

 PIRELLI TIRE, LLC AND LEMANS
 CORPORATION D/B/A DRAG
 SPECIALITIES; AGV LAZER USA, LLC;
 HARLEY-DAVIDSON MOTOR COMPANY
 GROUP, LLC; SUSQUEHANNA VALLEY
 HARLEY-DAVIDSON A/K/A AND/OR
 D/B/A FAT WILLIE'S CYCLES, INC.

                             Appellee                  No. 1327 MDA 2016


                Appeal from the Judgment Entered August 19, 2016
                 In the Court of Common Pleas of Dauphin County
                     Civil Division at No(s): 2011-CV-8581 CV


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                          FILED OCTOBER 24, 2017

       James A. Anderson, Jr., as Administrator of the Estate of Vickie L.

Anderson, deceased, and James A. Anderson, Jr., in his own right




____________________________________________


       *   Former Justice specially assigned to the Superior Court.
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(“Anderson”) appeals from the August 19, 2016 judgment entered in the

Dauphin County Court of Common Pleas.1 We affirm.

       The trial court set forth the following procedural history:

               Anderson . . . brings this case as Administrator of the
            Estate of [Mrs.] Anderson [(“Decedent”)]. [Decedent] was
            a passenger on [Anderson’s] Harley Davidson motorcycle,
            being operated by him, when the rear tire experienced a
            blowout, resulting in a crash which killed her. The tire was
            identified as a Metzeler ME 880 tire, which is manufactured
            by [Pirelli Tire LLC, Lemans Corporation d/b/a Drag
            Specialties (“Pirelli”)].

Trial Ct. Op., 7/13/16, at 1 (“Post-Trial Op.”).

       Anderson      asserted    a   strict    liability   claim   against   Pirelli 2   and

Susquehanna Valley Harley Davidson a/k/a and/or d/b/a Fat Willie’s Cycles,

Inc. (“SVHD”), maintaining that the tire manufactured by Pirelli and sold to

Anderson by SVHD had a manufacturing defect that caused the accident.3 On

____________________________________________


       1Anderson captioned this as an appeal from the July 13, 2016 order
denying his post-trial motions. The final, appealable order, however, was the
judgment entered on August 19, 2016. Becker v. M.S. Reilly, Inc., 123
A.3d 776, 777 n.1 (Pa.Super. 2015) (orders denying post-trial motions are
interlocutory; the subsequent judgment is the final, appealable order).

       2   As noted by the trial court:

            [Anderson] filed a complaint alleging strict products liability,
            breach of warranty, negligence, wrongful death, and
            survival. Prior to trial, [Anderson] withdrew all causes of
            action for his own personal injuries as well as all claims of
            negligence with respect to Pirelli.

Post-Trial Op. at 2.

       Anderson also asserted a claim that the condition of the tire breached
       3

an implied warranty.

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December 4, 2015, Anderson filed a motion in limine to preclude the parties

from introducing issues and facts concerning negligence in Anderson’s strict

liability claim.    The trial court found that evidence regarding over-

deflection/under-inflation of the tire was admissible as evidence of causation,

but that Pirelli and SVHD could not argue negligence. N.T., 12/8/15, at 5-7.

      Anderson also alleged a strict liability claim against SVHD, AGV Lazer

USA, LLC (“AGV Lazer”), and Harley Davidson Motor Company Group, Inc. and

a negligence claim against SVHD related to a helmet that AGV Lazer

manufactured and that SVHD sold to Decedent. To defend against the claims

that the helmet was defective and that SVHD acted negligently in selling the

helmet, the defendants presented the expert testimony of Garry Brock, Jr.,

Ph.D., a biomechanical engineer. Anderson objected to Dr. Brock’s testimony,

claiming that Dr. Brock was not an expert in helmet design and safety and

that the scope of Dr. Brock’s testimony went beyond the fair scope of his

expert report.     The trial court overruled the objections.   See, e.g., N.T.,

12/16/15, at 38, 40, 41, 43.

      Following trial, a jury returned a verdict in favor of Pirelli, SVHD, and

AGV Lazer finding that neither the tire nor the helmet was defective, the

condition of the tire did not breach an implied warranty, and SVHD was not

negligent when it sold the helmet to Decedent.       On December 28, 2015,




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Anderson filed a motion for post-trial relief, which the trial court denied on

July 13, 2016. On August 11, 2016, Anderson filed a notice of appeal.4

        Anderson raises the following issues on appeal:

            1. Did the Trial Court err as a matter of law or abuse its
            discretion when it permitted [Pirelli and SVHD] to conflate
            and introduce issues of facts concerning negligence into
            [Anderson’s] strict liability claim against [Pirelli and SVHD]?

            2. Did the Trial Court err as a matter of law or abuse its
            discretion when it permitted defense forensic liability expert,
            Garry Brock, Jr., to testify regarding matters beyond the
            scope of his expertise?

            3. Did the Trial Court err as a matter of law or abuse its
            discretion when it permitted the defense forensic expert,
            Garry Brock, Jr. to testify regarding matters beyond the fair
            scope of his expert report?

Anderson’s Br. at 2-3.

   I.       Admission of Evidence

        Anderson first argues that the trial court erred by allowing Pirelli and

SVHD to present a comparative negligence theory in a strict liability

manufacturing defect case. Anderson claims that the questioning regarding

the steps taken by the Andersons to ensure their safety on the motorcycle,

the air pressure of the tire, and the weight carried on the motorcycle at the




____________________________________________


        Anderson’s notice of appeal was premature, as it was filed before
        4

judgment was entered on August 19, 2016. Despite this error, because
judgment has been entered, we address Anderson’s appeal. See Johnston
the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 513–14 (Pa.Super.
1995).


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time of the trip was evidence regarding the Andersons’ negligence and,

therefore, was improperly permitted.

      We apply the following standard to the trial court’s determination as to

the admissibility of evidence:

         When we review a trial court’s ruling on admission of
         evidence, we must acknowledge that decisions on
         admissibility are within the sound discretion of the trial court
         and will not be overturned absent an abuse of discretion or
         misapplication of law. In addition, for a ruling on evidence
         to constitute reversible error, it must have been harmful or
         prejudicial to the complaining party.

Gaudio v. Ford Motor Co., 976 A.2d 524, 535 (Pa.Super. 2009) (quoting

Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super. 2008)). We have found

that “[a] party suffers prejudice when the trial court’s error could have

affected the verdict.” Id.

      To prevail in a strict-liability cause of action, “the plaintiff must prove

that the product was defective, the defect existed when it left the defendant’s

hands, and the defect caused the harm.” Barton v. Lowe’s Home Ctrs.,

Inc., 124 A.3d 349, 354 (Pa.Super. 2015). This Court has stated that:

         [A] user’s negligence is not relevant if the product defect
         contributed in any way to the harm. However, where the
         defense offers evidence to establish that the accident was
         solely the result of the user’s conduct, and not related in
         any way with a product defect, it is relevant and admissible
         for the purpose of proving causation.

Madonna v. Harley Davidson, Inc., 708 A.2d 507, 509 (Pa.Super. 1998)

(emphasis in original); see also Bascelli v. Randy, Inc., 488 A.2d 1110,

1113 (Pa.Super. 1985) (evidence that plaintiff traveling at 100 miles per hour


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at the time of accident was “admissible for the purpose of showing

causation”); Gaudio, 976 A.2d at 542 (evidence of whether plaintiff was “in

position” at time of accident relevant to causation where theory of liability was

that air bag deployed too late; testimony that plaintiff was “out of position” at

time of accident was admissible, but trial court abused its discretion in

admitting testimony as to why he was out of position, such as because he

was reaching for radio).5

       Anderson testified that on the day of the accident, he noticed a

“blemish” on the motorcycle’s rear tire. Anderson’s strict liability claim was

premised on the theory that a foreign object got inside the tire during the

manufacturing process, that the tire left Pirelli’s plant with this defect, and

____________________________________________


       5 Here, we need not address whether evidence of a plaintiff’s
contributory negligence is admissible under the limited exceptions of voluntary
assumption of the risk, misuse of a product, or highly reckless conduct. See
Gaudio, 976 A.2d at 541. Rather, we address whether evidence of ordinary
negligence is admissible to establish the plaintiff’s conduct was the sole cause
of the accident. As the Gaudio court noted:

           Unlike these limited exceptions, “evidence of a plaintiff's
           ordinary negligence may not be admitted in a strict products
           liability action . . . unless it is shown that the accident was
           solely the result of the user’s conduct and not related in
           any [way] with the alleged defect in the product.” Charlton
           [v. Toyota Indus. Equip., 714 A.2d [1043,] 1047
           [Pa.Super. 1998] (emphasis in original). As we explained
           in Madonna, “a user's negligence is not relevant if the
           product defect contributed in any way to the harm.”
           Madonna, 708 A.2d at 509

Id. (emphasis in original).



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J-A11022-17



that the defect caused the blemish and the accident. N.T., 12/8/15, at 77-

80; N.T., 12/16/15, at 253-54. Pirelli’s and SVHD’s defense was that when

the tire left their control, there was no foreign object in the tire. Rather, the

tire was over-deflected because it had been overloaded and under-inflated

and the tire’s over-deflection caused the accident. See, e.g., N.T., 12/16/15,

at 169, 214, 222-23, 231.

       The trial court admitted the challenged evidence on two grounds: as

impeachment evidence and as causation evidence.6 Post-Trial Op. at 3-4. We

apply a deferential standard of review and conclude that the trial court did not

abuse its discretion.

       First, the testimony regarding the safety consciousness of the

Andersons, including that they took safety courses, that they reviewed a

checklist before riding the motorcycle, and that Anderson would have taken

the motorcycle to the shop if he had noticed the blemish while at home, was

properly admitted for impeachment.             Such evidence was relevant to the

credibility of Anderson’s testimony that he noticed a “blemish” on the tire

during the trip, see Pa.R.Evid. 611(b) (scope of cross-examination includes

“matters affecting credibility”), and defendants used the evidence for that

purpose during closing arguments, N.T., 12/16/15, at 215-19.

____________________________________________


       The trial court further concluded that Anderson’s testimony on direct
       6

examination “opened the door” to questions regarding safety. Post-Trial Op.
at 3-4. Because we conclude that the trial court did not abuse its discretion
in admitting the evidence for purposes of impeachment and causation, we
need not reach this finding.

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J-A11022-17



      Second, the evidence regarding the weight carried on the motorcycle

during the trip and the air pressure of the tire was properly admitted as

evidence relevant to causation. The trial court concluded:

            [T]he evidence in question is admissible under
         Pennsylvania law as it tends to establish that the accident
         was not caused by a defect in the tire, but rather was caused
         by Plaintiff’s failure to properly inflate the tire. At no point
         did the defense attempt to prove Plaintiff was negligent; the
         questions at issue were directed at causation. Thus, the
         Court was correct to admit the evidence at issue and
         Plaintiff’s claim is without merit.

Post-Trial Op. at 4. Based on our review of the record, we discern

no abuse of discretion.

      Additionally, the trial court properly instructed the jury that the

evidence was to be used only as evidence of causation. The trial

court instructed the jury that:

            With respect to [Pirelli and SVHD], [Anderson] claims
            that there was a manufacturer defect from a foreign
            object in the manufacturing process that caused the
            tire failure on May 29, 2005. [Pirelli and SVHD] deny
            any problem with the manufacturing process and
            assert the cause of the tire failure was underinflation,
            overdeflection. Anderson is not a defendant in this
            case. He is not a defendant in this strict liability claim.
            Concepts of negligence are not relevant or admissible
            in a strict liability claim. The evidence of under[-
            ]inflation, over[-]deflection and what Anderson saw or
            didn’t see on the tire at the gas station before the
            accident was admitted solely to the issue of causation.
            It was presented by [Pirelli and SVHD] to show the
            cause of the tire failure, not to show that Anderson
            was negligent. As I said, negligence has no part in a
            strict liability claim.



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J-A11022-17



N.T., 12/17/15, at 29.       Further, during opening statements and closing

arguments, Pirelli and SVHD never argued that Anderson was negligent.

Rather they argued the under-inflation and over-deflection of the tire caused

the accident. Accordingly, we conclude that the trial court properly admitted

the evidence.

   II.     Expert Testimony

         Anderson next argues that the trial court erred in permitting the expert

testimony of Dr. Brock because (1) he testified to matters beyond the scope

of his expertise and (2) he testified to matters beyond the fair scope of his

expert report.

         A. Beyond the Scope of Expertise

         This Court applies the following standard when determining whether a

trial court erred in qualifying a witness as an expert:

           “Whether a witness has been properly qualified to give
           expert witness testimony is vested in the discretion of the
           trial court.” West Philadelphia Therapy Center v. Erie
           Ins. Group, []751 A.2d 1166, 1167 (Pa.Super.2000)
           (citation omitted). It is well settled in Pennsylvania that the
           standard for qualification of an expert witness is a liberal
           one.       Rauch v. Mike-Mayer, []783 A.2d 815
           (Pa.Super.2001). When determining whether a witness is
           qualified as an expert the court is to examine whether the
           witness has any reasonable pretension to specialized
           knowledge on the subject under investigation. Miller v.
           Brass Rail Tavern, []664 A.2d 525 (1995).

Wexler v. Hecht, 847 A.2d 95, 98-99 (Pa.Super. 2004) (quoting George v.

Ellis, 820 A.2d 815, 817 (Pa.Super. 2003)).




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      In Pennsylvania, “the standard for qualification of an expert witness is

a liberal one.” Von Der Stuck v. Apco Concrete, Inc., 779 A.2d 570, 573-

74 (Pa.Super. 2001).      The Pennsylvania Supreme Court has set forth the

following test for trial courts to determine whether to qualify a witness as an

expert:

          [t]he test to be applied when qualifying an expert witness is
          whether the witness has any reasonable pretension to
          specialized knowledge on the subject under investigation. If
          he does, he may testify and the weight to be given to such
          testimony is for the trier of fact to determine. It is also well
          established that a witness may be qualified to render an
          expert opinion based on training and experience. Formal
          education on the subject matter of the testimony is not
          required [...]. It is not a necessary prerequisite that the
          expert be possessed of all of the knowledge in a given field,
          only that he possess more knowledge than is otherwise
          within the ordinary range of training, knowledge,
          intelligence or experience.

Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995); accord Reading

Radio, Inc. v. Fink, 833 A.2d 199, 207 (Pa.Super. 2003).

      Anderson maintains that the trial court erred in allowing SVHD to

question their expert, Dr. Brock, regarding motorcycle helmet design and

safety issues.    He claims that Dr. Brock was an expert in biomechanical

engineering, but had no education in or experience with motorcycle helmet

design and safety.

      The trial court found:

          In the instant case, while Dr. Brock was not offered as an
          expert in motorcycle helmet design, he was offered as an
          expert in biomechanical engineering. Further, Dr. Brock
          was certainly qualified as an expert in this field, holding a


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J-A11022-17


         Ph.D. in mechanical engineering with a focus in
         biomechanics from Cornell University. As a biomechanical
         engineer, Dr. Brock “calculate[s] forces, kinematics, body
         motions [to] . . . describe how the body moves and also
         injuries and things of that nature of the body.” N.T.
         12/16/15, at 21.       This Court determined that such
         specialized knowledge, skill, and experience was necessary
         to assist the Court in analyzing Plaintiff’s claims against
         Susquehanna as to the helmet and its relationship to
         [Decedent’s] injuries. Accordingly, [Anderson]’s claim that
         Dr. Brock improperly testified beyond the scope of his
         expertise is without merit.

Post-Trial Op. at 9. Given Pennsylvania’s liberal standard for qualification of

experts, we conclude that the trial court did not abuse its discretion in

permitting Dr. Brock to testify. Dr. Brock was qualified as a biomechanical

engineer. Anderson was permitted to, and did, question Dr. Brock regarding

his limited experience with helmets prior to this case.      This went to the

credibility of his testimony and to the weight the jury chose to give such

testimony.

      B. Within Fair Scope of Expert Report

      Anderson next maintains that Brock testified to matters beyond the

scope of his report, including standards, regulations, and testing applicable to

helmets. Anderson argues that he was denied an opportunity to adequately

prepare a meaningful response.

      We apply the following standard to claims that an expert testified

beyond the fair scope of his or her report:

            The admission of expert testimony is within the trial
         court’s sound discretion and we will not disturb that decision
         without a showing of manifest abuse of discretion. An
         expert’s testimony on direct examination is to be limited to


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        the fair scope of the expert’s pre-trial report. In applying
        the fair scope rule, we focus on the word fair. Departure
        from the expert’s report becomes a concern if the trial
        testimony would prevent the adversary from preparing a
        meaningful response, or which would mislead the adversary
        as to the nature of the response. Therefore, the opposing
        party must be prejudiced as a result of the testimony going
        beyond the fair scope of the expert’s report before
        admission of the testimony is considered reversible error.
        We will not find error in the admission of testimony that the
        opposing party had notice of or was not prejudiced by.

           The purpose of requiring a party to disclose, at his
        adversary’s request, the substance of the facts and opinions
        to which the expert is expected to testify is to avoid unfair
        surprise by enabling the adversary to prepare a response to
        the expert testimony.

Whitaker v. Frankford Hosp. of City of Phila., 984 A.2d 512, 522

(Pa.Super. 2009) (quoting Stalsitz v. Allentown Hosp., 814 A.2d 766, 779-

80) (Pa.Super. 2002)) (citations and quotation marks omitted).

     Here, the trial court found:

           [Anderson] argues Dr. Brock impermissibly testified
        concerning whether the American Society for Testing and
        Materials (ASTM) requires any type of standards for
        manufacturers of helmets. However, the record is clear that
        Dr. Brock reviewed the applicable ASTM standards in
        forming his report and took them into consideration in
        reaching his conclusions. See N.T., 12/16/15 at 32-36.
        Accordingly, this testimony was within the fair scope of his
        expert report and was, therefore, properly admitted.

           [Anderson] also claims Dr. Brock inappropriately testified
        regarding the standards of both the Department of
        Transportation (DOT) and the Snell Foundation applicable to
        motorcycle helmets. However, this claim is also meritless.
        Dr. Brock lists both the DOT standards and the Snell
        standards as documents which he reviewed on page 2 of his
        report. See Report of Dr. Garry Brock, 3/9/15, at 2.
        Further, Dr. Brock goes on to analyze the applicability of the
        Snell standards to Plaintiff's case on pages 12 -13 of his

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        report. See id. at 12-13. Accordingly, this testimony at trial
        was within the fair scope of his report.

           [Anderson] next challenges Dr. Brock’s testimony
        regarding the deposition of [Anderson’s] witnesses Dr. Eric
        Dohner and Dr. Kevin Toosi. Similarly, this claim is without
        support. Dr. Brock lists Dr. Dohner’s deposition as a
        document he reviewed on page 1 of his report. See id. at
        1. Additionally, Dr. Brock highlights, on pages 8-9 of his
        report, specific testimony of Dr. Dohner which he found
        relevant in reaching his conclusion as to whether the helmet
        was defective. See id. at 8-9. By the same token, Dr.
        Toosi’s report is listed on page 2 of Dr. Brock’s report and
        expounded on in detail on throughout pages 11 -16. See
        id. at 2, 11-16. Therefore, this testimony was properly
        admitted.

           Dr. Brock’s testimony concerning the addition of the
        headset to [Decedent’s] helmet was also within the fair
        scope of his expert report. Not only does Dr. Brock address
        the addition of the headset on page 12 of his initial report,
        he again addresses the issue in more detail on page 4 of his
        supplemental report, which was written after he inspected
        the helmet. See N,T. 12/16/15 at 60-61; see also Report
        of Dr. Garry Brock, 3/9/15, at 12; Supplemental Report of
        Dr. Garry Brock, 4/23/15, at 4. Thus, this testimony was
        properly admitted.

Post-Trial Op. at 6-7.   We conclude that the trial court did not abuse its

discretion in concluding that Dr. Brock’s testimony was within the fair scope

of his report, which listed and often discussed the complained of testimony.

     Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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