                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-1999

Wilson v. Vermont Castings Inc
Precedential or Non-Precedential:

Docket 97-7530




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Recommended Citation
"Wilson v. Vermont Castings Inc" (1999). 1999 Decisions. Paper 62.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/62


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Filed March 15, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7530

ANNE K. WILSON; OLIVER J. LARMI,

       Appellants

v.

VERMONT CASTINGS, INC.; VCI ACQUISITION CO.;
PACIFICORP

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 93-cv-01724)
(District Judge: James F. McClure, Jr.)

ARGUED: October 27, 1998

BEFORE: STAPLETON, LEWIS and MAGILL,*
Circuit Judges

(Opinion Filed: March 15, 1999)

       Howard K. Goldstein, Esq. (Argued)
       Andrew S. Kessler, Esq.
       Goldstein & Kessler
       1616 Walnut Street
       Suite 918
       Philadelphia, PA 19103
       Counsel for Appellants
_________________________________________________________________

*Honorable Frank Magill, Senior United States Circuit Judge for the
Eighth Circuit Court of Appeals, sitting by designation.
       Janine M. Torda, Esq. (Argued)
       Patrick C. Carey, Esq.
       Fine, Wyatt & Carey
       425 Spruce Street
       P.O. Box 590
       Scranton, PA 18501-0590
       Counsel for Appellees

       Hugh F. Young, Jr.
       Product Liability Advisory Council,
        Inc.
       1850 Centennial Park Drive
       Suite 510
       Reston, VA 22091
       Counsel for Amicus Appellee

OPINION OF THE COURT

MAGILL, Senior Circuit Judge.

Anne K. Wilson and her husband sued Vermont
Castings, Inc. (Vermont Castings) and others after she was
seriously burned and disfigured while operating a Vermont
Castings woodburning stove. After a jury trial based on
strict products liability, the jury returned a verdict for
Vermont Castings. Wilson filed a motion for a new trial
claiming (1) the jurors were exposed to extraneous
information that prejudiced Wilson, and (2) Vermont
Castings improperly argued that she was negligent in
operating the stove. The district court denied her motion
and Wilson now appeals. We affirm.

I.

Anne Wilson owned a woodburning stove manufactured
by Vermont Castings. While using this stove on November
16, 1991, Wilson left a side door on the stove open to help
get the fire started. As she stood in front of the stove to
warm herself, her dress caught on fire, resulting in serious
burns and the loss of her fingers on her left hand.

Wilson sued Vermont Castings,1 claiming it was strictly
_________________________________________________________________

1. Wilson also sued Pacificorp, a west coast utility company, and VCI
Acquisition Co. VCI was dismissed as a party defendant pursuant to

                                2
liable for her injuries. She claimed the stove was defective
because (1) users had to keep the door slightly ajar to keep
the fire going, and (2) there was no warning on the stove to
tell users to keep the door shut. Before trial, Vermont
Castings moved in limine to exclude any evidence of the
existence or contents of the stove owner's manual. The
district court granted the motion on the ground that Wilson
had never read or seen the manual.

During the trial, Wilson's counsel examined Wilson on
the events leading up to her being burned. The evidence
elicited on direct examination was that she started a fire
while leaving the door open, that she stood with her back
to the stove to warm her back, and that her left leg was
either touching the stove apron or was relatively close to
the apron. She testified that her dress was six to eight
inches below her knee. After a minute or two in this
position, she noticed her dress was on fire. Vermont
Castings cross-examined Wilson on these facts.

After a thirteen-day jury trial, the jury returned a verdict
for Vermont Castings. Although the jury found that the
stove was defective,2 it found that the defect was not a
substantial factor in causing Wilson's injuries.

After trial, Wilson's lawyer, Andrew Kessler, spoke to
Juror #9, Penelope Merrill. Merrill told Kessler that another
juror owned a Vermont Castings stove. The juror with the
stove told the other jurors of her personal experience with
the stove, including that she had to leave the door open to
start a fire. She told the jurors that the stove came with a
manual, and that she had read the manual during the trial
to see if there were any warnings. She also informed them
of the content of the warnings.3 The other jurors then asked
this juror whether, knowing what she now knew from the
trial and from her review of the manual, she would
_________________________________________________________________

stipulation of the parties. For purposes of simplicity, we will refer only
to
Vermont Castings when referring to the Defendants.

2. It is not clear from the record which alleged defect(s) the jury found
existed.

3. There is no evidence in the record as to what these warnings stated.

                                3
continue to operate the stove with the door open. The juror
indicated that she would not modify her behavior even if
there were a warning on the stove. See Appellant's App. at
176-77 (Kessler Aff.).

Upon learning this information, Wilson filed a motion for
a new trial. She claimed, inter alia, that (1) the jury's
verdict was tainted by the information about the stove
owner's manual, and (2) during Wilson's cross-examination
and Vermont Castings's closing argument, Vermont
Castings impermissibly argued that Wilson was negligent in
operating the stove. The district court denied the motion. It
found no prejudice from the juror's conduct, and found
that Vermont Castings's arguments were permissible under
Pennsylvania strict products liability law. See Wilson v.
Vermont Castings, Inc., 977 F. Supp. 691, 695, 697-99
(M.D. Pa. 1997).

II.

Wilson claims the district court erred in not granting her
motion for a new trial based on alleged juror misconduct
and alleged improper arguments made by Vermont
Castings. This Court reviews a trial court's denial of a
motion for a new trial, as well as its investigation of juror
misconduct, for an abuse of discretion. See United States v.
Bertoli, 40 F.3d 1384, 1392-93 (3d Cir. 1994).

A.

Wilson claims she was prejudiced when one juror
informed the others of the existence and contents of a
Vermont Castings stove owner's manual and gave her
opinion as to how it would affect her own behavior. We
disagree.

We begin with the general rule that a juror may not
impeach her own verdict. See Virgin Islands v. Gereau, 523
F.2d 140, 148 (3d Cir. 1975); Fed. R. Evid. 606(b). The
purpose of this rule is to promote finality of verdicts,
encourage free deliberations among jurors, and maintain
the integrity of the jury as a judicial decision-making body.
Gereau, 523 F.2d at 148.

                               4
A court may inquire into the verdict, however, if
"extraneous prejudicial information was improperly brought
to the jury's attention or [if] any outside influence was
improperly brought to bear upon any juror." Fed. R. Evid.
606(b). The scope of the court's inquiry under Rule 606(b)
is limited: the court may inquire only into the existence of
the extraneous information. Once the existence of
extraneous information has been established, the court
may not inquire into the subjective effect of such
information on the particular jurors. See, e.g., United States
v. Williams-Davis, 90 F.3d 490, 496 (D.C. Cir. 1996);
Gereau, 523 F.2d at 149; see also United States v. Jonnet,
762 F.2d 16, 20 (3d Cir. 1985) (in assessing effect of
inadmissible evidence brought into jury room, court may
not inquire into jury's deliberative process). Instead, the
court must make an objective assessment of how the
information would affect the hypothetical average juror. See
Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir. 1993). Even
where there is evidence of juror misconduct, "the verdict
will stand unless the party has been prejudiced by the
misconduct." Gereau, 523 F.2d at 153-54.

In this case, Wilson alleges two types of jury misconduct.
First, she claims that one juror improperly consulted her
own Vermont Castings stove owner's manual during the
trial and reported its contents to the jury. Second, she
alleges that the same juror advised the other jurors that
she also found it necessary to leave her own Vermont
Castings stove's door open, and that she intended to
continue this practice even if there was a warning, and
even in light of what she had learned at trial.

With respect to Wilson's first claim, the district court
determined that the manual constituted "extraneous
information" but concluded that its consideration did not
prejudice Wilson. We agree. Because there was no evidence
in the record that Wilson ever read her stove owner's
manual, this information was not relevant to causation.
Thus, the existence of warnings in the juror's manual
related solely to the issue of defect. Because Wilson
prevailed on the issue of defect, she was not prejudiced by
this extraneous information.

                                5
We also agree with the district court's conclusion that the
juror's statements regarding her own conduct did not
warrant a new trial. The district court determined that this
information was not "extraneous information" and therefore
Rule 606(b) precluded further inquiry. Her statement was
an opinion as to the effect of the extraneous information
(the contents of the manual) on her views.4 If the district
court had considered her statement, it would have been the
equivalent of inquiring into the effect of extraneous
information on a juror, which is prohibited by Rule 606(b).
Cf. Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994)
(affidavit inadmissible to the extent it recounted how juror's
disclosure of personal knowledge about relevant facts in
case affected the thinking and voting of individual jurors or
the deliberations of the jury as a whole). A court may make
only an objective assessment of the effect of the extraneous
information on the hypothetical average juror. See id.;
Waldorf, 3 F.3d at 710. As we have already concluded, the
extraneous information was relevant only to defect, and
thus could not have affected an average juror in a way that
would have prejudiced Wilson.

Because the extraneous information could not have
prejudiced Wilson, the district court did not err in refusing
to grant a new trial on this ground.5
_________________________________________________________________

4. It is important to note that her statement was also influenced by the
evidence adduced at trial as well as her own experience as an owner of
a Vermont Castings woodburning stove. In this regard, her statement is
similar to the permissible instance of a juror bringing her own life
experience into a jury room, and thus is not a basis for impeaching the
verdict. See Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994) (juror's
opinion that there were no open businesses in location at issue in case
not prejudicial; opinion was "part of the fund of ordinary experience that
jurors may bring to the jury room and may rely upon . . . in the same
way that another juror may know that Times Square is busy all night or
that there are doormen along stretches of Park Avenue"); Gereau, 523
F.2d at 151 (verdict not invalid "merely because the jurors' generalized
knowledge about the parties, or some other aspect of the case, is an
ingredient of the decision. . . . [I]t is not necessary that jurors be
totally
ignorant about a case." (quotations omitted)).

5. Nor did the court err in refusing to hold a hearing on the claim of
juror misconduct. A judge's decision to hold a hearing to investigate

                               6
B.

Wilson next claims that, during her cross-examination,
Vermont Castings asked questions which implied she
negligently operated the stove. Wilson also claims that
Vermont Castings's closing argument implied she was
negligent. She claims this was a violation of Pennsylvania
law, which prohibits a defendant from arguing in a strict
products liability suit that the plaintiff was negligent. See
Childers v. Power Line Equip. Rentals, Inc., 681 A.2d 201,
207 (Pa. Super. Ct. 1996).

Wilson has failed to preserve this claim for appeal
because Wilson's counsel did not object to Vermont
Castings's cross-examination of Wilson or its closing
argument.6 As this Court has previously noted, "a party
who fails to object to errors at trial waives the right to
complain about them following trial." Waldorf v. Shuta, 142
F.3d 601, 629 (3d Cir. 1998); see also Grace v. Mauser-
Werke GMBH, 700 F. Supp. 1383, 1388 (E.D. Pa. 1988)
(objections not raised at trial are waived).7
_________________________________________________________________

alleged juror misconduct is reviewed for an abuse of discretion. See
United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995). Because the
contents of the manual related solely to defect, and because the court
could not inquire into the subjective effect of the manual on the jury, a
hearing would have been futile. See id. at 1484.

6. We also note that Wilson did not object to the jury instruction that
stated that evidence of Wilson's conduct, although not relevant to defect,
was relevant to causation. Nor did Wilson request her own instruction
regarding the relevance of her conduct.

7. Before trial, Wilson's counsel filed a motion in limine to exclude
evidence that Wilson negligently operated the stove. The district court
denied the motion to the extent it sought to bar Vermont Castings "from
using evidence of [Wilson's] conduct to argue that her conduct, not the
alleged defect caused her clothing to catchfire." Appellant's App. at 36
(order granting in part and denying in part parties' motions in limine).
The court stated, however, that Vermont Castings would not be
permitted to characterize Wilson's conduct as negligent or argue that
Wilson's errors absolved them of liability. See id. Because Wilson
prevailed on the motion in limine to limit Vermont Castings's arguments,
her counsel had an obligation to renew his objection once he thought
Vermont Castings violated this ruling. Cf. Virgin Islands v. Joseph, 964

                               7
This Court has recognized an exception to waiver when
"counsel fail[s] to object to a fundamental and highly
prejudicial error resulting in a miscarriage of justice." Fleck
v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116 (3d Cir. 1992).
Upon reviewing the record, we find no miscarriage of
justice.

Under Pennsylvania law, causation is an essential
element of a strict products liability claim. See Charlton v.
Toyota Indus. Equip., 714 A.2d 1043, 1046 (Pa. Super. Ct.
1998). Although a defendant cannot argue that a plaintiff
was negligent, see Childers, 681 A.2d at 207, a defendant
can argue that the plaintiff 's conduct, not the alleged
defect, was the sole cause of her injuries. See Charlton, 714
A.2d at 1047; Madonna v. Harley Davidson, Inc., 708 A.2d
507, 508 (Pa. Super. Ct. 1998).

In this case, Wilson's own counsel elicited the evidence
surrounding Wilson's actions to demonstrate what occurred
on that day. Vermont Castings merely cross-examined her
on these events. Nor did Vermont Castings argue that
Wilson was negligent; rather, it argued that Wilson's
conduct, not the alleged defect, was the sole cause of the
accident. Thus, Vermont Castings's questions and
arguments based on this evidence were consistent with
Pennsylvania law and did not result in a miscarriage of
justice.

III.

We conclude that the juror's misconduct in this case did
not prejudice Wilson. We also conclude that Wilson failed to
preserve for appeal her argument that Vermont Castings
_________________________________________________________________

F.2d 1380, 1384-85 & n.3 (3d Cir. 1992) (defendant preserved issue for
appeal when motion in limine denied and he failed to object at trial;
contrasting situation where a defendant prevails on motion in limine and
fails to object at trial when that ruling is violated) (citing United
States
v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987)); see also Kostelec v. State
Farm Fire & Cas. Co., 64 F.3d 1220, 1229 (8th Cir. 1995) (" `An objection
is required to preserve error when an opponent, or the court itself, [is
claimed to have] violate[d] a motion in limine that was granted.' ")
(quoting Roenigk, 810 F.2d at 815).

                                8
impermissibly accused Wilson of acting negligently. Even if
she had preserved her argument, we conclude that Vermont
Castings's arguments were permissible under Pennsylvania
law. We therefore affirm the decision of the district court.

A True Copy:
Teste:

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

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