J-A31020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN A. CANCELLERI AND                                 IN THE SUPERIOR COURT OF
ROSETTA CANCELLERI, HIS WIFE                                 PENNSYLVANIA

                             Appellees

                       v.

FORD MOTOR COMPANY

                             Appellant                       No. 267 MDA 2015


             Appeal from the Judgment Entered January 20, 2015
             In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 11-CV-6060


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                               FILED JANUARY 07, 2016

        Ford Motor Company appeals from the judgment entered in favor of

John A. Cancelleri and Rosetta Cancelleri in the Court of Common Pleas of

Lackawanna County following a strict products liability trial stemming from a

motor vehicle accident.        After careful review, we affirm based upon the

opinion of the Honorable James A. Gibbons dated March 2, 2015, which

incorporated Judge Gibbons’ opinion dated January 9, 2015.

        On   August    20,    2010,      John   Cancelleri   was   driving   south    on

Pennsylvania Route 307 in his 2005 Mercury Sable. A 2007 Ford Mustang,

traveling in the opposite direction, turned left into Cancelleri’s path.             The

Mustang collided with Cancelleri’s Sable at an angle in the left front of the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A31020-15



vehicle. Cancelleri was wearing his seatbelt, but his airbag did not deploy.

During the collision, Cancelleri’s body moved forward and he hit his head

against the windshield.   After Cancelleri received emergency treatment at

the scene of the accident, he was hospitalized at Community Medical Center

in Scranton where he was treated for a four-inch laceration on his scalp.

The next day, Cancelleri indicated that he was having difficulty feeling his

legs, and an MRI showed that he had suffered a C7-T1 disc herniation and

spinal cord compression. Spinal fusion surgery was performed immediately.

Since the accident, Cancelleri has been confined to a wheelchair, in addition

to suffering other medical problems, such as bladder problems, urinary tract

infections, and the onset of diabetes.

      Based upon the injuries stemming from the accident, Cancelleri

initiated the instant lawsuit against Ford Motor Company, the manufacturer

of the Mercury Sable, and Ray Price Motors, the seller of the car, for

negligence, strict liability, breach of implied warranty of fitness and/or

merchantability, and punitive damages.      His wife, Rosetta Cancelleri, also

brought a claim for loss of consortium in the suit.

      Trial in this matter began on August 11, 2014.       Prior to trial, the

Cancelleris had limited their claims to strict liability under crashworthiness

design defect and malfunction theories, breach of implied warranty, and loss

of consortium.   In addition, the Cancelleris withdrew all claims as to Ray

Price Motors on the final day of the eight-day trial. The jury unanimously

found in favor of the Cancelleris on the claims of crashworthiness design

                                     -2-
J-A31020-15



defect and loss of consortium,1 and the verdict included an award of

$5,940,706.86.

       Ford filed a timely post-trial motion on September 2, 2014, and oral

argument on the motion was held on November 14, 2014. Thereafter, on

November 19, 2014, our Supreme Court rendered its decision in Tincher v.

Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).2 Ford filed a post-argument

notice of supplemental authority regarding Tincher. The trial court issued

____________________________________________


1
  The jury did not find that Ford had breached any implied warranty and
ultimately was not required to decide any questions regarding the
Cancelleris’ malfunction claim.
2
   In Tincher, our Supreme Court addressed the standard of proof required
to determine whether a product is in a defective condition in strict product
liability cases. A plaintiff may pursue a strict liability claim asserting that a
product is defective under a “consumer expectations” theory, a “risk-utility”
theory, or both. Prior to Tincher, based upon the Pennsylvania Supreme
Court opinion in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978),
“the balancing of risks and utilities, when implicated, was an issue of law
dependent upon social policy to be decided by the trial court.” Tincher,
supra at 406. Tincher overruled Azzarello in this regard to hold that

       when a plaintiff proceeds on a theory that implicates a risk-utility
       calculus, proof of risks and utilities are part of the burden to
       prove that the harm suffered was due to the defective condition
       of the product.     The credibility of witnesses and testimony
       offered, the weight of evidence relevant to the risk-utility
       calculus, and whether a party has met the burden to prove the
       elements of the strict liability cause of action are issues for the
       finder of fact.

Id. at 407. However, the Tincher Court declined to adopt the Restatement
(Third) of Torts, such that Pennsylvania remains a Second Restatement
jurisdiction. See id. at 410.




                                           -3-
J-A31020-15



an opinion and order denying Ford’s post-trial motion on January 9, 2015,

and entered judgment against Ford on January 20, 2015. This timely appeal

followed.

      On appeal, Ford raises the following issues for our review, which have

been renumbered for ease of disposition:

      1. Whether the Supreme Court’s decision in Tincher requires a
         new trial because the trial court should have submitted the
         question of whether Plaintiffs’ vehicle was unreasonably
         dangerous to the jury, and because Ford should have been
         permitted to introduce evidence of applicable government and
         industry standards.

      2. Whether the trial court erred in excluding Insurance Institute
         for Highway Safety and National Highway Traffic Safety
         Administration crash tests, which would have significantly
         impeached Plaintiffs’ defect theory, solely because the tests
         were conducted by industry and government organizations.

      3. Whether the trial court erroneously instructed the jury on a
         malfunction theory that Plaintiffs had withdrawn, that was
         irrelevant to Mr. Cancelleri’s injuries, and that misstated the
         law regarding malfunction.

Brief for Appellant, at 4-5.

      The determination of whether to grant a new trial involves a two-step

process:

      First, the trial court must decide whether one or more mistakes
      occurred at trial. These mistakes might involve factual, legal, or
      discretionary matters. Second, if the trial court concludes that a
      mistake (or mistakes) occurred, it must determine whether the
      mistake was a sufficient basis for granting a new trial. The
      harmless error doctrine underlies every decision to grant or deny
      a new trial. A new trial is not warranted merely because some
      irregularity occurred during the trial or another trial judge would
      have ruled differently; the moving party must demonstrate to
      the trial court that he or she has suffered prejudice from the
      mistake.

                                     -4-
J-A31020-15



Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000) (citations omitted).

     We examine jury instructions

     to determine whether the trial court abused its discretion or
     offered an inaccurate statement of law controlling the outcome
     of the case. A jury charge is adequate unless the issues are not
     made clear, the jury was misled by the instructions, or there was
     an omission from the charge amounting to a fundamental error.
     This Court will afford a new trial if an erroneous jury instruction
     amounted to a fundamental error or the record is insufficient to
     determine whether the error affected the verdict.

Tincher v. Omega Flex, Inc., 104 A.3d at 351.

     A jury charge will be deemed erroneous only if the charge as a
     whole is inadequate, not clear or has a tendency to mislead or
     confuse, rather than clarify, a material issue. A charge is
     considered adequate unless the jury was palpably misled by
     what the trial judge said or there is an omission which is
     tantamount to fundamental error. Consequently, the trial court
     has wide discretion in fashioning jury instructions. The trial
     court is not required to give every charge that is requested by
     the parties and its refusal to give a requested charge does not
     require reversal unless the Appellant was prejudiced by that
     refusal.

Amato v. Bell & Gossett, 116 A.3d 607, 621 (Pa. Super. 2015).

     Ford’s first contention on appeal is that Tincher requires the grant of

a new trial because the jury was not asked to consider whether Mr.

Cancelleri’s Mercury Sable was “unreasonably dangerous.” More specifically,

Ford argues that the jury should have been asked to consider risk-utility

factors in making this determination.

     Ford correctly argues that consideration of whether a product is

defective or unreasonably dangerous was a question of law under Azzarello

and that Tincher has returned that determination to the finder of fact in


                                    -5-
J-A31020-15



strict product liability cases. However, Ford’s argument that a new trial is

necessary based upon Tincher is unpersuasive because Tincher did not

involve a crashworthiness case, nor did it mandate specific jury instructions

to be used in any type of strict liability matter. See Tincher, supra at 408

(decision “not intended as a rigid formula to be offered to the jury in all

situations.”)

      We note that in crashworthiness cases, the jury is required to

determine whether the vehicle was defective in design as well as whether an

alternative, safer, and practicable design existed at the time of design that

could have been used instead. Gaudio v. Ford Motor Co., 926 A.2d 524,

532 (Pa. Super. 2009). Thus, the jury’s considerations in crashworthiness

cases, including the instant matter, already involve “proof of risks and

utilities” regarding whether “the harm suffered was due to the defective

condition of the product.” Tincher, supra at 407. Additionally, we agree

with the trial court’s determination that the jury instructions in this matter

were neither erroneous nor prejudicial toward Ford, and we affirm on the

basis of Judge Gibbons’ thorough opinion.

      The fact that the instant matter is a crashworthiness case also bears

on Ford’s contention that a new trial must be granted because the trial court

precluded Ford from introducing evidence of applicable government and

industry standards.   Our Supreme Court specifically has “held that ‘such

evidence should be excluded because it tends to mislead the jury’s attention

from their proper inquiry,’ namely ‘the quality or design of the product in

                                    -6-
J-A31020-15



question.’” Gaudio, supra at 543 (quoting Lewis v. Coffing Hoist

Division, Duff-Norton Company, Inc., 528 A.2d 590, 594 (Pa. 1987)).

Tincher does not, nor does it purport to, affect the applicability of the

rulings in Gaudio and Lewis.           Based upon precedent that remains

unchanged, the trial court determined that the proposed evidence was

inadmissible. We agree and rely upon the trial court’s detailed opinion.

      Ford next argues that the trial court erred by precluding Ford from

introducing evidence of crash tests conducted by government and industry

organizations. Ford contends that the crash tests are relevant to impeach

the Cancelleris’ expert witness, Christopher Caruso.      However, as the trial

court notes, “Caruso could not be impeached with evidence of industry

standards previously precluded by this [c]ourt or on tests that were not

elicited on direct examination.”    Trial Court Opinion, 1/9/15, at 56.      We

discern no error in precluding evidence of the crash tests in question and

affirm based upon the thorough analysis of the trial court.

      Finally, Ford asserts that the trial court erroneously instructed the trial

court on a theory of malfunction.     We note that a plaintiff is permitted to

proceed simultaneously on design defect and malfunction theories in a

crashworthiness case. See Raskin v. Ford Motor Co., 837 A.2d 518 (Pa.

Super. 2003).   As to the trial court’s decision to instruct on the theory of

malfunction and on the precise instruction provided, Judge Gibbons’ opinion

comprehensively discusses the reasons the instructions were not given in




                                      -7-
J-A31020-15



error and did not result in prejudice toward Ford.        We rely upon Judge

Gibbons’ opinion in finding this claim to be without merit.

      We affirm the judgment entered based upon Judge Gibbons’ opinions

filed March 2, 2015 and January 9, 2015, and we direct the parties to attach

a copy of the trial court’s opinions in the event of further proceedings.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2016




                                     -8-
                                                                                              Circulated 12/07/2015 09:49 AM




JOHN A. CA,NCELLERI and                                                 In the Court of Common Pleas
ROSETTA CANCELLER!, His Wife,                                           of Lackawanna Coµp.ty ,._,
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    RAY PRICE MOTORS, INC.,                                                                           r:::.           ';:3          ----
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                  Defendants                                            No. 2011-CIV-6060

                            MEMORANDUM AND ORDER ·
                   DENYING DEFENDANT FORD'S POST~TRIAL MOTION

    GIBBONS,).

I. Introduction

          This post-trial motion arises from a strict products liability case that ended with a unanimous

jury verdict in favor of Plaintiffs John Cancelleri (hereinafter "Cancelleri") and Rosetta Caocelleri,

his wife, and against Defendant Ford Motor Company (hereinafter ''Ford'') in the amount of

$5,940,706.86.1 After approximately eight days of trial and approximately two hours and thirty

minutes of deliberations, the jury found that (1) the airbag/ restraint system in Cancelleri's 2005

Mercury Sable was defectively designed in that the car's driver's side airbag failed to deploy when

Cancelleri, while driving approximately forty-five miles per hour, was hit at an offset front angle; and

(2) this defect factually caused Cancelleri's C7-T1 clisc herniation, spin.al cord compression, and

lower e~tremity paralysis.

          Ford now argues that it is entitled to a judgment ootwithsta.oclingthe verdict (hereinafter

"JNOV") because there was not enough evidence to sustain Cancell~'s crashworthiness and

malfunction claims and, consequently, not enough evidence to sustain his wife's loss of consortium


I The Cancelleris wiihd,rew their claims against Defendant fuy Price Motors, Inc. without objection on the morning of
this trial's last day, August 21, 2014. Notes of Testimony (hereinafter "N.T.'), 8:9-20, Aug. 21, 2014 (Nardozz:t).
                                                                                               - --- ·--            ··-- ··-
                                                                                                      Circulated 12/07/2015 09:49 AM




            claim. Alternatively, Ford argues that it is entitled to a new trial based on a litany of claimed errors,

            namely our refusal to grant Ford a compulsory nonsuit and directed verdict, erroneous and

            prejudicial jury instructions, allo~g a prejudicial verdict form, our preclusion of surrogate studies

            performed by Ford experts, our refusal to apply the Restatement (Ibird) of Torts and admit
                                    .
            evidence of industry standards, and our exclusion of industry testing. For the following reasons,

            Ford's Motion is denied

            Il. Factual Background and Procedural History
                    Up u.otil the afternoon of August 20, 2010, John Canccllcri was ao active eighty-three-year

            old. An Ami.y Veteran of the Korean War, he testified that he often walked "[a]ppro:rimatclytwo

            miles" around his neighborhood in the moming, and he sometimes walked additionally around Lake

            Scranton in the aftcmooo. Video Dep. Tr. of John Canccllcri (hereinafter "D.T."), 63:6-13; 13-

            14:20-6, 12/07 /11. He further testified that he       cut   grass, operated a snow blower, and gardened

            regularly without issue up until the chy of his accident. Id. at 14:7-24; 63-64:18-15. These points of

            testimony were undisputed and corroborated at length by Cancellezi's wife of 59 years, Rosetta, his

            neighbor Thomas Miloard, and his grandson Andrew Kaminski. Su genero~ Notes of Testimony

            (hereinafter "N.T.''), 47-49:19-7, 08/18/14 (McCool)2; 22-32, 08/15/14 (McCool). While Cancelled

            also explained that he did all of the grocery shopping because Rosetta had never driven, Rosetta

            herself explained that "[h]e drove [her] anyplace [she) wanted to go from rooming until night,

            church, shopping, visiting." D.T., 11:13-14; 14-15:25-4; N.T., 48:5-13, 08/18/14 (McCool). On April

            25, 200~, the car be chose to drive was a brand new 2005 Mercury Sable purchased from Ray Price

            Motors and manufactured by Ford. D.T., 33:3-10.

                    At about 2:35pm on August 20, 2010, Cancellezi was driving alone in his Sable &om a

            farmer's market outside of Scranton to his home in Covington Township. D.T., 7:4-6; 23:1-7; N.T.

            2For the convenience of those reviewing the record, all cited Notes of Testimony are identified not only by page
            oumbcr(s), line nwnbct{s), and date, but also by the last name of the on-dury court reporter,

                                                                   2


--- -   -       -- ---     ------·                                                                                                     _,
                                                                                    Circulated 12/07/2015 09:49 AM




11:9-20, 08/13/14 (McCool). While traveling south in the right lane of Route 307 in Spring Brook

Township at "about forty to forty-five miles" per hour, Cancclleri was hit at an offset front angle by

a 2007 Ford Mustang traveling north that "turned left and did not yield to [Cancelleri] coming down

in the other direction." N.T., 15-16:20-3; 21:15-17; 24-25:17-4, 08/13/14 (McCool); D.T., 27:15-17.

This testimony was corroborated by Donald Phillips, P.E., an expert in accident reconstruction,

occupant kinematics, and the operation of seatbelt systems, who testified that the Sable "was doing

about 46 miles an hour prior to impact" with the Mustang, and that the crash "was an offset left

front collision ... [at] about 15 degrees to the left of center," or "basically almost through the left

front headlight." N.T., 26:17-18; 22:23-25; 23:6-7, 08/14/14 (Nardozzi). Cancelled testified that he

did not see the Mustang prior to impact and, therefore, could not recall whether he had time to

apply his brakes. D.T., 25:18-20; 27:10-14; 28:6-10.

        Despite wearing his seatbelt, Cancclleri's airbag did not deploy. Id. at 7-8:25-8; 7:21-24;

30:23-25. He testified that when the collision occurred, he "went forward" and "hit [his] head

against the windshield." Id at 7:18-24; 26:12-14. At trial, Covington Emergency Services (hereinafter

"EMS") Provider Roseann Hoanzl testified consistently with Cancellezi's account, as she described

treating Cancelleri just after the accident for a "contusion". and "laceration on the top of his head

with uncontrolled bleeding." N.T., 33:8-16; 43:23-25, 08/13/14 (McCool). Biomedical engineer Dr.

Jamie R. Williams, Phf), also testified that the "damage to the windshield ... just to the left of the

steering wheel," Cancclleri's "path travel" upon impact, and bis "general occupant kinematics" are

all "consistent with the laceration to the top of his head" because the Sable's other "interior

structures," namely the steering wheel, roof, and A-pillar, "could not have caused the laceration .... "

N.T., 47-49:13-11, 08/15/14 (Smolskis).

        Both Cancelleri and the State. Police Officer who investigated the accident, Trooper First

Class Edward Boetcher, testified that just after the collision, the Sable was forced off the .tight side


                                                   3
                                                                                        Circulated 12/07/2015 09:49 AM




of the road toward a row of pine trees, where it eventually "came to rest" against one of the trees.

N.T., 15-16:20-10,    25:5-18, 27-28:21-8, 08/13/14 (McCooQ; D.T., 28:12-23. By that point, the

Sable's passenger's side airbag had al.ready deployed despite the passenger-seat being empty, and

Cancclleri testified that the passenger's side airbag "went off right away" after the collision and not

when the Sable went into the trees. D.T., 7:21-24; 30-32:16-4. EMS Provider Hoan.zl testified that

Cancelleri was alert and conscious during treatment, and that he received a perfect score on the

Glasgow Coma Scale, which she stated is "a scale that we use to determine bow alert and how with

it [patients] are." N.T., 39-20:19-17, 08/13/14 (McCool).

        Dr. Michael David Wolk, M.D., testified that, after receiving immediate on-site emergency

treatment, Cancelleri was hospitalized at Community Medical Center in Scranton where be was

treated for the four-inch laceration to his scalp. N.T., 12-13:12-12,        08/18/14    (Gliem). On the

following day, Cancclleti "indicated that he had difficulty feeling ... his legs," and an .MIU was taken.

Id. at 13:13-20. A subsequent MRI taken on August 22, 2014 revealed that Cancclleri suffered a C7-

T1 disc herniation and spinal cord compression, and he consequently underwent immediate spinal

fusion surgery. Id. at 14-18:7-23. Despite the surgery, Dr. Wolk testified that Cancclleri is "not going

to recover" and that be cw:rently has "incomplete tetraplegia" as a result of his accident, "which

basically means [his condition] affects all four extremities." Id. at 56:9-1 O; 24:5-19. Significantly, Dr.

Wolk concluded that Cancelleri's spinal cord injury "came as a result of [his] cervical disc

herniation," and that the "cervical disc herniation was ... a result of the motor vehicle accident." Id.

at 53-54:25-3. Dr. Wolle further testified that, since his accident, Cancelled has largely been confined

to a wheelchair, and that he has suffered from bladder problems and urinary tract infections, a

coccyx ulcer, and the onset of diabetes, all of which are attributable to his accident. Id. at 33-34: 1-2,

30:8-11, 35-36:19-'16; 53:18-6; 55-5~:8-6.




                                                    4
                                                                                  Circulated 12/07/2015 09:49 AM




        As a result of his accident and injuries, Caocelle.ci sued Ford aod .Ray Price Motors on

October 11, 2011 for negligence,      strict liability, breach of implied warranty of fitness and/ or

merchantability, aod punitive damages. See Pls.' Compl., 10/11/11. His wife Rosetta sued both for

loss of consortium. Id. By the start of trial oo August 11, 2014, the Cancelle.risbad narrowed tbcit

claims to strict liability under the crashworthinessdesign defect and malfunction theories, breach of

implied wauanty (also known as "failure to ~arn" or "duty to wam"), and loss of consortium. On

the last day of trial, the Cancelleris withdrew their claims against Ray Price Motors without

objection. N.T., 8:9-20, 08/21/14 (Na.rd.ozzi). After approximately eight days of trial, and

'approximately two hours and thirty minutes of deliberations, a jury unanimously found in favor of

the Cancellc.cison their crashworthiness design defect and loss of consortium claims in the amount

of $5,940,706.86. See Verdict, 08/21/14.   Jury   members did not find that Ford had breached any

implied w~anty, and they were ultimately not asked to decide any questions related to the

Cancelleris' malfunction claim. Id.

        Ford promptly filed this Post-Trial Motion on September 2, 2014 along with its Brief in

Support on October 20, 2014. Pursuant to our briefing schedule, the Cancclleris responded with

their Brief in Opposition on November 5, 2014, and an oral argument was held on November 14,

2014. Following our Supreme Court's decision in Tincher v. Omega Flex, Inc, --- A.3d ---, No. 17

MAP 2013, 2014 WL 6474923 (Pa. Nov. 19, 2014), Ford filed a Post-Argument Notice of

Supplemental Authority on November 24, 2014 to which the Cancelleris responded on December

15, 2014. Not to be outdone, Ford responded with a Reply to the Cancelleris' Response on

Christmas Eve. The Cancelleris then filed a Surreply on New Year's Eve.

III.The New Standatd for Strict Liability in Tort ·

       We first acknowledge that our Supreme Court bas recently held that a plaintiff pursuing a

cause upon a theory of strict liability in tort, such as the design defect theory under the


                                                   5
                                                                                                Circulated 12/07/2015 09:49 AM




    crasbwortbiness     doctrine or the malfunction       theory, must    initially "prove that the product is in a

    'defective condition .... Tincher, 2014 WL 6474923, at *1. "The pla.i.otiff may prove defective condition

    by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary

    consumer, or that (2) a reasonable person would conclude that the probability and seriousness of

    harm caused by the product outweigh the burden or costs of talringprecautions." Id The plaintiff is

    "the master of the claim in the first instance," and therefore, may bring his or her strict liability claim

under the first theory, the "consumer expectations" theory, or the second theory, the "risk-utility"

    theory, or both. Id. at *68. The burden of production and persuasion in such a case is by a

preponderance of the evidence. Id. at *1. Because our Supreme Cow:t has also recently declined to

adopt the Restatement (Third) of Torts: Product Liability §§ 1 et seq., the standards set forth under §

402A of the Restatement (Second) of Torts remain applicable to our determinations. Id. at *1, *62

    ("Pennsylvania remains a Second Restatement jurisdiction .... "), The latter states:

                § 402A Special Liability of Seller of Product for Physical Hann to User or
                Consumer

                (1) One who sells any product in a defective condition unreasonably dangerous
                    to the user or consumer or to his property is subject to liability for physical
                    harm thereby caused to the ultimate user or consumer, or to his property if

                      (a) the seller is engaged in the business of selling such a product, and

                      (b) it is expected to and does reach the user or consumer without substantial.
                        change in the condi~on in which it is sold

                (2) The rule stated in Subsection (1) applies although

                      (a) the seller bas exercised all possible care in the preparation and sale of his
                          product, and

                      (b) the user or consumer has not bought the product from or entered into
                         any contractual relation with the seller.'




3   Tbe tean "seller' includes the "manufacturer" of a product. Restatement (Second) of Torts§ 402A cmt. f (1965).

                                                            6
                                                                                                       Circulated 12/07/2015 09:49 AM




Restatement (Second) of Torts           § 402A (1965). "In order to prevail in such a product liability case,

the plaintiff .tnust establish: (1) that the product was defective;                 (2) that the defect existed when it left

the hands of the defendant; and (3) that the defect caused the                      h~-" Parr ti. Ford Motor Co., - A.3d

--,   No. 2793 EDA 2012, 2014 WL 7243152 (Pa. Super. Dec. 22, 2014) (citing                             &ott   ti,   Aria Trend,

Inc., 7 A.3d 830 (Pa. Super. 2010), ·ajf'd, 55 A.3d 1088 (Pa. 2012)). "A product is defective 'when it is

not safe for its intended use."'       Id. (quoting if7einer ti. Am. Honda Motor Co., Inc, 718 A.2d 305, 308

(Pa. Super. 1998)).

IV. Standard of Review for Judgment Notwithstanding the Verdict

        Ford first claims that it is entitled to judgment as a matter of law on the Cancellezis' design
                             ..
defect, malfunction, and loss of consortium claims, and that it is therefore entitled to a JNOV. See

Def.'s Motion for Post-Trial Relief (hereinafter "Def.'s Post-Trial Motion'\                           Part    n,    09/02/14.

Specifically, Ford contends          that    (1) "[t]hcre was legally insufficient             evidence"      to sustain the

Cancelleris' design defect claim under the crashworth.ioess doctrine, Def.'s Post-Trial Motion, ~ 45;

(2) the Cancellezis' preservation of the Sable and advancement of a design defect claim renders the

malfunction     theory inapplicable,        Id. at   1   67;   1~        71-74; (3) even if the malfunction theory were

applicable, the Cancelleris "presented insufficient evidence of mal..fuoction and causation to support

a malfunction theory jury charge,"          Id. at if 81; and (4) Rosetta Cancelleri.'s "loss of consortium claim

fails as a matter of law" because "there was insufficient evidence to support ... Canccll.eri's design

defect and product malfunction claims,"              Id. at 1 82.

        "[AJ judgment notwithstanding the verdict is appropriate only if the movant is entitled to

judgment as a matter of law, i.e., if the evidence presented at trial was such that no two reasonable

minds could disagree that the verdict should be in favor of the movant."                       Tincher, 2014 WL 6474923,

at *17 (citation omitted);        Bmpzi? Trucking Co.          ti.   &ading Anthracite Coal Co., 71 A.3d 923, 932 (Pa.

Super. 2013);   Haan   ti.   Wel/J, No. 11-CV-6813, 2013 WL 5616926, at *4 (Pa. Com. PL Lackawanna

                                                                     7
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Oct 11, 2013) (citation omitted),    affd, 103 A.3d 60 (Pa. Super. 2014). As such, "[a]o award of

judgment notwithstanding the verdict 'is appropriate only if, reading the record in the light most

favorable to [the verdict winner], and affording [the verdict winner] the benefit of all reasonable

inferences, we would conclude that there is insufficient competent evidence to sustain the verdict."

Tincher, 2014 WI. 6474923, at *17 (quoting Pa. Dp't     of Gen. Servi. u: US.     Minero/ Prods. Co., 898 A.2d

590, 604 (Pa. 2006)); Haan, 2013 WL 5616926, at *4 (When considering a request for a judgment

notwithstanding the verdict, "the evidence must be viewed in the light most favorable to the verdict

winner, who must be afforded the benefit of every reasonable inference arising from the trial

evidence, while all unfavorable testimony and inferences are rejected") (citing Empin Tmcleing Co.,

71 A.3d at 932).

    A. The Csncelleds proved the elements necessary to estabHsJitheir design defect claim
       under the cresbwortbiness doctrine by a preponderance of the evidence, and
       therefore,Ford'srequest for a ]NOV on this claim is denied.

        Ford contends that it is entitled to judgment as a matter of law on the Cancelleris' design

defect claim because "[t)here was legally insufficient evidence" produced at trial that (1) "the driver

airbag system and restraint system of the 2005 Mercury Sable was defective," (2) Cancellezi's

"injuries (let alone his enhanced injuries, as [the Cancelleris we.re] required to prove) were

attributable to the purportedly defective design," and (3) the alternative designs put forth by ~e

Cancelleris' airbag design and restraint system expert, Christopher Caruso, P.E., "would have

prevented or reduced [Cancellezi's]injuries, as is a required element of proof for a plaintiff in a

crashworthiness case." Def!s Post-Trial Motion,        45-46. We disagree.

        Our Superior Court has written that "[t]be crashworthiness doctrine is a subset of strict

products liability law that most typically arises in the context of vehicular accidents." Gaudio u: Ford

Motor Co., 926 A.2d 524, 532 (Pa. Super. 2009) (citing Colvilk   11.   Cro1P11 Eq11ip. Corp., 809 A.2d 916, 922




                                                   8
                                                                                      Circulated 12/07/2015 09:49 AM




"(Pa. Super. 2002), appeal denied, 829 A.2d 310 (Pa. 2003)), appeal denied, 989 A.2d 917 (Pa. 2010).

Wrote the court,

            First explicitly recognized as a specific subset of product liability law by this
            Court in Ivpetz. v. Deere & Co., Inc., 435 Pa.Super. 16, 644 A.2d ·1213 (1994), the
            term "crashworthiness" means "the protection that a motor vehicle affords its
            passenger · against personal injury or death as a result of a motor vehicle
            accident" Id. at 1218. The doctrine extends the liability of manufacturers and
            sellers to "situations in which the defect did not cause the accident or initial
            impact, but rather increased the severity of the injury over that which would have
            occurred absent the design defect" Id To avoid liability, a manufacturer must
            design and manufacture the product so that it is "reasonably crashworthy," or,
            stated another way, the manufacturer must include accidents as intended uses of
            its product and design accordingly.Id.

Gaudio, 926 A2d at 532; aaord Parr, 2014 WL 7243152, at .*3. Ultimately, a crashworthin.ess claim

requires proof of three elements: (1) the plaintiff must prove that the design· of the vehicle was

defective, and that at the time of design an alternative, safer, and practicable design existed that

could have been incorporated instead; (2) the plaintiff must identify those injuries he or she would

have received if the alternative design had instead been used; and (3) the plaintiff must demonstrate

what injuries were attributable to the defective design. Gaudio, 926 A.2d at 532 (citing KHpetz, 644

A.2d at 1218).

        1. The Cancelleris proved that the design of the 2005 Mercury Sable was defective,
           and there was an alternative, safer, and practicable design that existed at the time
           of its design ·that could have been incorporated instead.

        First, the Cancellcris proved at trial by a preponderance of the evidence that "the design of

the vehicle was defective, and that at the time of design an alternative, safer, and practicable design

existed that could have beenincorporated instead." Gaudio, 926 A.2d at 532 (citing Kupetz; 644 A.2d

at 1218). To do so, the Cancelleris relied on the testimony of Phillips and Caruso.

       Phillips testified that the Sable's "seat belt buckle has what is called a pretensioner" that fires

and "shortens the buckle's slack" by "about two to two and a half inches" upon command from the

air bag control module. N.T., 28:1-16, 08/14/14 (Nardozzi). Based on        his inspection of the Sable,

                                                   9
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 Phillips concluded that "the driver's side seat belt buckle preteasioner   fired   in this crash so that the

 air bag control module saw an impact and commanded that pretensioner to detonate." N.T., 28:17-

 21, 08/14/14 (Nardozzi); .ree also id. at 28:1-3 ("[I]he sheath of the buckle is down almost even with

 the cushion. And you don't know it yet but it looks kind of short."). He explained that a seat belt

system "is designed to pay out with the expectation that under certain crash severities there's going

to be an airbag there waiting for you," and that this point of exchange between the seat belt and the

airbag uis called the hand off." Id. at 41-42:20-2.

        Phillips also opined that the Delta V, which is the change in velocity upon impact or "how

much speed [it would] take to create [the] amount of damage" in a crash, experienced by the Sable

was "approximately 20 miles per hour." Id. at 25:13-16; 41:5-7. He confu:med the twenty miles-per-

hour Delta V with "a download of the [Sable's] air bag control module." Id. at 41:9-11. This

calculation, he said, helped determine "what forces were imparted to the occupants and what forces

they would have seen in the collision." Id. at 26:13-15. Ultimately, Phillips concluded that "a 20 mile

pe.r hour [Delta V] crash should have been an air bag deployment." Id. at 42:10-12.

        Thereafter, Caruso testified with regard to a specific design defect related to the Sable's front

crash sensor ("PCS") and mounting structure. He first explained that the way in which the PCS is

mounted is "essential to whether or not you are going to be able to deploy airbags correctly when

needed." N.T., 28:18-22, 08/14/14 (McCool). "It's important for the senor wherever it is located in

the vehicle to see that crash pulse as it develops as quickly as possible and as uniformly as possible,"

he said, and that "a sudden Joss of iufozmatioo can have a huge impact on the ability of [the] crash

sensor to do its job." Id. at 33:17-20; 34: 4-6. For angled crashes and crashes "that [arc) offset and

(don't) actually hit the sensor itself," Caruso explained that the crash pulse transmission needs to get

to the mounting structure and "continue to transmit [the crash] information to the sensor until it

makes its decision," i.e., "deploy" or "no deploy." Id at 34-35:25-12; 35-36:25-1. The sensor


                                                  10
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information .is then transmitted to "the p.rimaty airbag controller" known as the Restraint Control

Module, or "RCM," which "physically turns on the airbags when the appropriate             crash sensing

informatioa has been received ... and get(s]. them to deploy." N.T., 55-56:20-6, 08/14/14 (McCool).

        In articulating   his design defect theory, Caruso       testified   that be made    "an initial

determination   that that the crash sensor should have provided enough input to create an airbag

deployment for Mr. Cancelled,"     Id. at 37:5-8. He did so by calling attention to the Sable's upper

radiator support, or upper radiator tic bar, and noting that such supports usually go "all the way

across the structure" and "hold the radiator and some other components." Id. at 38:9-13. "But in

this case," be said, the Sable's design was such that the upper radiator support "actually dropjped]

down and cradle[d] the [FCS)." Id. at 38:14-20. This is significant because "all of [the) crush, all of

the motion of the two vehicles colliding . . . [was] going into the structure, going to this [fiberglass)

cross member." Id at 38:18-20; 68:19-23. It was this "fiberglass structure that directly transmit[ted

the] crash pulse to [the FCS]." Id. He opined that during Cancelleri's collision, the Sable's front

"bumper collapsed underneath (the FCS] due to the crush," but that the FCS "barely moved." Id. at

3 7-38:21-6. Specifically, the FCS was still positioned in f:tont of the vehicle, "hanging out in the

breeze while [the Sable was] actually crushing and defo.aning .... " Id. at 39:10-14. This occurred

because the fiberglass cross member, which cradled the FCS, was "completely severed from the

[FCS]," the result of which was an FCS "losing the [crash] information" because "[n]one of fr [was]

translating to where the FCS [was)." Id. at 38:15-22. Caruso theorized that at that point in the

accident, the FCS was "no longer in the crush zone" and "no longer receiving the crash," and

therefore, the FCS had "no idea how severe this crash [was]." Id. 'at 39:3-9; 15-17.

       Additionally, Caruso relied on Ford Crash Test No. 11226 (hereinafter "Test No. 11226") to

determine that Cancelleri's airbag should have deployed In particular, be explained that the collision

and resulting damages in Test No. 11226, which was a forty-five miles per hour vehicle-to-vehicle


                                                  11
                                                                                                         -----              -      --   -   -


                                                                                                         Circulated 12/07/2015 09:49 AM




             frontal offset crash where "the vehicles only overlap[pedJ 25 percent of the front end," are very

            similar to those in Canc_elleri's accident. N.T., 45:18-21; 46-47:21-3, 08/14/14 (McCool); Pls.'                 Ex.

             87B. Wi~ this in mind, he explained that "[a]ccording to Ford's requirements, this test must deploy

            the airbag for the unbelted and belted occupants" "within about 40 milliseconds," and that they in

            fact did so during the test. N.T., 48:2-4; 49-50:3-7, 08/14/14 (McCool). According to Caruso, the

            critical differences between Test No. 11226 and Cancelleri's accident related to the fiberglass cross

            member. In particular, Caruso explained that there was fracturing to the fiberglass cross member in

            Test No. 11226, but that it "[didn't], appear to have completely separated" because the FCS was

            obviously still connected      Id. at 54:7-12. There, the vehicle's bumper "was pushed in" and the FCS

            "moved more or less with the position of the bumper." Id. at 54:15-18. Here, however, the Sable's

            "whole bumper [was] twisted and pushed back," but "the structure holding [the FCS was] 3, 4, 5

            inches out in front" because it was fractured and separated from the fiberglass cross member.                 Id. at

            40:1-12. Caruso therefore concluded, as an expert in design engineering specifically with regard to

            -automotive safety design engineering, that the Sable's airbag/ restraint system, "including the vehicle

            structurej] was defective and unreasonably dangerous." Id. at 13:20-24; 77:13-15.

                       With regard to technologically and economically feasible alternative designs available to Ford

            for the 2004-2005 model year, Caruso testified that the upper radiator tie bar could have been

            "properly designed not to fracture and sever" such that the fiberglass structure could have been

            imbedded with a thin sheet of aluminum to preserve the structure's integrity and prevent a "crack in

            every single crash;'    Id. at.73:14-19; 73-74:21-2; 90-91:20-9. On the other hand, if "there was some

            very good reason to keep the system with [only] the fiberglass," Ford could have "put two sensors

            up front, one on the left, one on the right directly in the crush zone!'                  Id. at 73-74:15-8.4 He

            explained that with a two sensor system, "There would be no issue of whether the structure cracks

            ( Ford's design analf!is engineer, Ram Krish.Mswami, PhD, verified that the two-sensor system was aV'lliablc to Ford
            during the 2004-2005 model ye:u:. N.T., 84-85:25-5, 08/20/14 (McCool).

                                                                    12


·--------          -     -    ---             - - - -~--                        ------
                                                                                  Circulated 12/07/2015 09:49 AM




 or breaks because· the sensor is going to experience the entire crash anyway" because "~]t's right
                                                 •                                                 1



where the crash is occurring." N.T., 74:9-12, 08/14/14 (McCool). While a single crash sensor costs

about $5.00, the additional wiring and assembly would cost about "$7 to $7.50 to add another senso.r

and make it a dual front crash sensor system." Id. at 74-75:20-7. Notably, the Sable's RCM was·fully

capable of handling more than one front crash senso.r. Id. at 75:8-11.

        Based on the foregoing testimony, the Cancelleris cleatly satisfied the first element of Gaudio.

        2. The Cancelleris proved that Cancelleri would not have endured a C7-T1 disc
           herniation if the alternative designs bad instead been used.

       · Second, the Cancellezis identified at trial those injuries Mr. Cancelled "would have received

if the alternative design had instead been used," Gaudio, 926 A.2d_at 532 (citing Ivtpetz, 644 A.2d at

1218). On this element, the Cancelleris relied upon the testimony of Dr, Williams, who concluded

that based on the "evidence of the injury, the known mechanism of injury of his disc herniation, the

physical evidence within the vehicle, and general occupant kinematics and the accident

reconstruction," "Cancelleri's [C7-T1] disc herniation was the result of him striking his head on the

windshield and that was the result of the failure of his air bag to deploy." N.T., 49-50:19-4,

08/15/14 (Smolskis).She also affirmed that Cancelle.ri.'s cervical injury was the product of both neck

£1.exion and a compressive load to the top of his head. Id. at 50-51:25-3. On this point, she explained

that bad an airbag deployed, the flexion in Cancelleri's neck "would have been greatly reduced in

that when the seat belt hands off to the air bag, the airbag slows down not only the face but the

upper torso." Id. at 50:9-12. "[Ijf an airbag had been there," she opined, Cancelleri "would not have

had a [compressive] load transmitted through the top of his head." Id. at 50:22-24.

       As aforementioned, Caruso. testified that the Sable's uppe.t radiator tie bar could hav~ been

"properly designed not to fracture and sever» such that the fiberglass structure could have been

imbedded with a thin sheet of aluminum to preserve the structure's integrity and prevent a "crack in

every single crash." N.T., 73-74:21-2; 90-91:20-9, 08/14/14 (McCool). Such a design, he concluded,
                                                     13
                                                                                    ---···---             ·-   ....
                                                                                         Circulated 12/07/2015 09:49 AM




 could have given "proper integrity to the single sensor to provide. the information            that the [FCS)

needed to fire M!. Cancellcri's airbags." N.T., 73-74:25-2, 08/14/14 (McCool). He also stated that if

"there was some very good reason to keep the system with [only] the fiberg~ass," Ford could have

"put two sensors up front, one on the left, one on the right directly in the crush zone."            Id. at 73-

74:15-8.s He explained .that with a two sensor system, "There would be no issue of whether the

structure cracks or breaks because the sensor is going to experience the entire crash anyway"

because "[i]t's right where the crash is occurring."       Id.   at 74:9-12.    Significantly, this point was

corroborated by Ford's own expert, Jeffrey Pearson, M·.E., who testified that had the dual sensor

system been integrated .in the Sable's design, "in [Caocelle.ci's] collision the sensor may be more

closely positioned for that accident" N.T., 16:12-15, 08/19/14 (Gliem). He also agreed that one of

the sensors of the dual system would be in the crush zone of Caacelleri's crash.        Id. at 16:9-17.

          Based on the foregoing testimony, it is quite evident that the Cancelletis satisfied the second

element of Gaudio.

          3. The Cancelleeis proved that the injuries were attributable to the defective design
             of the 2005 Mercury Sable.

          Third, the Cancellezis proved at trial by a preponderance of the :vidence "what injuries were

attributable to the defective design." Gaudio, 926 A.2d at 532 (citing KHpetz, 644 A.2d at 1218). To do

so, they relied on the medical opinions of Dr. Wolk and Dr. Willi.atns.

          Dr. Wolk initially concluded that Cancellezi's spinal cord injury and "incomplete tetraplegia"

"came as a result of [his) cervical disc herniation," and that the "cervical disc herniation was ... a

result of the motor vehicle accident" N.T., 56:9-10; 24:5-19, 08/18/14 (Gliem).

          Similarly, D~. Williams generally concluded that "the injuries       Mr. Cancelleri sustained were

caused by a strike to the head, ... [and) that he struck his head as a result of the failure of his air bag




s See mpra note 4.

                                                    14
                                                                                   Circulated 12/07/2015 09:49 AM




 to deploy." N.T., 17-18:22-1, 08/15/14 (Smolskis). She made further conclusions upon review of

Cancclleri's medical records and inspection of the Sable.

         After reviewing Cancclleri's medical records, Dr. Williams explained that on August 22,

2010, an   MJU revealed that Cancelleri had "a massive disc herniation at C7-T1, which is the last

cervical vertebra and the first thoracic vertebra .... "Id.at 15-16:20-14. This massive disc hcmiation,

she said, occurs "where part of the [disc] material is actually shoved out of the space behind the

vertebral bones into the spinal cord," which means "that it's been extruded back into the spinal

canal," thereby "nacrowing the spinal canal" and "pushjing] the spinal cord rearward .... "    Id. at 16:8-

11; 21:1-12. Dr. Williams       further explained that a herniation such as this "happens           under

hypcrfle.xion."   Id. at 23:13. Flexion, she said, is "the forward bending of one's bead," such as

"bringing your chin down to your chest"      Id. at 23:14-16. "When this happens suddenly" and "under

extreme conditions,"     she said, "we can actually have that nucleus material extruded rearward and

shoved out the back of the disc," which is consistent with byperfle.xion and Cancellezi's injuries.     Id.

at 23-24:17-7;    23:19-25.   She clarified that a C7-T1 disc herniation     was "consistent    with the

symptoms that     Mr. Cancclleri started complaining of the day before [his August 22, 2010 MRI),"

namely bis "problems     walking, problems feeling bis legs," and "problems urinating .... " Id. at 22:2-

15.

        Dr. Wilwuns also opined with regard to the "10-centimeter         scalp laceration to the top of

[Canccllcri's] head," which ran "front to back as opposed to side to side."    Id. at 42-43:20-18. When

inspecting the Sable, Dr. Williams found "quite a bit of damage to the windshield ... " N.T., 27:13-

14, 08/15/14 (Smolslris). Notably, she concluded that the "damage to the windshield ... just to the

left of the steering wheel," Canccllcri's "path travel" upon impact, and bis "general occupant

kinematics" arc all "consistent with the laceration to the top of his head" because the Sable's other

"interior structures,"   namely the steering wheel, roof, and A-pillu, "could not have caused the


                                                   15
                                                                                    Circulated 12/07/2015 09:49 AM




laceration .... " N.T., 47-49:13-11, 08/15/14 (Smolslcis). She therefore opined that "the windshield is

what caused the 10-centimeter laceration to [Cancelleci's] head." Id. at 48:1-4. DL Williams also

based this opinion "on the accident reconstruction of the collision and Mr. Cancelleri's own

testimony that he hit the windshield .... " Id. at 49:4-7. Specifically, Cancelled said that when the

collision occurred, he "went forward" and "hit [his] head against the windshield." D.T., 7:18-24;

26:12-14. At trial, EMS Provider Hoanzl testified consistently with Cancelleri's account, as she

described treating Cancelleri just after the accident for a "contusion" and "laceration on the top of

his head with uncontrolled bleeding." N.T., 33:8-16; 43:23-25, 08/13/14 (McCool). Dr. Williams

explained that this testimony combined with the laceration itself and "the. contusions to

[Cancelleri's] left shoulder and ... bilateral hips" indicating seatbelt use prove that Cancelleri's body

would "move forward and to the left ... to the point of contact" during the accident. N.T., 48:49:

23-3, 08/15/14 (Smols.kis). This, therefore, "would put him in the trajectory of the top of his head

being at that point of contact on the windshield." Id. at 49:4-11.

        Like Dr. Wolk, Dr. Williams also opined that "Cancelleri's disc herniation was the result of

him striking his head on the windshield and that was the result of the failure of his air bag to

deploy." Id. at 40:19-22. She also affirmed that this particular cervical injury was the product of both

hype.tflexion and compressive loading, which were initially discovered at Community Medical Center

in Scranton on August; 22, 2010. Id. at 51:25-3. Based on the foregoing testimony, it is evident that

the Cancelleris satisfied the third element of Gaudio.

        Overall, when viewing the record in a light most favorable to the Cancelleris, the verdict

winners, and rejecting all unfavorable testimony and inferences, we find that the Cancelleris readily

proved the elements necessary to establish their design defect claim under the crashworthiness

doctrine, and therefore, Ford's request for a ]NOV on this claim is denied.




                                                   16
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    B. The Ceacelleds proved the elements necessary to establish their malfunction claim
       by a preponderance of the evidence, and therefore, Ford's request for a]NOV on this
       claim is denied.

          Ford next contends that we erred by failing to enter judgment in its favor on the Cancdle.ris'

malfunction claim because (1) the "Sable was preserved and [available] [sic] to [the Caocelleris] and

their experts at all times," and (2) "~)n light of [the Caacellens'] very specific design defect theory,

this was simply not a situation in which the malfunction doctrine was applicable." Def.'s Post-Trial

Motion,   'uiJ 67, 71. Altematively, Ford contends that even if   the malfunction theory were applicable

to this case, the Cancelleris (1) "failed to establish the occurrence of a malfunction," (2) "failed to

establish malfunction bf eliminating reasonable secondary causes," and (3) "failed to establish the

remaining elements of their crashworthiness claim," Id. at ~175, 73. Again, we disagree.

        In   explaining the malfunction theory, our Supreme Court has written that,

             ~] plaintiff pursuing a case under the malfunction theory can assert a successful
             strict product liability claim based purely on circumstantial evidence in cases
             where the allegedly defective product has been destroyed or is otherwise
             unavailable. Although the plaintiff does not have to specify the defect in the
             product, the plaintiff nonetheless must present evidence &om which a jury can
             infer the elements of a strict liability action, beyond mere speculation.

             While reminiscent of the logic of a res ip1a loquit11r case, the malfunction theory
             requirements correlate with the three elements of a standard (Restatement
             (Second) Torts,§ 402A] claim. First, the "occurrence of a malfunction" is merely
             circumstantial evidence that the product had a defect, even though the defect
             cannot be identified. The second element in the proof of a malfunction theory
             case, which is evidence eliminating abnormal use or reasonable, secondary
             causes, also helps to establish the first element of a standard strict liability case,
             the existence of a defect By demonstrating the absence of other potential causes
             for the malfunction, the plaintiff allows the jury to infer the existence of defect
             &om the fact of a malfunction. For example, by presenting a case free of
             abnormal uses, such as using the product for an unintended purpose, the plaintiff
             can demonstrate that the product failed to perform. as a reasonable customer
             would expect; thus, that it malfunctioned. Similarly, by eliminating other
             reasonable secondary causes, a plaintiff allows the jury to infer that a defect in
             the product caused the malfunction, as opposed, for example, to operator error
             or failure to service the equipment Similarly, by presenting a case free of
             "abnormal uses" by the plaintiff and free of "other reasonable secondary
             causes," a plaintiff can establish through inference from circumstantial evidence
             the second and third elements of a 402A case, that the alleged defect caused the.
                                                    17
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            injury (as opposed to another cause) and that the defect existed when it left the
            manufacturer's control (as opposed to developing after the product left the
            manufacturet's control).

Bamisb v. Kin Bid. Co., 980 A.2d 535, 5}9; 541-42 (Pa. 2009) (citation omitted). To establish aprima

fade case of strict products liability under the malfunction theory, a plaintiff can adduce

circumstantial evidence including: (1) the malfunction of the _product; (2) expert testimony as to a

variety of possible causes; (3) the timing of the malfunction in relation to when the plaintiff first

obtained the product; (4) similar accidents involving the same product;. (5) elimination of other

possible causes of the accident; and (6) proof tending to establish that the accident does not occur

absent a manufacturing defect. Blumer v. Forrl Motor Co., 20 A.3d -1222, 1230 (Pa. Super. 2011)

(quoting Bamisb, 980 A.2d at 542-:43),appeal denied, 49 A.3d 141 (Pa. 2012). Ultimately, though, a

plaintiff proves a malfunction by establishing. (1) the occurrence of a malfunction; (2) evidence

eliminating abnormal use; and (3) evidence eliminating reasonable secondary causes. Blumer, 20 A.3d

at 1229-30 (quoting Bamisb, 980 A.2d at 541-42).

       1. The Cancelleris' preservation of and access to the 2005 Mercury Sable does not
          automatically render their malfunction claim inapplicable to this case.

        Ford first contends that the malfunction theory was inapplicable to this case because the

"Sable was preserved and [available] [sic] to [the Cancelleris] and their experts at all times," because

the Cancelleris' "airbag system expert, .in fact, inspected the [Sable] ~s part of his investigation," and

because "the jury viewed the (Sable] itself ... " Def.'s Post-Trial Motion,   1,   67-68 (citations omitted).

Ford relies on a string of cases purportedly in support of its argument The first is Bamisb, where our

Supreme Court wrote that "a plaintiff pursuing a case under the malfunction theory can assert a

successful strict product liability claim based purely on circumstantial evidence in cases where the

allegedly defective product has been destroyed or is otherwise unavailable." 980 A.2d at 408. Ford

misconstrues Barnisb as being restrictive on plaintiffs when, in fact, it is actually pe.rm.issive;for it is

clear upon a single review of the provision invoked by Ford that Bamisb si.tnplyallows plaintiffs to
                                                    18
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advance a strict product liability claim and attempt to prove that a product is defective despite not

having possession of or access to that product. Barnisb does not, as Ford implies, bootstrap plaintiffs

to the design defect theory and automatically render the malfunction theo.ry inapplicable simply

because those plaintiffs have possession of or access to the product                     .in question. It is not, as Ford

suggests, an ."either/ ot" proposition.

          Additionally, Ford relies on Ra1/ein v. Ford Motor Co., where ~w: Superior Court wrote, "In

most instances, the plaintiff       will produce direct evidence of the product's defective condition." 837

A.2d 518, 523 (Pa. Super. 2003) (quoting              Rogm v. ]ohn1011 & [obnson Prods. Ine., 565 A.2d 751, 7~4

(1989) (citations omitted)). "In some instances, however, the plaintiff may not be able to prove the

precise nature of the defect in which case reliance may be bad on the 'malfunction'                                theo.cy of

product liability." Id. at 523 (quoting        Roger.r, 565 A.2d at 754). Again, Ford misconstrues the law . In

Ra1kin, Plaintiff Lee Robin Raskin sued Ford based on an alleged defect in the seat of her 1989 Ford

Escort that "caused it to break loose" after she was rear-ended at a red light See Ra1kin v. Home, No.

3310, 2002     WL 34078126 (Pa. Com. PL Ph.ila. March 21, 2002). Significantly, Raskin advanced a

malfunction     claim despite the fact that her "father retained ownership of the [allegedly defective]

vehicle at the time of [the] action's 1992 commencement and for a significant period thereafter,

before selling it to a third party from whom Ford purchased the car in 1997." Rtukin, 837 A.2d at

521 n.2.6 From this, we can at least conclude that a plaintiff is not prohibited from advancing a

malfunction claim simply because that plaintiff has access to or possession of the allegedly defective




' We note that the tdal court in &rkin contemplated the issue of whether Raskin or Ford actually had access to the
allegedly defective scat, and ultimately found that both did. The trial court's record reflects that following the accident,
the scat "was repaired by [Raskin's) father who continued to drive the car after the accident., .. '.' However, after the first
trial in June of 1994, the scat "was stolen from outside the courtroom .... " During the second trial in September of
2000, Ford argued for sanctions against Raskin because the seat's spoliation had supposedly prejudiced Ford. In rejecting
this argumeat, the trial court reasoned that Ford "suffered no prejudice for several reasons: (1) the actual product was
not destroyed or missing until sometime after the lint trial and Ford was in possession of the vehicle prior to and at the
time of the first trial .... " Ra1kin, 2002 WL 34078126_

                                                             19
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    product in question. As such, we find that the Cancellezis' preservation of and access to the Sable

    docs not automatically render their m.a.lfunction claim inapplicable to this case.

          2. The Canccller:is' advancement of a design defect claim under the crashworthiness
              doctrine docs not automatically render their malfunction claim inapplicable to this
             ·case.

           Ford next contends that the malfunction          theory was inapplicable to this case because the

Canccllcris advanced a "very specific design defect theory." Def.'s Post-Trial Motion, 171 (citations

omitted). Ford relies on the same string of purportedly             supportive   cases to make its argument.

Relevant to this portion of Ford's contention is Dan1ale v. Cameron Coca-Cata Bottling Co., where our

Superior Court noted, "When a plaintiff seeks to prove that the entire line of products was designed

improperly, the plaintiff need not resort to the malfunction theory." 703 A.2d 489, 495 n.8 (Pa.

Super. 1997), appeal rkmed, 727 A.2d 131 (Pa. 1998). This reliance, however, is         again misplaced, as the

Dansai: footnote cited by Ford is not outright prohibitive. "Need not" does not equate to "cannot"

or "must not," and appellate case law since Dansak: makes this quite clear. Stated simply, a plaintiff is

not prohibited from advancing a malfunction claim in a crasbworthincss              case.   See Ra.rkin, 837 A.2d

518 (plaintiff averred that the· scat of her 1989 Ford Escort malfunctioned when it broke loose after

a rear-end collision, thereby prompting the trial court to instruct on both the malfunction and

crashworthiness      doctrines); Hanh   v. PetroU, 840 A.2d 404 (Pa. Cmwlth. 2003) (allowing plaintiff to

advance both a specific design defect claim under the crashwortbincss             doctrine and a malfunction

claim"'), appeal denied in parl, 864 A.2d 531 (Pa. 2004),    ajf din part, 887 A.2d 209 (Pa. 2005). Moreover,

the law docs not force a plaintiff to choose between advancing either a specific design defect claim

or a malfunction      claim. See Blumer, 20 A.3d 1222, 1229 ("At trial, Plaintiff proceeded on various

causes of action, including negligence, defective design and failure to warn. Notably, Plaintiff also

advanced a strict product liability claim pursuant to a product malfunction                 theory."); Harsh, 840

7The Commonwealth Court labeled the malfunction claim as a "manufactw:ing defect claim," but described the theory
using the malfunction elements articulated i.n DafU(ZJ:, 703 A.2d at 496.

                                                       20
                                                                                                   Circulated 12/07/2015 09:49 AM




    A.2d 404. Based on our appellate case law, we find that the Cancelleris' advancement of a design

    defect .claim under the crashworthiness doctrine does not automatically render their malfunction

    claim inapplicable to this case.

           3. The Cancelleris' simultaneous advancement of a design defect claim under the
              crashworthiness doctrine and a malfunction claim is not inconsistent with out
              appellate case law.

            We emphasize that the Cancelleris' advancement of a design defect claim under the

crasbworthiness        doctrine and a malfunction          claim is not inconsistent with         our Superior   Court's

dictum in      Raskin. There, the court wrote that the crasbworthiness and malfunction doctrines "arc

not mutually exclusive, nor are they altemative theories of recovery in a products liability case."

Raskin, 537 A.2d at 522-23. Considering this assertion in different terms, a plaintiff cannot attempt

to prove that a product was defectively designed to the exclusion of that product malfunctioning,

nor can that plaintiff attempt to prove ~t             a product malfunctioned to the exclusion of that product

being defectively designed. Moreover, a plaintiff cannot use the malfunction theory as an alternative,

or back-up, theory of liability in the event that his or her design defect claim fails. However, it

follows logically that a plaintiff can advance both a design defect claim and a malfunction claim so

long as they are not to each other's exclusion and so long as they are not pled in the alternative.                    Su

Blumer, 20 A.3d 1222; Harsb, 840 A.2d 404. In such a case, the jury is permitted to find that the

product in question was both defectively designed and that it malfunctioned, See Blumer, 20 A.3d

12228;    Harsh, 840 A.2d 404.9


IIn Blumer, the jury verdict slip.included specific questions that distinguished between the plaintiffs design defect and
malfunction claims. Speci6cally, jui:y members were asked.

       3. Do you find that the puking brake system on the subject vehicle malfunctioned on September 29, 2004?
       YES         NO_
                                                                                                                  r»
       4. Do you find that this malfunction was a substantial factcr in causing Joseph Blumet's death?
       YES_        NO_                                                                             .

       5. Do you find. that the pa.ekingbrake system was defectively designed?

                                                             21
                                                                                                       Circulated 12/07/2015 09:49 AM




            The most important inquiry in a strict products liability analysis under either a design defect

claim or a malfunction claim is whether the product in question was defective. In Harsh, Douglas

Harsh, his wife Connie, and their infant son Tyler were out driving in their new 1995 Chevrolet

Lumina when they were rear-ended by a tractor trailer. 840 A.2d at 413. The collision caused the

Lumina to burst into flames, and all three passengers died from smoke inhalation and severe bums.

Id. At trial, the Harsh Estate argued that the Lumioa's fuel system was defectively designed and
                    10
manufactured,            thereby prompting General Motors (hercinaftet «GM") to request that the                     jury be

asked separate special interrogatories related to its potential liability under each theory.                 Id. at 438-39.

The trial court rejected the interrogatories and asked the jury only whether there was simply "a

defect     in   the 1995 Chevrolet Lumina owned by Douglas and Connie Harsh].]" Id. at 439. In

affi.aning the          trial court's decision, our Commonwealth Court fittingly explained that "all that

Plaintiffs bad to prove was that the Lumina was sold in a defective condition and caused the harm,



       YES_         NO_

       6. Do you find that the design defect or defects in the puking brake syitcm   W2S   a substantial factor in ausiog
       Joseph Blumcrs death?
       YES_        NO_

Juty Vexdict Sheet, pp.1-2, B/J,m" 11. Pord M41Dr Co., G.D. No. 06-007766 (Pa. Com. PL AllegbcziyMar. 19, 2009), flllQi/ablt
athttps://dcr.allegbcziycouncy.us/Displaylmagc.asp?gPDFOH=vol6970000030l&CascID=GDo/o2D06%2D007766&
DocketType=VERDF&ScqNumbcx=71.              Juty members answered "YES" to all foux questions. Id.
9In Hanh, the iUIY verdict slip included general questions that did not distinguish between the Harshs' design defect and
manu&cturi.ngclaims. Specifically, jury members were asked,

       Question 4:
       Do you find that thcxe was a defect in the 1995 Chevrolet Lumina owned by Douglas and Connie Harsh?
       Yes __      No __

       Question 5:
       lfyou find that there was a defect i.o the 1995 Chevrolet .Lwniaa owned by Douglas and Connie Harsh, was
       that defect a substantial factor in causing the deaths of the HMsh family on April 21, 1995?
       Yes __      No __

Ht1T1h, 840 A.2d at 439. Jury mcmbcxs answered "Yes" to both quesnoos. Verdict, Harsb». Petrol/, No. CI-97--04352(Pa.
Com. Pl. Lancaster, June 20, 2001), (JJl(1i/able al http:/ /prothoootary.co.lancastcx.pa.w/civilcou.rt.public/(S(jvvcsg552
q2.23h4Sspihyljb))/Haodlcn/Docume11tHaodlex.asbxmd=l008260

10   Su supra note 7.

                                                            22
                                                                                    Circulated 12/07/2015 09:49 AM




and    it did not matter if the jury came to that conclusion based on a finding that it was a

tnanufac~g       defect or a design defect or both!'    Harsh, 840 A.2d at 440 (ci~g Phillip! v. A-Be.rt

Prod   a; 665 A2d    1167 (Pa. 1995)); see also Tincher,,2014 WL 6474923, at *1 C'[AJ plaintiff pursuing

a cause of action upon a theory of strict liability in tort must prove that the product is in a 'defective

condition."),

         We readily acknowledge that strict products liability claims involving vehicles often binge on

only one set of circumstances related to either a specific design defect or a malfunction.   See, e.g., Parr,

2014   WI. 7243152 (alleged design defect in the roof of a 2001 Ford Excursion such that the roof

crushed after an accident and consequential       roll down an embankment);       Gaudio, 976 A.2d 524

(alleged design defect in the airbag syste.tn of a 1996 Ford F-150 such that the driver's side airbag

should have deployed faster or not at all during a low speed collision); Harsh, 840 A.2d 404 (alleged

design and manufacturing defects in the fuel system of a 1995 ChevroletLumina such that a fuel-fed

fire would occur upon impact to the car from the rcu);     Raskin, 837 A.2d 518 (alleged malfunction in

the seat of a 1989 Ford Escort such that it broke loose upon impact to the car from the rear):

Hstcbinso» v. PmJke Tmck Leasing C«, 876 A.2d 978 (Pa. Super. 2005) (alleged des.ign defect in the

cruise control system of an eighteen-wheel tractor trailer such that it remained stuck in the "on"

position after application of the brakes and without a failsafe mechanism, and also that the truck's

cab was structurally deficient following a roll-over accident); Colville, 809 A.2d 916 (alleged design

and manufacturing defects in a Crown RR.3020-45 standup fork.lift such that       it was made without a

door enclosing the operator's compartment that could prevent an operator's foot from post-accident

injuries); K.Jpetz, 644 A.2d   1213 (alleged design and manufacturing         defects in a Deere 350

bulldozer/ crawler such that it was not equipped ~th. 11 rollover protection system that could_ have

prevented injuries during a rollover accident).




                                                   23
                                                                                         Circulated 12/07/2015 09:49 AM




       However, as we have written, we likewise recognize that advancing both a design defect ·

claim and a malfunction     claim based on only one set of circumstances            is not prohibited   in a

products liability action. See Blumer, 20 A.3d 1222; Harth, 840 A.2d 404. In Bl11mer, tow truck driver

Joseph Blumer had just finished lowering a vehicle off the back of bis Ford F-350 when the parking

brake broke. 20 A.3d at 1225. The vehicle, which was in neutral gear, rolled down the hill it bad

been parked on and over Blumer, who eventually died underneath it Id. "At trial [Blumer]

proceeded on various causes of action, including negligence, defective design aod failure to warn."

Id at 1229. On this point, out Su~erior Court noted,

           At the conclusion of trial, the· jury found that ... Ford was negligent,. that the
           parking brake system contained a design defect, that the parking brake system
           malfunctioned, and that ... Ford failed to warn of a defect in the parking brake
           system after it was sold. . . . The jury also found that each of these bases for
           liability was a subst.anti.al factor in causing Mr. Blumer's death.

Id. at 1229 n.2 (internal citations omitted). On appeal, Ford did not argue that "the malfunction

theory was unavailable to [Blumer], or that the evidence was insufficient to sustain a malfunction

theory of liability." Id Consequently, wrote the Superior Court, "the malfunction theory was

properly submitted to the jury, and the jury's verdict in favor of [Blumer] on the malfunction theory

was supported with sufficient evidence." Id.

        Here, the Cancelleris argued that two separat« self   of cirtUmstanm   necessitated the advancement

of both theories. First, they argued that there was direct evidence of a specific design defect with

respect to the Sable's single FCS and mounting structure. See.supra Part III(A). Additionally, but not

mutually exclusively or alternatively, they argued that there was circumstantial evidence of a

malfunction with respect to the Sable's. RCM· such that it fired the driver's side belt buckle

pretensio.oer and should have deployed the driver's side .airbag, but instead deployed the passenger's

side airbag. See infra Part III(B)(4). Because the Cancelleris' simultaneous advancement of both




                                                   24
                                                                                      Circulated 12/07/2015 09:49 AM




theories docs not run afoul of our appellate case law, we find that Ford is not entitled to a JNOV on

these grounds.

       4. The Cancelleris proved the occurrence of a malfunction.

        Altemative to the arguments addressed in supra Part ill(B)(1)-(3), Ford also contends that

even if the malfunction theory were applicable to this case, the Cancelleris "failed to establish the

occurrence of a malfunction" because "[t]he mere fact that the passenger airbag deployed in the

accident docs not mean that the system malfunctioned .... " De£'s Post-Trial Motion, ml 75-76. On

this point, Ford properly cites Bamisb, wbctc our Supreme Court wrote that "[t]he courts have noted

that while the plaintiff need not demonstrate the actual product defect, the plaintiff 'cannot depend

upon conjecture or guesswork."' 980 A.2d at 542 (quoting Dansak, 703 A.2d at 496). However, the

trial record, when viewed in a light most favorable to the Caacelleris, shows that the Cancelleris

produced more than enough circumstantial evidence to prove the occurrence of a malfunction.

        Cancelleris' expert, Caruso, first explained that in angled crashes "that [arc] offset and [don't)

actually hit the sensor itself," the crash pulse transmission needs to get to the FCS mounting

structure and "continue to a:aosmit [the crash] information to the sensor until it makes its decision,"

i.e., "deploy" or "no deploy." N.T., 34-35:25-12.;' 35-36:25-1, 08/14/14 (McCool). The sensor

information is then transmitted to "the primary airbag controller" known as the Restraint Control
                                                                                 .              .
Module, or "RCM," which "physically turns on the airbags when the appropriate crash sensing

information has been received ... and get[s] them to deploy." Id at 55-56:20-6. The RCM, said

Caruso, is the Sable's "black box" that "monitors the state of health of the vehicle at all times and

lets you know if something is wrong." Id. at 55:20-25. Unlike' the FCS and fiberglass cross member

located on the Sable's exterior, the RCM is located on the Sable's interior, notably "mounted on the

floor under the carpet, ... in between the two seats more or less." Id at 57:12-16. Caruso further

stated that the RCM connects to the FCS, to the Occupant Classification Sensor (hereinafter


                                                   25
                                                                                                  Circulated 12/07/2015 09:49 AM




                "OCS"), to all the airbags, to the dashboard to be able to tum on and off the warning lamp if

               something is wrong, and to the passenger airbag deactivation lamp to determine whether the

               passenger airbag is going to be on or off if a collision should occur. N.T., 57:17-25, 08/14/14

               (tv.fc~ool).

                       With respect to the RCM's malfunction, Caruso testified that "there were no fault codes"

               detected upon inspection of the RCM after Cancellezi's accident Id. at 63-64:21-1. 'This is significant,

               he opined, because. "there was nothing wrong with the airbag module. There was nothing wrong

               with the [OCS]. There was nothing wrong-as far as the [RCM] knew, this au:bag system was ready

               to go if a crash had occurred." Id at 64:2-6. The RCM also knew that Cancelled "was buckled at that

               time this event occurred" and also that the "passenger was unbuckled." Id at 63:10-13. The

               passenger's side OCS, which "measurc[es] the weight of any occupant," also recognized ~at the

               passenger seat was empty, which is important because the data from the OCS is transmitted directly

               to the RCM. Id. at 63:16-20; 57:12-19. Caruso explained that "the whole purpose of occupant

               detection or occupant classification" is to "[n]cver ... deploy an airbag if there is a risk of there

               being a child there," and therefore, "[t]here would be no reason to (deploy an airbag if there is an

               empty seat]." Id at 66:5-9. Doing so, he said, amounts to "wasting the consumer's money because

               they have to go back and get that repaired" Id at 66:10-11. Caruso therefore opined that because

               "the passenger side was unbuckled and the seat was empty, this deploying of the passenger bag

               would be a malfunction." Id at 66:2-4.

                       The Cancellezis'malfunction claim was bolstered by Phillips, who testified that "the driver's

               side seat belt buckle pretensioner fued in this crash," .meaning that the RCM "saw an impact and

               commanded that pretcnsicaer to detonate." N.T., 28:17-21, 08/14/14 (Nardozzi). Interestingly,

               Phillips said that the passenger's side pretensioner did not fire. Id. at 28-29:22~9. On this point,

               Caruso testified that in "brick wall impacts," "approximately 12 miles per hour [will] deploy the


                                                                 26


--   --..--~       -
                                                                                          Circulated 12/07/2015 09:49 AM




 seatbelt pretensioner," N.T., 84:4-10, 08/14/14 (McCool). He further testified that a Stage 1 airbag

 deploys at "roughly 18 miles an hour" for a "belted occupant," and that a Stage 2 airbag deploys at

 "around 22 miles per hour" for an "unbelted occupant." N.T., 84-85:18-4, 08/14/14                   (McCool).

 Giving all reasonable inferences to these experts' testimony, it is clear that the RCM felt a crash that

 meets the threshold for deploying Ca.ocelleri's Stage 1 airbag, and even fired           his drivers side belt

buckle pretcnsioner to do so. However, the RCM instead dplf!Jed the pamnger's tide airbag witho11/ even

jin"ng the pamnger'! tide belt b11ckle p,rtensioner. From this, we find that the Cancelleris' malfunction claim

was rooted fumly in the fertileground between mere "conjecture               or guesswork" and the direct

evidence implicating a specific design defect

         5. The Cancclleris established evidence eliminating abnormal use.

        Ford does not challenge the evidence eliminating abnormal use presented by the Cancclle.cis.

To establish this clement, the Canccllc.cis simply relied on Ca.occllc.ci's own testimony. Specifically,

Cancelle.ci's testimony that he was wearing        his seatbelt immediately prior to the accident was

undisputed, and no other testimony was presented that tended to indicate an abnormal use. D.T., 7-

8:25-2. He further testified that he never had any service problems with          his Sable in the five yea.rs

that he owned it. Id at 37:7-24. As such, it is clear that the Caocellc.cis satisfied the second element

of their malfunction claim eliminating abnormal use of the Sable.

       6. The Cancelleris established evidence eliminating reasonable secondary causes.

        Next, Ford claims that the Cancellc.cis "failed to eliminate reasonable secondary causes for

the alleged airbag system malfunction .... " Dcf.'s Post-Trial Motion,       ,r 78.   Ford's main "reasonable

secondary cause" for the RCM's deployment            of the passenger's side airbag was articulated by

Jennifer Yack:, P.E., an   expert in accident reconstruction and investigation, vehicle dynamics, and

crash test analysis, and Pearson. In particular, Yack: testified that the Sable travelled "about 160 feet

from the point of impact with the Mustang to impact with the trees" within "five-and-a-half to six


                                                     27
                                                                                      Circulated 12/07/2015 09:49 AM




seconds," and that the Sable entered the trees at "approximately           12 to 14 miles an how:" over

"about 7 feet ... .'' N.T., 49:3-9; 49:15-16; 19-20:25-2, 08/19/14 (Gliem). Ultimately, Yaek opined

based on these factors that the Sable's· interaction with the trees was sufficient to reach the air bag

deployment threshold for the passenger's side. N.T., 49-50:24-4, 08/19/14 (Gliem). In conjunction

with Yack's opinion, Pearson testified that, "Subsequent to [the Mustang event]. the system went

into an indeterminate   state, and as a result of being in the indeterminate     state, it ... default[ed) to

deploy [the passenger's side airbag]."   Id. at 31:3-5. "[I]n other words," he said, "if there's a power

disruption to that particular circuit, then it will, like any other computer, go into a re-boot phase, and

during the five to six seconds that it takes to reinitiate itself, it reports the state indeterminate to the

RCM." Id. at32:4-9.

        Although Ford, via Yack and Pearson, suggested a secondary cause for the RCM's purported

malfunction, the Cancelleris presented more than enough evidence to meet their burden of negating

Ford's theory. See Roselli v. Gen. Blee. Co., 599 A.2d 685, 688 (Pa. Super. 1991) (Defendants' "burden

is only to identify other possible non-defect oriented explanations" while "the plaintiffs have the

burden of negating reasonable secondary causes for the accident which are             f.airly raised by the

evidence." (citation omitted)), appealgmnted, 607 A.2d 255 (Pa. 1992).

        First, Cancelleri himself testified that the passenger's side airbag "went off right away" after

the collision and not when the Sable went into the trees. D.T., 7:21-24; 30-32:16-4. EMS Provider

Hoaozl testified that Cancelleri was alert and conscious during treatment, and that be received a

perfect score on the Glasgow Coma Scale, which she stated is "a scale that we use to determine how

alert and how with it [patients] are." N.T., 39-20:19-17, 08/13/14 (McCoo~.

        Moreover, unlike Yaek, Trooper Boetcher testified that "[b]y the time (the Sable] reached the

tree, it couldn't have been going more than five miles an hour." Id. at 25:17-18. He further testified

that the Sable "came to rest" against one of the trees, that "it was too difficult to tell whether any


                                                    28
                                                                                                           Circulated 12/07/2015 09:49 AM




     additional damage occurred from the tree because [of] the extensive damage from the impact with

     the Mustang," and that "the tree had sustained very little damage, if any," from the Sable. N.T., 15-

     16:20-22, 08/13/14 (McCool).

              Phillips corroborated Boercher's testimony when he opined that the Sable's contact speed

    with the tree was "about five miles an hour." N.T., 48:10-11, 08/14/14 (Nardozzi). He further

     opined that the Sable "never made it to the trunks and ... just brushed up against the branches," and

     that there was "really nothing on the right side of the car" to indicate damage from the trees. Id. at

     48:16-20; 44:22.11 Additionally, Phillips challenged Yack's opinion and testified that "12 to 14 miles

    per hour over 7 feet would not meet the deployment criteria timing based on an accident

    reconstruction standpoint." N.T., 43:11-14, 08/14/14 (Nardozzi). Using a mathematical braking

    coefficient, Phillips calculated and explained that the Sable would be ut:ili.z.ing minimal force "over 7

    feet if you are doing 12 to 14 miles an hour." Id. at 46-47:7-6. He therefore concluded that under

    such circumstances, "you arc not impacting the branches," but rather, "[y]ou arc coming in contact

    with [them]." Id. at 47:6-7. He further stated that if the Sable had actually come into cootactwith the

    tree trunk, "You would sec damage], a)nd I would expect to see the branches snapped off to the

    trunks," which he did not Id. at 47:18-23.

              Caruso also challenged Yack's conclusions, opining that "~Jo her own data, ... 14 miles per

    hour over 7 feet equates to an equivalent barrier speed" of a brick wall impact at eight miles per

    hour, the severity of which is a "1 and a half mile per bout .impact'' N.T., 82:8-20, 08/14/14

    (McCool). A threshold of "8 miles per hour and below," said Caruso, "is what Ford calls the no fire

    threshold," meaning that "[a)ny brick wall impact at 8 miles per hour or less [docs) not fire the

    airbags." Id. at 82:13-15; 83-84:22-3. He therefore concluded that the Sable's "passenger airbag

    11Specifically, Phillips noted that "(t)he headlight for the right front it is [sic] plastic. It is intact, The hood does not have
    any imp-act muks to it. The bumper beam does not have anything that would represent an imp-act from the tree." N.T.,
    44:18-21, 08/14/14 (Nardozzi).


                                                                   29


-   -~---
                                                                                   Circulated 12/07/2015 09:49 AM




 deployment cannot be explained." N.T., 82:21-22, 08/14/14 (McCool). Furthermore,           Caruso stated

that even if Yaek's opinion that the Sable impacted the tree at 12 to 14 miles per hour were correct,

"it still results in a nondeployment crash and does not explain the deployment of the passenger

airbag." Id. at 87:10-17.

        Notably, Ford's focus with regard to reasonable secondary causes of the RCM's purported

malfunction addresses only those circumstances related to the Sable's passenger's side airbag

deployment While Ford attempts to frame this point as an airbag issue wholly unrelated to

Cancelleri's injuries, the evidence clearly shows that it is not. As we have noted, it is evident that the

RCM felt a crash that meets the threshold for deploying Cancelleri's Stage 1 airbag, and the RCM

even fired the drivels side belt buckle pretensioner to do so. However, the RCM instead deployed

the passenger's side airbag without even firing the passenger's side belt buckle pretensioner. Based

on all relevant testimony, we find that while Ford may have suggested a secondary cause for the

passenger's side airbag's deployment, it did not adequately establish how that deployment could

reasonably occur in relation to the fired driver's side belt buckle pretensioner, the undeployed

driver's side airbag, and the unfired passenger's side belt buckle pretensioner. Thus, Ford did not

establish that its suggested secondary cause was in fact a reasonable one. Moreover, the Cancelleris

met their burden of negating Ford's secondary cause, thereby satisfying the third element of their

malfunction claim.

       7. The Cancelleris were not required to prove the crashworthiness elements of a
          design defect claim as part of their malfunction claim.

       Ford also argues that the malfunction theory "does not relieve the burden of establishing a

defect," and that because "defect is but one element of a crashworthiness claim," the Cancelleris

were still required to prove the remaining elements of the crashworthiness doctrine as part of their

malfunction claim. Def.'s Post-Trial Motion, 1 74 (quoting Dansak, 703 A.2d at 496). In advancing

its argument, Ford invokes Raskin, where our Superior Court wrote that "[a] defect is merely one
                                                   30
                                                                                          Circulated 12/07/2015 09:49 AM




element of the crashworthiness          doctrine." 837 A.2d 523. Though the cited quote is accurate, Ford

elevates R.tukin    to   an authority that prohibits the advancement of both a design defect claim under

the crashworthiness doctrine and a malfunction claim in the same case. As we previously explained,

it is not See mpra Part III(B)(3)        C'In such a case,   the jury is permitted to find that the product in

question was both defectively designed and that it malfunctioned."); Bl11mtr, 20 A.3d 1222; Harsh, 840

A.2d 404.

         As we also previously explained, Raskin and the matter sub j11dice arc distinct from one

another. lo Rarkin, Plaintiff Lee Robin Raskin sued Ford based on only one set of circumstances,

namely that the scat of her 1989 Ford Escort malfunctioned when it broke loose after a rear-end

collision. See Raskin, 2002 WL 34078126.Although she advanced a textbook "second collision" case,

Raskin could not present direct evidence of a specific design defect She therefore used the

malfunction theory as "an evidcnriary tool" to ''prove the existence of a defect," i.e., that her Escort

was not c.rashworthy. Rarkjn, 837 A.2d at 523. Here, the Cancelleris established that two separate sets of

af'C1IIJ11ta11ces necessitated   the advancement of both theories. First, Plaintiffs argued that there was

direct evidence of a specific design defect with respect to the Sable's single FCS and mounting

structure. See supra Part Ill(A). Additionally, but not mutually exclusively or altemativcly, Plaintiffs

:ugued that there was circumstantial evidence of a malfunction with respect to the Sable's RCM such

that it fired the drivers side belt buckle pretensioner and should have deployed the driver's side

airbag, but instead deployed the passengers side airbag. See mpro Part III(B)(4). Again, because the

simultaneous advancement of these theories docs not run afoul of our appellate case law, we find

that Ford is not entitled to a ]NOV on these grounds.




                                                       31
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      C. The Cancelleris proved the elements necessary to establish their design defect claim
         under the crashworthiness doctrine and their malfunction claim by a preponderance
         of the evidence, and therefore, Ford is not entitled to ]NOV on Rosetta Cancelleri's
         loss of consortium claim.

         Ford further contends that, "To the extent there was insufficient evidence to support ...

 Cancellezi's design defect and product malfunction claims, [Rosetta Cancelleri's] loss of consortium

 claim fails as a matter of law." Def.'s Post-Trial Motion,      t   82 (citations omitted). A loss of

 consortium is "a loss of services, society, and conjugal affection of one's spouse." Dorr Const. Co. v.

 W.CAB. (Walker), 715 A.2d 1075, 1080 (Pa. 1998) (citations omitted). "While it stems from the

 spouse's bodily injury, it is nevertheless a separate and distinct claim," Id. Since we have already

 found that the Cancclle.tisproved the elements necessary to est.ablishtheir design defect claim under

the crashworthiness doctrine and their malfunction claim, we find that Ford's argument on Rosetti

Cancelleri's loss of consortium claim fails.

IV. Standard of Review for a New Trial

        Alternative to its argument that it is entitled to a JNOV, Ford claims that it is entitled to a

new trial because we "erred in failing    to   grant Ford's Motion for Compulsory Nonsuit" on the

Caocelleris' design defect, malfunction, and loss of consortium claims, because we "erred in failing

to grant Ford's Motion for a Directed Verdict" on those claims, because our "jury instructions were

erroneous and prejudicial," because our '<verdictform was erroneous and prejudicial," because we

"erred in precluding Ford's experts' sw:rogate study to rebut [the Cancellezis'] causation theory,"

because we "erred in refusing to apply the Restatement (Third) of Torts: Products Liability and

admit evidence of industry standards," and because we "erred in excluding evidence concerning tests

by NHTSA and the lIHS during Mr. Caruso's cross-examination." See Def.'s Post-Trial Motion, Part

II.

        Our appellate courts have articulated that ''(t]here is a two-step process that a trial court

must follow when responding to a request for a new trial .... " FerguJon v. Morton, 84 A.3d 715, 719-
                                                   32


                             -- ---        -    - -
                                                                                          Circulated 12/07/2015 09:49 AM




 720 (Pa. Super. 2013) (quoting Hannan u: Borah,       156 A.2d 1116, 1222 (Pa. 2000) (citations omitted)),

 apptal denied, 97 A.3d 745 (Pa. 2014).

             First, the trial court must decide whether one or more mistakes occw:red at trial,
             Second, if the trial court concludes that a mistake (or mistakes) occurred, it must
             determine whether the mistake was a sufficient basis for granting a new trial, The
             harmless error doctrine underlies every decision to grant or deny a new trial, A
             new trial is not warranted merely because some icregula.city occurred during the
             trial or another trial judge would have ruled differently; the moving party must
             demonstrate to the trial court that he or she has suffered prejudice from the
             mistake.

Fefl,IIJon, 84 A.3d at 720 (quoting Harman, 756 A2d at 1222) (citations omitted) .

    .A. We properly denied Ford's Motions for a Compulsory Nonsuit and a Directed
        Verdict.

        At the close of the Cancelleris' case on ~ugust 18, 2014, Ford owly requested a compulsory

nonsuit in its favor on all of the Caacellezis' claims based on the supposedly .inadequate production

of evidence. N.T., 9-13:11-12, 08/18/14 (Nardozzi). Our rules provide that "the court, on oral

motion of the defendant, may enter a nonsuit on any and all causes of action if, at the close of the

plaintiff's case on liability, the plaintiff has failed to establish a .eight to relief." Pa.R.C.P. 230.1(a)(1).

In dete.rmin.i.ngwhether the plaintiff bas established a right to relief,

            [t]he plaintiff roust be allowed the benefit of all favorable evidence and
            reasonable inferences arising therefrom, and a.ny conflicts in the evidence roust
            be resolved in favor of the plaintiff. Further, [~t has been long settled that a
            compulsory nonsuit can only be granted in cases where it is clear that a cause of
            action has not been established. Howeverj.] where it is clear a cause of action bas
            not been established, a compulsory nonsuit is proper ..

Staiger v. Holohan, 100 A.3d 622, 624 (Pa. Super. 2014) (quoting Braun v. Target Co,p., 983 A.2d 752,

754 (Pa. Super. 2009), appeal denied, 987 A.2d 158 (Pa. 2009)). Based oo the evidence put forth by the

Cancellcris (described at length   in r,pm Part III), we denied Ford's request for a compulsory nonsuit

and find no error in having done so. N.T., 9-19:11-16, 08/18/14 (Nardozzi).

        At the close of all evidence on August 20, 2014, Ford made the same request for judgment

in its favor in the form of a request for a directed verdict N.T., 71:5-13, 08/20/14 (Gliem). Our
                                                      33
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rules similarly provide that, "At the close of all evidence, the trial judge may direct a verdict upon the

oral or written motion of any party." Pa.R.C.P. 226(b). The "staodard[s] of review when considering

motions for a directed verdict and judgment notwithstanding the verdict are identical." Reott, 7 A.3d

at 835 (quoting Campisi v. AC1!1t Mark,ets, Inc, 915 A.2d 117, 119 (Pa. Super. 2006) (citation omitted)).

Consequently, we again denied Ford's request based on the evidence described in supra Part ill, and

find no error in having done so. N.T., 4:9-18, 08/21/14 (Nardozzi).

    B. We properly instructed the jury with regard to the malfunction doctrine.

        Ford's primary argument for a new trial is. that we erred when instructing the jury on the

malfunction doctrine. Specifically, Ford first contends that "the malfunction doctrine was not

applicable to this case" because the Cancelleris had possession of the allegedly defective Sable, "and

therefore, the rationale underlying the malfunction theory is wholly inapplicable." Def.'s Post-Trial

Motion, il! 100-01. We previously described the malfunction doctrine in supra Part III(B).

        Despite Ford's contention, there are three important precepts of Pennsylvania law consistent

with our decision that we have also previously articulated See supra Part III(B)(1)-(3). First, a plaintiff

is not prohibited from advancing a malfunction claim simply because that plaintiff has access to or

possession of the allegedly defective product in question. See Raskin, 837 A.2d at 521 n.2 (plaintiff

advanced a malfunction claim despite the fact that her "father retained ownership of the [allegedly

defective] vehicle at the time of [the] action's 1992 commencement and for a significant period

thereafter .... "). Second, a plaintiff is not prohibited from advancing a malfunction claim in a

crashworthiness case. See &skin, 837 A.2d 518 (plaintiff averred that the seat of her 1989 Ford

Escort malfunctioned when it broke loose after a rear-end collision, thereby prompting the trial

court to instruct on both the malfunction and crashworthi:oess doctrines); Harsh, 840 A.2d 4-04

(allowing the plaintiff to advance both a specific design defect claim under the crashworthiness




                                                   34
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 doct:tine and a malfunction           claim"). Third, the law does not force a plaintiff to choose between

 advancing either a specific design defect claim or a malfunction          claim. See Blumer, 20 A.3d at 1229

 ("At ~          Plaintiff proceeded on various causes of action, including negligence, defective design and

 failure to wam. Notably, Plaintiff also advanced a strict product liability claim. pursuant to a product

 malfunction theory."); Harsh, 840 A.2d 404.

             Moreover, these concepts        do not run afoul of our Superior Court's assertion that the

 crasbworthiness           and malfunction doctrines "arc not mutually exclusive, nor arc they altemativc

 theories of recovery in a products liability case." RJ1Jkin, 537 A.2d at 522-23. Stated simply, a plaintiff

 cao advance both a design defect claim and a malfunction claim so long as they arc not to each

other's exclusion and so long as they are not plcd in the alternative. Set Blumer, 20 A.3d 1222; Harsh,

840 A.2d 404. In such a case, the jury is permitted to find that the product in question was both

defectively designed and that it malfunctioned See Bh,mtr, 20 A.3d 122213; Harsh, 840 A.2d 404.14

After      all, the most important inquiry in a strict products liability analysis under either a design defect

claim or a malfunction claim is whether the product in question was defective. Critically, "all that

Plaintiffs ha[vc] to prove [is] that the [vehicle] was sold in a defective condition and caused the

harm, and it (docs) not matter if the          jury came to that conclusion based on a finding that it was a

manufacturing            defect or a design defect or both." Harth, 840 A.2d at   440u (citing Phillips v. A-Best

Prod. Co., 665 A.2d 1167 (Pa. 1995)); see a/Jo Tincher, 2014 WL 6474923, at *1 ("[A] plaintiff pursuing

a cause of action upon a theory of strict liability in tort must prove that the product is in a 'defective

condition?") With these concepts in mind, we tum to our instructions.




12 Ste   ntpra note 7.

u Ju rlf/)ra note 8.

u Stt mpra note     9.

is Je, supra note 7.

                                                         35
                                                                                   Circulated 12/07/2015 09:49 AM




        When .instructing the   jury, our objective "is to explain to the jury how it should approach its

task and the factors it should consider in reaching its verdict," Tincher, 2014 WL 6474923, at *16

(quoting Commonwealth v. Chamber!, 980 A.2d 25, 49-50 (Pa. 2009)). In determining whether we

committed error in charging the     jury and thereby necessitating a new trial, our scope of review is

limited to determining whether we "committed a clear abuse of discretion o.r error of law controlling

the outcome of the case." Pa11are//o u: Grumbine, 87 A.3d 285, 296 (Pa. 2014) (quoting          Q11i11f?y v.

Plum1uadville Fami!J Practice, Inc., 907 A.2d 1061, 1069 (Pa. 2006)). In reviewing our charge to the jury,

"we must look to the charge in its entirety." Id (quoting Quinby, 907 A.2d at 1070). As our Supreme

Court has written,

            Error .in a charge is sufficient ground for a new trial if the charge as a whole is
            inadequate or not clear or has a tendency to mislead or confuse rather than
            clarify a material issue. Error will be found where the jury was probably (misled]
            by what the trial judge charged or where there was an omission in the charge. A
            charge will be found adequate unless the issues are not made clear to the jury or
            the jury was palpably misled by what the trial judge said or unless there is an
            omission in the charge which amounts to a fundamental error,

Id. (quotingQ11inby, 907 A.2d at 1069-70).

        In Raskin, Plaintiff Lee Robin Raskin sued Ford based on only one set of circumstances,

namely_ that the seat of her 1989 Ford Escort malfunctioned when it broke loose after a rear-end

collision. See Ras.kjn, 2002 WL 34078126. At trial, Raskin could not present direct evidence of a

specific design defect, and therefore, she used the malfunction theory as "an evidentiary tool" to

"prove the existence of a defect," i.e., that her Escort was not crashworthy.   Raskin, 837 A.2d at 523.

Because Raskin's claim was a textbook "second collision" case, the trial court instructed on the

crasbworthiness d.octrine in addition to the malfunction doctrine.   Id. ..Thereafter, the jw:y returned a

verdict in favor of Ford, notably finding that there was "no defect in the seat and/or restraint

system." Id at 521. On.appeal, Raskin ar~ed that "the t.rial court improperly instructed the jury on




                                                   36
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the doctrine of crashworthiness       instead of limiting its instructions   to the doctrine of malfunction."

Rt:ukin, 837 A.2d at 522. Quoting our Supreme Court, our Superior Court wrote,

            The doctrine of .malfu.oction is an evideotiary tool whereby a plaintiff may prove
            the existence of a defect It has been explained as follows:
            In most instances the plaintiff will produce direct evidence of the product's
            defective condition. In some instances, however, the plaintiff may not be able to
            prove the precise nature of the defect in which case reliance may be had on the
            "malfunction" theory of product liability. This theory encompasses nothing more
            than circumstantial evidence 'of product malfunction. It permits a plaintiff to
            prove a defect in a product with evidence of the occurrence of a malfunction and
            with evidence eliminating abnormal use or reasonable, secondary causes for the
            malfunction. It thereby relieves the plaintiff from demonstrating precisely the
            defect yet it permits the trier-of-fact to infer one existed from evidence of the
            malfunction, of the absence of abnormal use 'and of the absence of reasonable,
            secondary causes.

Raskin, 837 A.2d at 523 (quoting Rogers v. [abnson & Johnson Products, Inc, 565 A.2d 751, 754 (Pa.

1989) (citations omitted)). Significantly, although our Superior Court dearly distinguished between

the malfunction and crashworthiness doctrines, its af~tion              of the trial court's ruling in 'Raskin

unmistakably      shows   that a trial court may instruct the jury on both the malfunction                and

crashwortbiness    theories.   In affirming the trial court's instructions, our Superior Court wrote,

            The trial court instructed the jury according to the malfunction doctrine;

                  Now, I would like to talk to you about proving a defect by proving a
                  malfunction. A plaintiff in a strict products liability case, which is another
                  way of saying a products liability case, may prove her case merely by
                  showing the occurrence of a malfunction of a product dw:iog normal use.
                  The plaintiff does no [sic) have to prove the existence of a specific defect
                  in the product.
                  The plaintiff has to prove three facts. She must prove that the product
                  malfunctioned; that it was given only normal or anticipated usage before
                  the injuries occurred, and that there is no reasonable secondary cause that
                  was responsible for causing the enhanced injuries.

           Accordingly,        Appellant   received the maximum        benefit   of the malfunction
           doctrine.

Id. (quoting Trial Court Notes of Testimony, 77, Sept. 25, 2000).




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                  Furthermore,    as we have noted, advancing both a design defect claim and a malfunction

        claim based on only on.e set of circumstances, let alone two, is not prohibited in a products liability
    I
J       action. See Blumer, 20 A.3d at 1229 ("At trial, Plaintiff proceeded          on various causes of action,
I       including negligence, defective design and failure to wam. Notably, Plaintiff also advanced a strict
I       product liability claim pursuant to a product malfunction theory.");     Harsh, 840 A.2d 404.

                 As such, for the jury's benefit, we instructed on the malfunction doctrine using nearly the

        exact same legal standards set forth by our SuperiQr Court in combination with neatly the exact

        same instructions provided by the       trial court in Rarkin, 537 A.2d at 523 (quoting Trial Court Notes

        of Testimony, 77, Sept. 25, 2000). Specifically, we instructed that,

                       Under Pennsylvania law, the crashworthiness theory and the malfunction theory
                       are not mutually exclusive, nor are they alternative theories of recovery in a
                       products liability case such as this one. In most instances, a plaintiff will produce
                       direct evidence of the product's defective condition. In some instances, however,
                       the plaintiff may not be able to prove the precise nature of the defect, in which
                       case reliance may be had on the "malfunction" theory of product liability. This
                       theory encompasses nothing more than circumstantial evidence of· product
                       malfunction. It permits a plaintiff to ptove a defect in a product wi.th evidence of
                       the occurrence of a malfunction and with evidence eliminating abnormal use or
                       reasonable, secondary causes for the malfunction. It thereby relieves the plaintiff
                       from demonstrating precisely the defect, yet it permits you, the triers-of-fact, to
                       infer that a defect existed from evidence of' the malfunction, the absence of
                       abnormal use, and of the absence of reasonable, secondary causes.

                       As such, the Cancelleris may prove their case under a malfunction theory merely
                       by showing the occurrence of a malfunction of the airbag restraint system of the
                       2005 Mercury Sable during normal or anticipated use. They need not prove the
                       existence of a specific defect in the product Rather, the Cancelleris must prove
                       three facts: that the system malfunctioned; that it was given only normal or
                       anticipated use before Mt. Cancelleri's injuries occurred; and that there is no
                       reasonable secondary cause that was responsible for causing the injuries resulting
                       from the malfunction.

        N.T., 95-97:20-7, 08/21/14 (Nardozzi). Overall, we find that the recitation of out Superior Court's

        articulation    of the relationship     between    the malfunction     and   crashworthiness    theories   in

        combination with the trial court's malfunction instruction in      Raskin provided the Cancelleris with a



                                                             38


                              --- -    -- -
                                                                                                     Circulated 12/07/2015 09:49 AM




correct and relevant summation of their legal claims while also providing Ford the full benefit of the

distinctions between the two doctrines.

          Additionally, Ford relies on a question submitted by the jury duriog its deliberations to argue

that the jury was confused. Specifically, approximately one bout into deliberations, the jury wrote,

              As the Judge described the questions asked for the verdict he mentioned a choice
              of malfunction but yet it is not on the verdict's questionnaire. On the verdict
              questionnaire there are only options for a defective," There is a little confusion
              over this.

N.T., 126:14-20; 130:7-13, 08/21/14 (Nardozzi). Using th.is question, Ford speculates,

              113. The jury was clearly confused on the material issue of design defect and was
              permitted to .improperly rely on the malfunction theory to find design defect
              where the evidence otherwise could oot support it. The jury was further
              confused by the Court's instruction on the "separate theory" of malfunction in
              light of the absence of malfunction from the verdict form,

Def.ts Post-Trial Motion, ~ 113. Here, Ford's contention that the jury was overly and materially

confused with respect to the questions it was asked to answer is purely conjectural.                       Jury members
were instructed, in accordance with Raskin, on the differences between the crasbworthiness                              aod

malfunction      theories before this question arose and, approximately                    ninety minutes into their.

deliberations, they were instructed        again on the same differences. The jury's language is indicative of

their fum grasp of the issues before it, as they label malfunction a "choice" among other "options"

regarding a defect This is entirely consistent with the Cancellcris' advancement of claims under

design defect, malfunction, and duty to warn, and it is also entirely consistent with out instruction

that the Cancelleris were attempting to recover under three subsets of liability. It is entirely possible

and even plausible that the jury's question arose based on our gtanting the Cancellcris' request to

remove &om the verdict sheet those questions related to their malfunction claim while also granting

the.it request to instruct the jury on their malfunction claim. Irrespective of this, "[w]e have a history

16This js the exact language the jury used when framing its question. We note here that Ford's Post-Trial Motion 2lludes
to a potential error in this question's transcription, Def.'s Post-Tm! Motion, 1 112, n.3, but that. upon .further review of
this matter's preserved audio recording, the jury's question was accurately transcribed,

                                                            39
                                                                                       Circulated 12/07/2015 09:49 AM




of not permitting attacks on a verdict on the basis of evidence concerning        jury deliberations because

we are not interested in how the jury got to a result that the evidence supports .... " Harsh v. Petrol/,

No. 4352-1997,         2002 WL 3407557, at *17 (Pa. Com. Pl. Lancaster June 25, 2002) (quoting

Management   ofCivil   Trials, in Handbook for Pennsylvania Trial Judgu (Pa. Conf. of State Trial Judges eds.,

1st ed. 2000)),   ajj'd, 840 A.2d 404, 439. Despite the impetus for submitting the question, "[t]here is

no requirement in the law that the jury specify how it came to the conclusion that the vehicle

contained a defect," Harsh, 2002 WL 3407557, at *17, and any supposed jury confusion alleged by

Ford was evidently .resolved within     thirty minutes of our second instruction when the jury retumcd a

unanimous verdict.

        lo the alternative, Ford asserts that, "even if the malfunction doctrine were applicable, the

Court erred by (1) charging the jury on malfunction as a separate theory of recovery; and          (2) falling

to properly charge the jury on the elements of c.rashworthiness as pa.rt of [the Cancelleris'] bw:den of

proof to establish strict liability upon proof of malfunction."       Def.'s Post-Trial Motion,    1   102. In

explaining its position, Ford contends that,

             109. While the Court did charge on the c.rashworthioess doctrine, the charge as a
             whole was erroneous because it failed to make clear that even though [the
             Caacelleris] could (if the doctrine we.re even applicable) prove the first element
             of their crashworthiness claim-defect-under the malfunction doctrine, they
             were still required to establish the other requisite elements of their
             c.rashwo.rth.ioess claim,

             111. The Court's charge the.refo.re permitted the jwy to find Ford liable simply
             based on coaclusory circumstantial evidence of only one element of [the
             Caacelleris'] c.rashworthiness claim under a theory that never should have been
             charged in the first place.

Id. at 1t 109; 111. As noted mpra, we Instructed the jury in accordance with the principles set forth

by out Superior Court in Blumer, which affirmed a jury verdict in favor of the plaintiff and against

Ford on claims under separate design defect and malfunction theories, inter alia, 20 A.3d at 1129 n.2,

and io Raskin, which affu:med the trial court's instructions clearly distinguishing the c.rashworthiness


                                                      40
                                                                                      Circulated 12/07/2015 09:49 AM




doctrine from the malfunction doctrine. 837 A.2d at 522-23. Though it bas been over a decade since

out Superior Court decided      Raskin, we emphasize that that the current malfunction instruction

under the Pennsylvania Standard Civil Jury Instructions bas remained unchanged, and was used both

in Raskin and the case subjudic~

              16.90 (Civ) STRICT LIABILITY UPON PROOF OF MALFUNCTION
              A plaintiff in a strict liability case may prove his or her case merely by showing
              the occurrence of a malfunction of a product dw:iog normal use. The plaintiff
              need not prove the existence of a specific defect in the product The plaintiff
              must prove three facts: that the product malfunctioned, that it was given only
              normal or anticipated use prior to the accident, and that no reasonable secondary
              causes were responsible for the accident

Pa. SSJI (Civ), § 16.90 (2013). This instruction, given twice within approximately ninety minutes in

combination with the crashworthiness standard articulated in out Superior Court's most recent

crashworthiness cases, Parr, 2014 WL 7243152, at *3, and Gaudio, 976 A.2d at 532, and the

explanation of the differences between the crashworthiness and malfuo.ction doctrines set forth by

our Superior Court in Raskin, 837 A.2d at 522-23, represents the current state of the law in

Pennsylvania. As such, we find that these jury instructions as a whole reflect a clear and accurate

recital of the relevant law related to the claims advanced by the Canccllcris, and therefore, no error

was made.

          Even speculating that instructing the jury on the malfunction doctrine was error, we fail    to


see bow Ford was prejudiced to the extent that it is entitled to the extraordinary remedy of a new

trial. As we have quoted, "A new trial is not warranted merely because some irregularity occurred

dw:ing the trial or another trial judge would have ruled differently .... " Fe'l,Jlton, 84 A.3d at 720

(quoting Harman, 756 A.2d at 1222) (citations omitted). Here, even though the Canccllcris advanced

a malfunction claim distinct from their crashworthiness claim and thereby requested that the jury be

instructed on both, they agreed with Ford, quite significantly, that the jury should not be asked to

answer on its verdict sheet any questions related to an alleged malfunction. The result, simply put,


                                                   41


      -      ~-------                -    ----,---------~                         -      -    -~        -
                                                                                               Circulated 12/07/2015 09:49 AM




was a verdict sheet that asked the jury to decide whether the Sable's airbag/ restraint system was

"defective         in design,"       which     is commensurate    with   their   design   defect claim under    the

crashworthiness            doctrine, an~ not whether the system had malfunctioned         Therefore, we fail to see

how Ford could have been prejudiced to the extent that it is entitled to a new trial based on a

malfunction claim that the Cancelleris ultimately did not ask the jury to decide.

         C. The verdict sheet appropriately allowed the jury to determine the relevant factual
            issues.

             Despite acknowledging that we "did charge on the cr:ashworthiness doctrine," Def/s Post-

Trial Motion,            'ti   109, Ford argues that we "erred by failing to include all of the required

crashworthiness            elements in a crashworthiness case on the verdict form," Id. at ~ 116. Ford does

not, however, cite to any authority that obligates us to do so. Indeed, none exists.

             In Harsh, our Commonwealth Court                 rejected a request by GM to include           special

intcttogatories          on the verdict sheet entailing the specific elements of the crashworthiness    doctrine in

favor of a general verdict sheet 840 A.2d 404. As we have previously written, the Harsh family was

out driving a new 1995 Chevrolet Lumina when they were rear-ended by a tractor trailer. Id. at 413.

The Lumioa burst into flames on impact, and all three Harshes died from smoke .inhalation and

severe bums. Id. At trial, the Harsh Estate argued that the Lumina's fuel system was defectively

                                       17
designed and manufactured,                  thereby prompting GM to request that the following question, among

others, be included on the final verdict sheet:

                  6. Do you find that the use of the altemative design proposed by the plaintiffs
                  for the fuel system in the 1996 Chevrolet Lumina would have prevented the
                  death of

                 Douglas Harsh              Yes   No
                 Connie Harsh               Yes_·.No
                 Tyler Harsh                Yes   No




11 Stt   1,pta note 7.

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Harsh, 840 A.2d at 438. It is clear that this question was intended to encapsulate the crashworthiness

doctrine's element entailing what injuries, if o.ny, the plaintiffs would have sustained if the alleged

alternative, safer design had been used. See Parr, 2014 WL7243152, at *3; Gaudio, 976 A.2d at 532;

Raskin, 837 A.2d at 523; Colville, 809 A.2d at 923;      l.v,petz,   644 A.2d at 1218. However,     "after

deliberating and consulting the Handbook for State Trial Judges published          by the Pennsylvania

Conference of State Trial Judges, the trial court judge determined that because Plaintiffs only bad to

prove that the Lumina was defective, a general verdict would be more appropriate." Harsh,        840 A.2d

at 439. As such, the trial court rejected the specific inte.r:rogatories suggested by GM in favor of only

two broad questions related to crashworthioess:

            Question 4:
            Do you find that there was a defect in the 1995 Chevrolet Lumina owned by
            Douglas and Connie Harsh?
            Yes __     No __

           Question 5:
           If you find that there was a defect in the 1995 Chevrolet Lumina owned by
           Douglas and Connie Harsh, was that defect a substantial factor in causing the
           deaths of the Harsh family on April 21, 1995?
           Yes __      No __

Id. The trial court fully explained its rationale for doing so, which        was later affumed    by our

Commonwealth     Court

           Under the law of Pe.onsylvania, the plaintiff is required to prove only that the
           product was defective. The plaintiffs in this case presented credible and
           substantial evidence &om which the jury could have concluded that the Harsh
           Lumina contained a manufacturing defect or a design defect or both. These a.re
           altemative theories which the jury can consider when deciding the basic question
           of whether the product was defective. There is no requirement in the law that the
           jury specify how it came to the conclusion that the vehicle contained a defect

           I note that in the Handbook far Stole Trial ]11dges published by the Pennsylvania
           Conference of State Trial Judges there is a discussion of special verdicts in civil
           jury trials. The Handbook notes:

               "We have a history of not pe.nnitti.og attacks on a verdict on the basis of
               evidence conceming jury deliberations because we are not interested in
               how the jury got to a result that the evidence supports ... Since this is a

                                                  43
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                 group process, a jury may not do a good job in explaining how ten of the
                 twelve jurors arrive at a final decision that the evidence will support We
                 weaken the right of the parties to have their case decided by a jury rather
                 than by a judge if we use a structure that is designed to evaluate the
                 process by which the jury decided a case." Handbookfar Stale TrialJudger,
                 "Management of Civil Jury Trials," Pennsylvania Conference of State
                 Trial Judges, First Edition.

Harsh, 840 A.2d at 439-40 (quoting Harsb, No. 4352-1997, 2002 WL 3407557, at *~6-17). Wi_th its

explanation. the trial court plainly rejected GM's argument that "the trial court's failure to provide

the jury with the special interrogatories         eliminated    the altemative design element under the

crashworthincss portion .of the design defect claim."        Id. at 440. As our Commonwealth Court noted

when affirming the ruling, "because the ultimate question, after all, was whether the product was

defective, it was not an abuse of discretion for the trial court judge to refuse GM's request to submit

the special interrogatories." Id. Wrote the Court,

             . . . Plaintiffs did not have to prove that the Lumina was defective under a
            particular theory of strict liability, but only that the Lumina was sold in a
            defective condition and caused the Harsh's deaths. Regardless of whether the
            Lumina was designed improperly or manufactured improperly, in this case, the
            jury determined that the Harshs died as a result of a defective GM product
            Consequently, the trial court did not ctr with regard to the verdict slip.

840 A.2d at 440-41 (internal footnote omitted).

        "A party   is not   entitled to have special intcrrogatories submitted to the jury."    Fritz. v. TPright,

907 A.2d 1083, 1091 o.8 (Pa. 2006) (citation omitted);          Harsh, 840 A.2d at 440 (citation omitted).

"Rather, the decision whether to submit special interrogatories            to a jury is a ruling left to the

discretion of the trial court."   Fritz, 907 A2d at 1091 n.B (citation omitted); Harsh, 840 A.2d at 440

(citation omitted). In particular, "{t]he trial court      judge may grant or refuse a request for special

interrogatories on the basis of whether they would add to the logical and reasonable understanding

of the issues." Harsb, 840 A.2d at 440 (citing Century 21      Heritage Realty, Inc. v. Blair, 563 A.2d 114 (Pa.

Super. 1989)).



                                                      44
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             The ultimate issue here was whether the product in question was defective. If the jury was

    simply asked whether the airbag/restraint system in the subject 2005 Mercury Sable was defective,

    then the Cancclleris' current argument that "there was circumstantial evidence from which a jury

    could infer a defect (malfunction)" would be more applicable to the issue of whether the verdict

   sheet was erroneous. See Pis! Brief in Opp., p.27, 11/05/14. If such a verdict question were posed,

   as we have written, all that the Cancclleris would have to prove was that the Sable "was sold in a

   defective condition and caused the harm, and it [would] not matter if the jury came to that

   conclusion based on a finding that it was a manufacturing defect or a design defect or both." Harsh,

   840 A2d at 44018 (citing Pbillip1665 A2d 1167).

            However, unlike GM in Harsh, Ford in this case had the added benefit of specificity.Instead

   of simply asking whether the Cancclleris' 2005 Mercury Sable was defective, this juty was asked

   whether the particular product in question, the airbag/ restraint system, was defidive!J desig,rtd, and oho

   whether there was an alternative, safer, and practicable design. Jurors were further asked whether

   any such defect factually caused or exacerbated Cancelle.ci'sinjuries. Notably, jurors were instructed

   twice on the Cancellezis' burden of proof with respect to their design defect claim even before they

   first began their deliberations, and they were supplied with ample evidence at trial that the putative

   safer designs put forth by the Cancellcris' experts would have prevented all of the injuries that John

   Cancellezi sustained. See supra Part ill(A}(2).As a result, asking them to determine on the verdict

   sheet "what injuries, if any, the plaintiffs would have sustained if the alleged alternative, safer design

   had been used" seemed to add little, if any, further material understanding of the issues.

       D. We properly granted the Ceacellesis' Motion in Limine to Preclude Ford's Experts'
          Surrogate Studies

            Ford next contends that we "erred in precluding Ford's Experts' sw:rogate studies to rebut

   plaintiffs' causation theory." De£'s Post-Trial Motion, Part G. This issue was not raised at trial, but

   1a S" n,pm norc   7.

                                                      45


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                                                                                      Circulated 12/07/2015 09:49 AM




rather, in the Cancelleris' Motion in Limine to preclude the studies. See Pls.' Motion         in Limi11e to

Preclude Certain Ford Crash Testing, Surrogate Work, and Photographs, 06/06/14. In addition to

the arguments addressed herein, Ford claims that "the [surrogate] studies were relied on by Ford's

experts, and therefore, testimony regarding those materials is not simply permitted by Pennsylvania

Rule of Evidence 705, but is mandatory." Def.'s Post-Trial Motion,          ,I 136 (citations omitted). We

initially .find that this argument overlooks the significant "if" which begins the conditional sentence

that is Rule 705. The question of whether, or if, ao expert is allowed to state an opinion to a jury    is a

question for the court, as it is well-established that "the admission of expert scientific testimony   is an

evideotiary matter for the   trial court's discretion and should not be disturbed on appeal unless the

trial court abuses its discretion."    Commonwealth v. Safko, 95 A.3d 304, 307 (Pa. 2014) (citations

omitted);   Grady v. Frito-Lay, t«, 839 A.2d 1038, 1046 (Pa. 2003).

         Generally, a motion   in lt'mine "is used before trial to obtain a ruling on the admissibility of

evidence." Parr, 2014 WL 7342152, at *5 (citing Northeast      Fence & Iron Works, Inc. v. Murphy Quiglry

Co., Inc., 933 A.2d 664 (Pa. Super. 2007), appeal dtnjed, 947 A.2dd 737 (Pa. 2008)). Such a motion

"gives the trial judge the opportunity to weigh potentially prejudicial and haanful evidence before

the trial occurs, thus preventing the evidence from ever reaching the     jury." Id. (quoting Commonwealth

v. Rem, 31 A.3d 708, 715 (Pa. Super. 2011) (en bane)). "A trial court's decision to grant or deny a

motion   in ljmine 'is subject to an evidentia.ry abuse of discretion standard of review.'" Id. (quoting

Reese, 31 A.3d at 715). As our Superior Court bas recently articulated,

             Questions concerning the admissibility of evidence lie within . the sound
             discretion of the trial court, and we will not reverse the court's decision absent a
             clear abuse of discretion. Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 492,
             496 (Pa.Super.2011)       (citing Stumpf v. Nye, 950 A.2d 1032, 1035-1036
             (Pa.Super.2007)). "An abuse of discretion may not be found merely because an
             appellate court might have reached a different conclusion; but requires a manifest
             unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support
             so as to be clearly erroneous." Grady v. Frito-Lay, Inc, 576 Pa. 546, 839 A.2d 1038,
             1046 (Pa.2003).


                                                    46
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Parr, 2014 WL 7342152, at *5 (quoting Krys/one Dedicated 1..JJgislics, LLC v. ]GB Enur; Inc., 77 A.3d 1,

11 (Pa. Super. 2013)). Additionally, "to constitute reversible error, an evidcntiary ruling must not

only be erroneous, but also hannful or prejudicial to the complaining party."           Id (quoting Winschel v.

Jain, 925 A.2d 782, 794 (Pa. Super. 2007) (cit.ation omitted), appeal denied, 94-0 A.2d 366 (Pa. 2008)).

        1. Relevant Evidence Standard

        Our evidentiary determinations are pcimarily guided by our             Rules of Evidence and our

standards for relevance. "Evidence is relevant if: (a) it has   any tendency    to   make a fact more or less

probable than it would be without the evidence; and       (b) the fact is of consequence in determining

the action," Pa.R.E. 401. "Whether evidence has a tendency to make a given fact more or less

probable is to be determined by the court in the light of reason, experience, scientific principles, and

the other testimony offered in the case." Pa.R.E. 401 cmt Moreover, "[t]he relevance of proposed

evidence may be dependent on evidence not yet of record."        Id "All relevant evidence is admissible,

except as otherwise provided by lawLJ" and "[e)vidcnce that is not relevant is not admissible."

Pa.R.E. 402. "The court may exclude relevant evidence if         its   probative value is outweighed by a

danger of one or more of the followiog: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting       cumulative evidence." Pa.R.E. 403. "Unfair

prejudice" means "a tendency to suggest decision on an improper basis or to divert the jury's

attention away from its duty of weighing the evidence impartially." Pa.RE. 403 cmt.

        2. Demonstrative Evidence Standard

        "The admissibility of evidence, including demonsttat:ive evidence, rests largely within the

discretion of the trial court."   Harsh, 840 A.2d at 421 (citing Leonard    l?>1 Mrym    v. Nirhols Homesbield,

Inc., 557 A.2d 743, 745 (Pa. Super. 1989), appeal denied, 575 A.2d 115 (Pa. 1990)).

        Both our Superior         Court aod Commonwealth        Court have opined          that, "Where    the

demonstration   of evidence is a physical representation of the incident or event, the conditions must


                                                   47
                                                                                Circulated 12/07/2015 09:49 AM




be sufficiently close to those involved in the accident at issue to make the probative value of the

demonstration outweigh the prejudicial effects." Harsh, 840 A.2d at 421 (citing Leonard, 557 A.2d at

7 45). However, our Superior Court bas also noted that "[ejxperiments showing general properties of

materials arc admitted without confining the experiments to conditions surrounding the litigated

situation." Leonard by Mrym, 557 A.2d at 747 n.6 (citing M&Cormide on Evidence§ 202, 603 n.25, 26 (3d

ed. 1984)). According to the Court, "a test undertaken to obtain greater scientific knowledge of

general principles .. , as opposed to an experiment commissioned for a specific law suit ... has the

added advantage of being untainted by an interest in the litigation."   Id

              a. The Marth Study
         Ford proposed to introduce evidence of two surrogate experiments, both of which were

commissioned by Ford and undertaken less t.han a year before the start of this matter's trial The

fust experiment was performed by Ford's biomechanical expert, Dr. Debora Marth, on October 7,

2013.   In particular, Marth used an "exemplar vehicle ... built in April of 2004" and a male surrogate

"who was generally the same height and weight as ... Cancelled. at the time of the subject accident,"

Def.'s Expert Report by Debora Marth (hereinafter "Marth Report"), p.15, 10/10/13, to experiment

as follows:

                 1. "Tbe steering wheel and the driver's seat were adjusted to the positions
                    they were found in at the time of [Marth's] inspection of [Cancellezi's
                    Sable]." Id at 1 S.                                           ·

                 2. The surrogate "was placed in the drivers scat with the seat belt worn
                    properly." Id.

                 3. "[Tjhe scat position was matched as closely as possible [to] the position
                    depicted in the report written by [Cancellezi's] expert ... .''Id.at 16.

                 4. "With the scat in. this position, ~e surrogate's chest was approximately
                     13 inches from the airbag module. H.is head was about 15 inches from
                     the upper rim of the steering wheel." Id.




                                                  48




                                                                         ------ ---             -·- -
                                                                                  Circulated 12/07/2015 09:49 AM




                5. "(TJhe surrogate was asked t~ flex his head and neck forward toward the
                   steering wheel to simulate occupant kinematics in [Cancelleri's) accident."
                    Id.

                6. "[Tlhe surrogate was asked to present his head to the steering wheel
                   upper rim to demonstrate the contact location required to produce the
                   laceration sustained by [Cancellezi]." Id

        In support of its proposed admissibility into evidence, Ford argued that Marth's surrogate

work was "in no way conducted to replicate or recreate the subject accident," and that the

experiment was actually conducted "for the purpose of taking measurements of a person

approximately the same size as Mr. Cancelleri to determine the geometry of the interior of the

vehicle to assist in determining the kinematics and biomechanics of an occupant." Defs.' Brief in

Supp. of Def.'s Resp., p.S, 07/03/14. Ford now makes the same argument, namely that "[n]either

surrogate study was performed to replicate exactly what happened in this crash .... " Def.'s Post-

Trial Motion, ,r 26. However, Ma.rth's own words are squarely at odds with Ford's contention, as she

herself, in notably the only sentence to mention "kinematics" under the heading "Surrogate Work''

in her report, writes that "the surrogate was asked to flex his head and neck forward toward the

steering wheel to simulate occupant kinematics in the n,bject aaides:" Marth Report, p.17 (emphasis

added). Based on this representation and common usage of the word "simulate," as well as the

aforementioned lengths to which Marth attempted to match the circumstances of her work with the

circumstances of Caacelleri's accident, we .readilyconclude that Marth's experiment was performed

with an eye toward replicating at least some of the circumstances of Cancelleri's accident




                                                 49
                                                                        Circulated 12/07/2015 09:49 AM




        Marth Report, p.15, Figure 11.        Id. at p.16, Figure 12.




Id. at Figure 13.                             Id. at Figure 14.




Id. atp.17, Figure 15.                        Id. at Figure 16.


                                         50
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        Consequently, in order for this type of evidence to be admissible, its conditions "must be

-sufficiently close to those involved in the accident at issue to make the probative value of the

demonstration outweigh the prejudicial effects." Harsh, 840 A.2d at 421 (citing Leonard, 557 A.2d at

745). Here, the conditions of Marth's experiment were not sufficiently close to those of Cancellezi's

accident for two primary reasons. First, the "exemplar vehicle" used in her experiment is

unidentified, thus requiring us, and potentially the jury, to guess as to bow similar or dissimilar the

vehicle is to Caocelle.ci'sSable. We declined to do so, and should not be expected to do so. Second,

the experiment was pe.rfonned in a static rather than dynamic environment, Dr. Marth concedes that

the motion in her study was "limited due to the static envi.conment," and that "in a dynamic setting

there would be additional forward occupant excursion." Marth Report, p.17. As such, evidence of

Marth's study was properly precluded under Harsh.

       Additionally, because the Marth       study attempted to simulate the circumstances of

Cancelleri's accident rather than demonstrate general scientific principles, we likewise found that the

probative value of such evidence was outweighed by the danger of confusing the issues and

misleading the jury. As such, evidence of Marth's study was also inadmissible under Pennsylvania

Rule of Evidence 403.

           b. The   Pearson Study
       The second surrogate study that Ford planned to introduce was performed by Jeffrey

Pearson, Like Dr. Marth's experiment, Pearson used a surrogate with "the stature and weight of Mr.

Cancelleri" along with a 2004 Ford Taurus station wagon, which he writes "is manufactured on the

same platform as the Mercury Sable," Defs.' Expert Report by Jeffrey L. Pearson (hereinafter

"Pearson Report"), p.18, 10/09 /13, to experiment as follows:

               1. "The Taurus driver's leather bucket seat was electrically adjusted similar
                  to that of Mr. Cancelleri's." Id.



                                                 51
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                    2. With the scat in this position, "seat belt length measurements were
                       made." Pearson Report, p.18.

                    3. "The surrogate indicated that this was not the most comfortable position
                       for hun personally." Id.

                    4.   "To investigate a range of seat positions which an occupant of this
                         stature and weight might choose[.] we adjusted the scat position to
                         approximate the position represented in the photographs provided in
                         [Caacelleri's] expert report" Id.               ·

                    5. When conducting measurements approximated to those during
                       Caocclleri's accident, "the surrogate was not able to contact the stect:ing
                       wheel rim with the top of his head. However, under dynamic impact
                       conditions, and with body tissue compression not achievable with a
                       volunteer subject, it is poss.iblc that Mr. Canccllcri's head may have
                       reached the steering wheel rim, however, he would not have been able to
                       strike the windshield." Id. at 18-19.

         Just as it did with Marth's study, Ford argued that Pearson's surrogate work was "in no way

conducted to replicate or recreate the subject accident," and that the experiment was actually

conducted "for the purpose of taking seat belt measurements to analyze different scat and restraint

positions." Dcfs.' Brief in Supp., p.5. However, experiments involving scat belt measurements do

not appear to exemplify the kinds of "[cJxpcriments showing general properties of materials" that

our Superior Court had in mind with regard to admissible demonstrative evidence that                                is not

substantially similar to the circumstances of the given event in question. See Leonard i?J Mryerr, 557

A.2d at 747 n.6 (referencing an experiment involving "general physics universal in its application")

(citation omitted).19

         As such, in order for this type of evidence to be admissible, its conditions "must be

sufficiently close to those involved in the accident at issue to make the probative value of the

demonstration outweigh the prejudicial effects." Harsh, 840 A.2d at 421 (citing Leonard, 557 A.2d at
19 Actually, in Ltonard by M9tr1, one of the only Pcnnsylvarua cases to comment on this issue, the Superior Court

referenced an experiment .involving "general principles of physics universal .in its application" when it noted that "a test
undertaken to obtain greater scientific knowledge of geeeesl principles ... as opposed to an experiment commissioned
foe a spcci.6c law suit ... has the added advmt2ge of being untrained by an interest in the litigation." 557 A2d at 747 n.6
(citing M&Cormidt. 011 Evid111rt § 202, 603 n.25, 26 (3d ed. 1984)).


                                                            52
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 745). Here, the conditions of Pearson's experiment are not sufficiently close to those of Cancelleri's

 accident for two primary reasons. First, the vehicle used in his experiment was a 2004 Ford Taurus

 station wagon rather than a 2005 Mercury Sable; and second, the experiment was performed in a

 static rather than dynamic environment As such, evidence of Pearson's                             study was inadmissible

under    Harsh. Id. We do not doubt Ford's assertions that "surrogate studies with exemplar products

are routinely performed and relied on by experts in products liability cases" and that "state and

federal courts in Pennsylvania have found such studies to be reliable bases for experts' opinions."

Def.'s Post-Trial Motion, 1132. However, w.e are neither bound n?r compelled by the authorities on

which Ford relics to conclude that Ford's surrogate studies should have been admitted in this case.20

          Moreover, and quite significantly, because the Pearson study attempted to purport that seat

belt measurements ate somehow a form of general scientific principles, we likewise found that the

probative value of such evidence was ou~cighed by the danger of confusing the issues and

misleading the      jury. As such, evidence of Pearson's study was also inadmissible under Pennsylvania

Rule of Evidence 403.

     E. We properly precluded application of the Restatement {Third) of Torts along with
        evidence of industry standards.

          In its fust Post-Trial Motion, Ford alleges that we "erred by refusing to admit evidence of

industry standards, under either the Restatement                   (Third) of Torts: Products Liability § 2 or the

20 Ford cites three federal rulings. In the first, Eli,le 11. Ford. Motor C«, the plaintiff's expert "performed a series of
quasistatic inversion tests on a 1994 Ford Explorer exemplar vehicle and on the same model equipped with. nvo
proposed alternative designs," and then proceeded to add "five pounds of tension to the seatbelt in order to simulate the
activation of the rollover preteasioner in this altemative restraint system." No. 08-1700, 2010 WL 2505917, at •1
(W.D.Pa. Ju.oe 21, 2010). In the second, Pa. Tnat Co. 11. Dort/ }11mil, Grp., Inc, the court, without desc.abin.g the srudy
perfoaned, merely concluded that Ford's expert's method "included a review of the case files, inspection of an exemplar
vehicle and seat with a surrogate subject, aod accident reconstruction performed by a licensed professional engineer, and
a biomechankal an:uysis of the collision forces at work io the m.in.ivao.'s passenger cabin at the time of impact." 851
F.Supp.2d 831, 839 (E.D.Pa. 2011) (citation omitted). Ia the third, B11rkt 11. Trt1111a111 Tn1tki11g, In«, the plaintiff'~ expert
used the vehicle parameters and measurements of the plaintiffs vehicle, a 2000 Ford Ranger, to perform laboratory
compression testing and a vehicle dynamics analysis. 617 F.Supp.2d 327, 329-330 (MD.Pa. 2009). The expert also
"utilized the Aanstrong Laboratory/Weight-Patterson A.ii: Force Base (AL/WPAFB) computer progr:t111 to analyze this
data; detcanioed the geometric and mass properties of Plaiotiff's body segments and joi.ot locations and range of motion
characteristics usiJ?g the Generator of Body Data (GEBOD) AL/WFAFB computer program and performed dynamic
analysis for the collision using this program." Id.

                                                              53




                                                                                            ·------
                                                                                                            -·-----          ·- -
                                                                                            Circulated 12/07/2015 09:49 AM




        Restatement (Second) of Torts § 402A in a crashworthiness case, prejudicing Ford." De£'s Post-

        Trial Motion, 1144. In its Post-ArgumentNotice of Supplemental Authority, Ford contends that

        our Supreme Court's overruling of Azza~llo v. Black Brothers Co., 391 A2d 1020 (Pa. 1978), in Tincher

        u: Omega Flex, -      A.3d --, No. 17 MAP 2013, 2014 WL 6474923 (Pa. Nov. 19 2014), is

        confirmation that "it was error to exclude evidence of industry standards and customs .... " Def.'s

        Post-Argument Notice of Supp. Auth., p.1, Nov. 24, 2014. We disagree based on the plain language

        of Tintber, where ow: Supreme Court held, inter alia,

                     To the extent relevant here, we decline to adopt the Restatement (Third) of
                     Torts: Products Liability §§ 1 et aeq., albeit appreciation of certain principles
                     contained in that Restatement has certainly informed our consideration of the
                     proper approach to strict liability in Pennsylvania.in the post-Az.zar?llo paradigm.

        2014 WL 6474923, at *1. As to the "extent relevant'' in Tincher, the Court wise.Jy noted,

                     Omega Flex notes that this approach [under ~~an/lo] has the collateral effect of
                     rendering laws, regulations, and industry standards irrelevant to the risk-utility
                     inquiry, with deleterious and unpredictable consequences for plaintiffs and
                     defendants. Omega Flex does not develop this assertion and, as a result, we do not
                     address it in P11.J detail.

        Id. at 11 o.4 (emphasis added). Consequently,it was and remains proper in Pennsylvania to apply the

        Restatement (Second) of Torts § 402A to evidentiary issues related to industry standards.

                1. Industry Standards Evidence Standard

                Out appellate courts have made clear that "the question of whether or not the defendant has

        complied with industry standards improperly focuses on the quality of the defendant's conduct in
                                                                              '

        making its design choice, and not on the attributes of the product itself." Gaudio, 976 A.2d at 543

        (quoting Lewis v. Coffing Hoist   t»; Dlljf-Norlon Co., fnc.,   528 A.2d 590, 594 (Pa. 1987) (citation

        omitted)). Specifically,our Supreme Court has «held that 'such evidence should be excluded because

        it tends to mislead the jury's attention from their proper inquiry,' namely 'the quality or design of the

        product in question."' Id. (quoting Lewis, 528 A.2d at 594) (citations omitted)). Moreover, the Court

        "also indicated that 'there is no relevance in the fact that such a design is widespread in the
                                                           54


---   ---      ---            ---
                                                                                         Circulated 12/07/2015 09:49 AM




    I    industry." Gaudio, 976 A2d at 543 (quoting Lewis, 528 A.2d at 594). 'This rationale to exclude
    I    evidence of compliance with industty standards has also extended "to exclude evidence of
I
         compliance with govcmment standards." Id. (citing, e.g., Harsb 840 A.2d at 425) (evidence of
I
         compliance with the Federal Motor Vehicle Safety standards is inadmissible in products liability

         actions).

                 This is not   to   say, however, that all evidence of compliance with industry or government

        standards by a defendant is inadmissible as not relevant We acknowledge that "a plaintiff may 'open

        the door to the introduction of evidence of co~pliance with industry or government standards by a

        defendant if a plaintiff's witness testified about industry or govemment standards during either

        direct or cross-examination." Id. at 544. "Io this regard, however, the openings so created should    be'
        reasonably related in scope to the substance of the offending testimony." Id Overall, "a defendant's

        opportunity to introduce evidence of compliance with industty or government standards is limited

        to testimony necessary to respond to the evidence presented (i.e., to deny or rebut it)." Id.

                Here, just as it did before trial, Ford argues that evidence of industry or government

        standards, state of the art concepts, industry customs, and its own reasonableness in design or

        manufacture of the 2005 Mercury Sable should have been permitted "because this is a

        crashworthiness case where issues of foreseeability, reasonableness, and [Ford's] knowledge of

        unintended but foreseeable uses would be at issue." Def.s' Post-Trial Motion,      1   141. Io precluding

        this evidence before trial, we reasoned that because such an exception to the general exclusion of

        evidence of compliance with industry and govemment standards had yet to be decreed, Ford's

        argument necessarily failed, and it may only have used such evidence to deny or rebut testimony

        presented by Cancelleris' witnesses. Since none of Cancellcris' witnesses presented any rebuttable

        testimony substantially related to these issues, there was no need to revisit these issues during trial.

        As a result, there is no present need to revisit our ruling.


                                                            55
                                                                                                                                      -·--··-
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               F. Wepropedyprecluded evidence conceming tests by NHTSA and the IJHS.

                   In the last issue of its Post-Trial Motion, Ford contends that "the Court erred in excluding
                                                           21
          evidence concerning tests by NHTSA                    and the llHS22 duriag        Mr. Caruso's cross-examination,"

          Def.'s Post-Trial Motion, Part G. In particular, Ford contends that a number of Offset Deformable

          Barrier tests performed by the NHTSA and the IIliS "were relevant to impeach Mt. Caruso's

          credibility concemiog         the alleged causal connection            between the crash and displacement of

          fiberglass as it relates to the performance of the FCS." Def/s Post-Trial Motion,                         if   150 (citation

          omitted).

                   Here, we readily acknowledge that "where the evidence proposed goes to the impeachment

         of his opponent's witness, it is admissible as a matter of right"                Ratti v. WheelingPittsburgh Steel Corp.,

         758 A.2d 695, 709 (Pa. Super. 2000) (quoting              Feingold 11. So11thea.stern Pa. Transp. A11th., 517 A.2d 1210:

         1274 (Pa. 1986)). The problem for Ford, however, was that Caruso could not be impeached with
I        evidence of industry standards previously precluded by this Court nor on tests that were not elicited

I        on direct examination. Ford concedes the latter, writing that "Caruso did not mention the above

         tests during his direct examination               .... " Def.'s Post-Trial Motion,          ,i 149 (citation omitted).

         Moreover, this is not an issue related to "prior claims testimony."                See Spino v. John S. TilltyLadder Co.,

         969 A.2d 1169, 1173 (Pa. 1997) (Evidence of the non-existence                       of prior claims is admissible in a

         products liability case if      (1) the evidence is relevant to the issue of causation; and (2) the offering

         party bas provided a proper foundation, .oa.mely that "they would have known about the prior,


         21 The National HigbW11yTraffic Safety Administatioa, or N.EITSA., is an agency of the United States Department of
         Traasportaziou, and ''was established by the Highway Safety Act of 1970 and is dedicated to achieving the highest
         sta.oduds of excellence in motor vehicle and highway safety." About NHTSA, Nat'/ High111~ Tnrj/ir Saft!J 4dmi11.,
         http://www.nhts:a.gov/.About{last visited Dec. 9, 2014). Moreover, "[i]t works daily to help prevent crashes and their
         attendant costs, both human and .6.nancial Id.

         22 The Insurance Institute for .Highway Safety, or IlHS, "is an independent, nonprofit scientific and educational
         organization dedicated to tcduci.og the losses-deaths, i.njw:ics, and property damage-from crashed on the nation's
         roads." Abo11t the I111tiflllt1, Jnr. Inst. far HiJhlV~ Saft!J, http://www.iihs.org/iihs/about-us {last visited Dec. 9, 2014).
         Moreover, "IlHS W2S founded in 1959 by three major insurance associations zepreseatiag 80 percent of the U.S. auto
         insurance matkeL" Id.

                                                                      56
                                                                                               Circulated 12/07/2015 09:49 AM




substantially similar accidents involving the product at issue.");              Parr, 2014 WL 7342153, at *12 (The

proponent of the evidence bears the burden "to establish, to the court's satisfaction, the similarity

between other accidents and the subject accident before this evidence could have been admitted for

any purpose,"          (citing   Hutchinson, 876 A.2d 978)). Therefore, evidence concerning tests by the

NHTSA and the HHS was properly precluded for all of the same reasons set forth in 11pra Part

IV(E). See also Gaudio, 976 A.2d at 547 (In precluding the NHTSA's safety ratings for the 1994 to

1996 Ford F-150, our Superior Court wrote that "manufacturers                         may not attempt to prove the

quality or design of their product by showing that it comports                         with industry or govemmeot

standards or is in widespread industry use." (citation omitted)).

    G. The jury was properly instructed with regard to the standard of proof in a strict
       liability action.

         Finally, in its Post-Argument Notice of Supplemental Authority, Ford argues that because

"Tincher specifically rejected the Az:z.anllo jury instruction," the language used in this Court's jury

instructions    "amounted to a 'fundamental c.cror"' and "a 'new trial                 [ls) appropriate.'" Def.'s Post-

Argument Notice of Supp. Auth., p.~. 11/24/14 (citing                  Tincher, 2014 WL 6474923, at *72). This

"fundamental error" goes unexplained in Ford's Post-Argument                         Notice, tliougb Ford appeaxs to

contend, quite incredibly, that usage of the phrases "guarantor"                       and "every element" in jury

instructions for strict .liability cases automatically amounts to a fundamental error necessitating a new

trial. Said F ord, in a patchwork of Tincher parentheticals,
                                                '
                Tincher overruled Az.z.anllo in all relevant respects. Tincher specifically rejected the
               Azz.arel/.o jury instruction. See Tincher 2014 WL 6474923, at *42 ('gua.rantol'
               language is "impractical" and "failed to explain" "terms of a.rt''); *29 ("every
               element" language was taken "out of context by the majority in Azzpre/1.o as the
               standard of proof in a strict liability action"); *40 (10struction as a whole
               "perpetuated jury confusion ... rather than dissipating it"). Because the Court's
               instructions amounted to a "fundamental error," a "new trial [is] appropriate." Id.
               at *72 (citing Price 11. G11.J, 735 A.2d 668, 672 (Pa. 1999) (footnote citation
               omitted).



                                                        57


                   -     --..    -- -- - - -    - ~    -     -.   --   ------    -     - ---.        - ---   ---     -    --   - ~   -
                                                                                          Circulated 12/07/2015 09:49 AM




 Def.'s Post-Argument Notice of Supp. Auth., p.2. Ford's request for a new trial on these grounds is,

_as the Cancelleris aptly put, a request "to go where the Tincher Court never did-to make a quantum

leap to find prejudicial error from the mere inclusion of the 'guarantor' and 'every clement' language

in a jury charge." Pls.' Resp. to Supp.Auth., p.2, 12/15/14.

        Significantly, Ford omits Tincher'! decree that, despite overruling Az.z.areUo and supposedly

rejecting all jury instructions borne out of it, "Whether Omega Flex is entitled to additional relief,

including a new ttial or judgment notwithstandiog the verdict is not apparent upon the record before

us." Tincher, 2014 WI.. 6474923, at *72. Without any further argument regarding a "fundamental

error" on this point, we cannot find that Ford was prejudiced by our instructions as a whole. The

jury was properly instructed on the definition of "design defect" based on the principles set forth in

Gaudio and the current Pennsylvania Standard Civil              Jury   Instructions. In Ga11dio, the trial court

instructed,

              The supplier of a product is liable for the injuries caused to a Plaintiff by a defect
              in the article which existed when the product left the possession of the supplier.
              Such liability is imposed even if the supplier has taken all possible care in the
              preparation and sale of the product. The manufacturer of a product is a
              guarantor of its safety.... If you find that the product at the time it left [Ford's]
              control lacked any element necessary to make it safe for its intended use or
              contained any condition that made it unsafe for its intended use and there was an
              alternative safer design then the product was defective. [Ford] is liable for all
              harm caused by the defect.

976 A.2d at 550 (citing Trial Notes of Testimony, 15-16, June 16, 2006). Similatly, our Standard Civil

Jury Instructions    provide,

              16.20 (Civ) DEFINITTON OF DESIGN "DEFECT'
              The {specfb !}Pe ofnpplier, e.g., mt11tufaa11rer, distributor; wholesaler, ae] of a product is
              a guarantor of its safety. The product must be provided with every clement
              necessary to make it safe for [its intended] use, and without any condition that
              makes it unsafe for [its intended] use. If you find that the product, at the time it
              left the defendant's control, lacked any clement necessary to make it safe for [its
              intended] use, or contained any condition that made it unsafe for fits intended]
              use, [and there was an alternative, safer practicable design,) then the product was
              defectivc and the defendant is liable for all harm caused by the defect.


                                                        58
                                                                                   Circulated 12/07/2015 09:49 AM




Pa. SSJI (Civ), § 16.20 (2013). Based on these standards, we instructed the jury as follows:

           Now, I am using the term design defect Ford, as the manufacturer of the airbag
           restraint system of the 2005 Mercury Sable is the guarantor of the system's safety.
           The system must be provided with every element necessary to make it safe for its
           intended use and without any condition that makes it unsafe for its intended use.
           A manufacturer like Ford must include accidents as intended uses and design
           accordingly.

           If you find that the airbag restraint system of the 2005 Mercury Sable at the time
           it left Ford's control lacked aoy element necessary to make it safe for its intended
           use or contained any conditions that made fr unsafe for its intended use and that
            there was an alternative safer practical design that would have prevented Mr.
            Cancellezi's injuries, then the system was defective, and Ford is liable for the
            harm that produced the injuries above and beyond those that we.re probably
          · caused by the Sable's origin.al collision, if you find that injuries would have been
            caused in the original collision had the airbag deployed.

N.T., 94-95:2-1, 08/21/14 (Nardozzi). Review of this instruction as a whole yields an extrapolation

of the principles clearly expressed by our Supreme Court in   Tincher, namely that,

           Strict liability in tort for product defects is a cause of action which implicates the
           social and economic policy of this Commonwealth .... [T]hose who sell a
           product (I.e., pro.fit from making and putting a product in the stream of
           commerce) are held responsible for damage caused to a consumer by the
           reasonable use of the product. The risk of injury is placed, therefore, upon
           the supplier of products.

           Stated af.finnatively, a person or entity engaged in the business of selliog a
           product has a duty to make and/ or market the product-which "is expected to
           and does reach the user or consumer without substantial change in the condition
           in which it is sold"-free from "a defective condition unreasonably dangerous to
           the consumer or [the consumer's) property." Accord RESTATE.MENT (2D) OF
           TORTS§ 402A(1).

Tincher, 2014 WL 6574923, at *45--46 (internal citations omitted) (emphasis added). Finding that

these instructions comport   with the current state of the law, and that any error in using the phrases

"guarantor" and "every element" could not possibly amount to prejudice against Ford requiring a

new trial, Ford's Post-Argument Notice of Supplemental Authority      is sitnilarly unpersuasive.




                                                  59


                                                                      - - - -
                                                                                  Circulated 12/07/2015 09:49 AM




V. Conclusion
       In short, Ford asks us inventively to enter a ]NOV in its favor or award it a new trial based

predotninantly on malfunction issues that the jury was ultimately not asked to decide and concepts

of the Third Restatement. Because we decided the former in compliance with the law and because

adoption of the latter was expressly rejected by our Supreme Court, Ford's Post-Trial Motion is

denied in its entirety.




                                                    60
                                                                              Circulated 12/07/2015 09:49 AM




JOHN A. CANCELLERI and                                      In the Court of Common Pleas
ROSETTA CANCELLERI, His Wife,                               of Lackawanna County
                                                                               ;::o           ,_,        ·.-:,.

               Plaintiffs                                                      f'T"\:,
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      v.                                                    Civil Division     ~~               I         : .: :,,
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FORD MOTOR COMPANY and                                                          ··-·-=-·
                                                                                -:: :·:
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RAY PRICE MOTORS, INC.,                                                          ---
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               Defendants                                   No. 2011-CIV-6060 z:                           ·<

           ORDER DENYING DEFENDANT FORD'S POST-TRIAL MOTION

       AND NOW, this 911, day of January, 2015, upon. consideration. of th.e Defendant's motion,

the Plaintiffs' response thereto, briefs and supplemental authority submitted by both parties, and

oral argument, it is hereby ORDERED th.at the Motion for Post-Trial Relief filed by Defendant

Fo.td Motor Company in. the above-captioned matter on. September 2, 2014 is DENIED.




                                                    BYTHECOURT




                                               61
                                                                                                Circulated 12/07/2015 09:49 AM

    \
'       \
            /




                 JOHN A. CANCELLERI and                                          In the Court of Common Pleas
                 ROSETTA CANCELLERI, His Wife,                                   of Lackawanna County

                                  Plaintiffs
                                                                                                    :;.·;
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                                                                                                    Cj\:,
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                 FORD MOTOR COMPANY and                                                            -==      q
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                 RAY PRICE MOTORS, INC.,                                                           :~(          N
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                                                                                                   c.~ ~ . ~    u
                                  Defendants                                     No. 2011-CIV-60~0{:
                                                                                                                U1

                                                  PA.R.A.P. 1925(a) OPINION

                         On Januaty 9, 2015, we denied Defendant Ford Motor Company's Post-Trial Motion

                requesting a JNOV and, alternatively, a new trial. That Motion concerned a litany of claimed errors

                arising from a products liability case that ended on August 21, 2014 with a jury verdict against Ford

                and in favor of Plaintiffs John and Rosetta Cancelleri in the amount of $5,940,705.86. That same

                day, we granted the Cancelleris' Motion for Delay Damages and molded the award to $6,291,796.99.

                \Y/e also referred the Cancelleris' Motion for Taxable Costs to the Lackawanna County Court of

                Judicial Records for her consideration in accordance with Lacka. Co. R.C.P. 275.

                         Having received Ford's Notice of Appeal on February 5, 2015 and its Concise Statement of

                Matters Complained of on Appeal on February 26, 2015, we write now pursuant to Pa.R.A.P.

                1925(a). Because the reasons for the Order that Ford now appeals are set forth in our Memorandum

                and Order Denying Defendant Ford's Post-Trial Motion entered on January 9, 2015, we will not

                revisit the issues here.
                                                                                      /)


                                                                        /~~ •. -'.. E (OURT
                                                                  ·~1-.
                                                                   '/
                                                                                 ~                                    ) J.
                                                                         J~)ies A. Gibbons
                                                                         ~-/
                                                                                     Circulated 12/07/2015 09:49 AM




cc:                 IP',ittm notice ofthe miry oftheforegoi,,gOrder has beet: provided to each parry p111111a11t
                    to Pa.RC.P. 236(a) and (d) fry e-111ai!iJ1gtime-stamped copies to:



For Plaintiffs:     Bruce S. Zero, Esq., bzero@powell-law.com
                    James F. Mundy, Esq., jfmundy52@gmail.com

                    Powell Law
                    527 Linden Street
                    Scranton, PA 18503


For Defendants:     William J. Conroy, Esq., wconroy@campbell-trial-lawyers.com
                    Tiffany 1'1. Alexander, Esq., talexander@catnpbell-trial-lawyers.com
                    Emily J. Rogers, Esq., erogers@campbell-trial-lawyers.co1n
                    Katherine A. Wang, Esq., kwang@campbell-trial-la,vyers.com

                    Campbell Campbell Edwards & Conroy, P.C.
                    1205 Westlakes Drive, Suite 330
                    Berwyn, PA 19312


Superior Court of
Pennsylvania:       601 Commonwealth Avenue, Harrisburg, PA 17120
