                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-1997

Parks v. Alliedsignal Inc
Precedential or Non-Precedential:

Docket 96-3256




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Recommended Citation
"Parks v. Alliedsignal Inc" (1997). 1997 Decisions. Paper 104.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/104


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Filed May 14, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3256

EDITH J. PARKS, Individually, Personal Representative of
the Estate of Leslie E. Parks, Deceased and as parent and
next friend of Kori J. Parks

v.

ALLIEDSIGNAL, INC.; THE WARNER & SWASEY
COMPANY; THE GRADALL COMPANY

EDITH J. PARKS, Individually, As Personal Representative
of the Estate of Leslie E. Parks, Deceased, and as parent
and next friend of Kori J. Parks,

Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 92-cv-02105)

Argued: February 11, 1997

BEFORE: GREENBERG, COWEN and McKEE,
Circuit Judges

(Filed May 14, 1997)
L. Palmer Foret, Esq. (argued)
Foret and Thompson
1275 K Street, N.W.
Suite 1101
Washington, D.C. 20005

Counsel for Appellant
Edith J. Parks

Michael D. Heintzman, Esq. (argued)
Kenneth F. Klanica
Heintzman, Warren & Weis
707 Grant Tower
Gulf Tower, 35th Floor
Pittsburgh, PA 15219

Counsel for Appellees
AlliedSignal, Inc.
The Gradall Company

OPINION OF THE COURT

COWEN, Circuit Judge.

Edith J. Parks (Mrs. Parks) appeals from the April 1,
1996, order of the United States District Court for the
Western District of Pennsylvania denying her a new trial in
a strict products liability tort action. She asserts that the
district court erred in instructing the jury as to causation
and contributory negligence, and in failing to take sufficient
steps to ensure that defendants complied with discovery
orders. We agree and will reverse and remand for a new
trial.

I.

Mrs. Parks alleges that defective visibility features on
AlliedSignal's Gradall G-600 excavating machine caused
her husband's death. Leslie Parks (Mr. Parks) was a general
laborer for Allegheny Sand, Inc. Mrs. Parks is his widow.
Mr. Parks was killed while working with the Gradall
machine, an excavator with two separate cabs that is used

                    2
for breaking boulders into smaller pieces. One cab is in the
front, as in an ordinary truck, and is occupied by the driver
of the vehicle. The second cab, at the rear, is attached to
and controls the excavating arm.

The second cab, the arm, and the arm's counterweight
are all in one line. The counterweight keeps the machine
from tipping when the arm is used off-center. When the
second cab operator moves the arm as if tracing a circle,
the machine's entire arm (including the counterweight)
swings around a central point. The operator sits in the
middle, swinging along with the arm. The operator's seat
faces the excavating arm, and the counterweight swings out
behind his back. The cab has no mirrors, so the operator
has no view to the area behind him and only limited side
visibility while operating the controls.

On the morning of the accident, Mr. Parks and two co-
workers, at the direction of their supervisor, endeavored to
break some blocks of carbon. The machine's regular shovel
had been replaced by Mr. Parks' employer with a chipper
attachment used for carbon-breaking. From outside the
machine, Mr. Parks directed his co-workers, who occupied
the two cabs and controlled the truck. Alan McMunn,
sitting in the front cab, drove the machine to the back of a
shed where the carbon was stored. William Kline, in the
second cab, operated the excavator arm and boom.

Mr. Parks walked to the back of the shed. As McMunn
pulled the machine into the shed, Mr. Parks directed him.
Mr. Parks told Kline to swing the boom to the left. The
instruction sent the excavating arm's counterweight on a
collision course with Mr. Parks. Mr. Parks was pressed
between the counterweight and the wall, causing his death.

Mrs. Parks sought to hold AlliedSignal liable on the
theory that it failed to install a rear-view mirror or
alternative safety device on the Gradall machine. She
alleged that this omission made the product "unreasonably
dangerous" because it caused the vision of the second cab's
operator to be needlessly circumscribed. Over objections by
Mrs. Parks, the district court admitted evidence concerning
Mr. Parks' conduct immediately prior to his death. The
district court refused to charge the jury that Mr. Parks'

                    3
conduct could be viewed as a legal cause of his death only
if it were unforeseeable.

The jury found that the product was indeed defective, but
nevertheless returned a verdict for the manufacturer. The
verdict was presumably based on the finding of the jury
that the defect was not "a substantial factor" in causing the
death. Parks' motion for a new trial was denied. Mrs. Parks
argues that the district court erred when it failed to charge
the jury that if Mr. Parks' conduct were foreseeable, such
conduct could not have broken any chain of causation
linking the alleged defect to his death.

In addition, during the trial Mrs. Parks sought to compel
disclosure of information that she had requested during
pre-trial discovery, but which allegedly had not been
divulged. That information concerned other accidents
involving similar machines and the placement of mirrors on
those machines. The district court granted the motion to
compel,1 but the record on appeal raises serious questions
as to whether defendants properly complied with discovery
orders.

II.

The district court exercised jurisdiction pursuant to 28
U.S.C. § 1332 (1993), diversity of citizenship. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291
(1993). Concerning the propriety of the charge delivered to
the jury, our standard of review is plenary, as we are
reviewing whether the district court erred in formulating a
legal precept. See Hook v. Ernst & Young, 28 F.3d 366, 370
(3d Cir. 1994)(citing Griffiths v. CIGNA Corp., 988 F.2d 457,
462 (3d Cir. 1993)(citing Rotondo v. Keene Corp, 956 F.2d
436, 438 (3d Cir. 1992))). We review the supervision of
discovery by the district court for abuse of discretion. See
United States v. 27.93 Acres of Land, 924 F.2d 506, 510 (3d
Cir. 1991); Marroquin-Manriquez v. INS, 699 F.2d 129, 134
(3d Cir. 1983).
_________________________________________________________________

1. App. at 528-531.

                      4
III.

We initially review two key questions raised on this
appeal. First, what must a plaintiff show in order to recover
in a strict products liability tort action under Pennsylvania
law, which incorporates section 402A of the Restatement
(Second) of Torts? Second, having admitted evidence of a
decedent's conduct immediately before an accident, what
must a district court do to fulfill its obligation to explain to
a jury the appropriate use of such information?

A. Section 402A

Section 402A, which was adopted by the Supreme Court
of Pennsylvania in Webb v. Zern, 220 A.2d 853, 854 (Pa.
1966), "imposes strict liability for injuries caused by
defective product design."2 Pacheco v. Coats Co., Inc., 26
F.3d 418, 421 (3d Cir. 1994)(citing Lewis v. Coffing Hoist
Div., Duff-Norton Co., 528 A.2d 590, 592 (Pa. 1987)). See
also Phillips v. A-Best Products Co., 665 A.2d 1167, 1170
(Pa. 1995)(acknowledging Pennsylvania's adoption of
section 402A). In the words of the Pennsylvania Supreme
Court, "Section 402A . . . requires only proof that a product
was sold in a defective condition unreasonably dangerous
_________________________________________________________________

2. Section 402A provides:

(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 condition in which it is sold.

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

 (a) the seller has 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 contractual relations with the seller.

RESTATEMENT (SECOND) OF TORTS § 402A (1965).

                     5
to the user or consumer, and that the defect was the
proximate cause of plaintiff's injuries." Walton v. Avco
Corp., 610 A.2d 454, 458 (Pa. 1992). "Manufacturers are
held as guarantors upon a finding of defect and causation."
Id. at 462.

In order to prevail in a section 402A action, the plaintiff
must show that a product is "unreasonably dangerous to
intended users for its intended use." Pacheco, 26 F.3d at
422 (emphasis omitted). In interpreting the phrase
"intended use", we have held that "the intended use of a
product `includes all those [uses] which are reasonably
foreseeable to the seller.' " Id. (quoting Sheldon v. West
Bend Equip. Corp., 718 F.2d 603, 608 (3d Cir.
1983)(alteration added)). Under the strict liability test,
therefore, a defendant is liable for causing injury to a
person who was behaving in a foreseeable manner. This
principle is reflected in the jury instruction recommended
by Pennsylvania's Committee for Proposed Standard Jury
Instructions, which the Pennsylvania Supreme Court
endorsed in Azzarello v. Black Bros. Co., Inc.:

The product 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. If you find that the product, at the time
it left the defendant'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, then the product was defective, and the
defendant is liable for all harm caused by such defect.

391 A.2d 1020, 1027 n.12 (Pa. 1978). See also Lewis v.
Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590, 593 (Pa.
1987).

1. Foreseeability

Section 402A liability cannot be found if, at the time of
the accident, the product was being used in an
unforeseeable manner. The requirement of foreseeability
therefore enables strict liability to exist without
transforming manufacturers into absolute insurers of their
products. The importance of this rule has been repeatedly

                    6
demonstrated in the courts. In Sheldon, 718 F.2d at 608,
we held that "the district court[ ][should not] fail[ ] to
instruct the jury to the effect that the intended use of a
product includes any use which is reasonably foreseeable
to the seller." See also Schell v. AMF, Inc., 567 F.2d 1259,
1263 (3d Cir. 1977)(quoting Kuisis v. Baldwin-Lima-
Hamilton Corp., 319 A.2d 914, 921 n.13 (Pa.
1974))("whether a particular use of a product is abnormal
depends on whether the use was reasonably foreseeable by
the seller."). In Eck v. Powermatic Houdaille, 527 A.2d 1012,
1019 (Pa. Super. 1987), the Superior Court of Pennsylvania
reversed a trial court on the grounds that "the established
rule of law . . . requires consideration of `foreseeability' " in
the jury instruction in a strict products liability action.

The concept of foreseeability is relevant to strict products
liability cases for the purpose of determining whether the
use that was made of a product at the time of the accident
was one that the manufacturer could have reasonably
anticipated. See Schell, 567 F.2d at 1263. In order to
prevail in a section 402A products liability action, then, the
plaintiff must show that: (1) a product defect (2) caused a
harm (3) while the product was being used in a foreseeable
manner.

As the Pennsylvania Superior Court held in Sweitzer v.
Dempster Sys., 539 A.2d 880, 882 (Pa. Super. 1988)(citing
Salvador v. Atlantic Steel Boiler Co., 319 A.2d 903, 907 (Pa.
1974)(emphasis added)):

The role of foreseeability in a product liability case is
consistent with the broad and sound social policy
underlying § 402A; that is, as between an innocent
user of a product and a manufacturer or seller who is
engaged in the business of manufacturing or selling a
product, risk of loss for injuries resulting from the use
of a defective product shall be borne by the
manufacturer and/or seller.

Of course, a defect may produce manufacturer liability in a
given case only when the harm caused is of the type
threatened by the defect.

                    7
2. "Substantial Factor" Causation as it Relates to
Foreseeability

In determining how the elements of foreseeability and
causation may properly be demonstrated in the instant
case, we are again guided by Pennsylvania law. When
addressing causation, Pennsylvania has rejected the "but
for" test and adopted the "substantial factor" test as
embodied in the Restatement (Second) of Torts § 431, which
provides:

The actor's negligent conduct is a legal cause of harm
to another if: (a) his conduct is a substantial factor in
bringing about the harm, and (b) there is no rule of law
relieving the actor from liability because of the manner
in which his negligence resulted in the harm.

See Trude v. Martin, 660 A.2d 626, 632 (Pa. Super.
1995)(citing Whitner v. Von Hintz, 263 A.2d 889 (Pa. 1970)).

The courts of other states following the Restatement have
defined a "substantial factor" as one that is not "merely
negligible." ACandS v. Asner, 686 A.2d 250, 260 (Md.
1996). "Stated differently, `[l]iability attaches not only to the
dominating cause but also to any cause which constitutes
at any event a substantial factor in bringing about the
injury.' " Dawson v. Bunker Hill Plaza Assocs., 673 A.2d
847, 853 (N.J. Super. App. Div. 1996)(quoting Peer v. City
of Newark, 176 A.2d 249 (N.J. Super. App. Div.
1961)(emphasis added)). The substantial factor test has
replaced the "but for" causation test in strict liability
contexts precisely because in design defect cases it is
typically a matter of speculation whether the presence of a
safety device would, in a given instance, have actually
prevented a harm. See Yukon Equip., Inc. v. Gordon, 660
P.2d 428, 433 (Alaska 1983)(stating that "but for" causation
jury instruction was improper in manufacturer's design
defect case), overruled on other grounds, Williford v. L.J.
Carr Invs., Inc., 783 P.2d 235 (Alaska 1989).

Our review of Pennsylvania law dictates that a plaintiff's
conduct may be introduced to undermine a plaintiff's claim
that the defect caused his accident only insofar as the
plaintiff's conduct was unforeseeable to the defendant,
even where the plaintiff played some part in setting the

                     8
accident in motion. Evidence concerning a decedent's
possible role in bringing about his or her own death is
admissible only to support defendant's claim that the
conduct was so "extraordinary" or "[un]foreseeable" that it
would be unjust to hold the defendant liable for the harm.
See. e.g., Holloway v. J.B. Sys., Ltd., 609 F.2d 1069, 1074
(3d Cir. 1979). When courts admit such testimony, they
must elucidate the limited permissible uses of that
evidence, as it is highly susceptible to misinterpretation by
the jury.

In determining causation, therefore, the task of the jury
is not simply to determine whether the plaintiff played a
part in causing the accident. Rather, the threshold question
is whether the plaintiff's actions were foreseeable. As noted
above, the manufacturer is responsible for making the
product safe for all foreseeable uses. Decorative Precast
Stone Erectors, Inc. v. Bucyrus-Erie Co., 493 F. Supp. 555,
557 (W.D. Pa. 1980), aff'd, 642 F.2d 441 (3d Cir. 1981),
informs us that under Pennsylvania products liability law,
if both a manufacturer's defect and a plaintiff's conduct are
found to be proximate causes, the plaintiff will recover
unless the defendant meets the burden of proving that
plaintiff's conduct was so unforeseeable as to constitute a
superseding cause. See infra, Sec. III.A.3. If foreseeable, the
jury must find for the plaintiff unless it finds that the defect
did not play even a substantial, or more than negligible,
role in causing the plaintiff's injury. In Schell, 567 F.2d at
1263 (citing Barkewitch v. Billinger, 247 A.2d 603, 605)(Pa.
1968)), we explained that recovery is allowed where the
absence of a safety device caused an injury of the type that
could be expected from the foreseeable use of the product.3
_________________________________________________________________

3. The dissent writes that

The result the majority reaches does not take into account the
distinction in Pennsylvania law between treatment of a plaintiff's
negligence which is the sole cause of the injury and a plaintiff's
negligence which combines with the defect in the product to cause
the injury. Negligence of the second kind could defeat the claim only
if it is . . . unforeseeable.

Dissent at 29. The instant case is precisely of the second type: the jury
explicitly answered yes to the question, "Was the Gradall excavator

                    9
The element of causation, while required, is not the
primary focus of section 402A cases. Causation may be
shown by process of elimination or circumstantial evidence.
In cases dealing with product malfunction, for instance,
Pennsylvania appellate courts have consistently reversed
trial courts for not sending to the jury cases in which
causation had not been directly demonstrated. See, e.g.,
Ducko v. Chrysler Motors Corp., 639 A.2d 1204 (Pa. Super.
1994); Agostino v. Rockwell Mfg. Corp., 345 A.2d 735 (Pa.
Super. 1975); Burchill v. Kearney-Nat'l Corp. v.
Pennsylvania, 468 F.2d 384 (3d Cir. 1972). Similarly, in
MacDougall v. Ford Motor Co., 257 A.2d 676, 680 (Pa.
Super. 1969) overruled on other grounds, REM Coal Co. v.
Clark Equip. Co., 563 A.2d 128, 134 (Pa. Super. 1989),4 the
Pennsylvania Superior Court stated:

The evidentiary requirements of negligence law demand
proof that injury is proximately caused by a specific
defect in design or construction because liability hinges
upon whether the accident could have been avoided by
the exercise of reasonable care. In contrast, the
_________________________________________________________________

defective at the time it was manufactured and sold?" App. at 432. The
machine's defect was impaired visibility of precisely the area in which
the accident occurred. In accordance with the dissent's above
description, the manufacturer of the defective product in this case
should be held liable unless the plaintiff's actions were unforeseeable.
See also the criticism of Foley articulated in Dillinger, discussed infra in
this opinion at 14-16. The dissent points out that the jury responded
"no" to the question, "Was the defect in the excavator a substantial
factor in bringing about Mr. Parks' death?" Dissent at 32. But our
holding today is that the jury instructions did not properly illuminate,
inter alia, what constitutes a substantial factor in a strict products
liability action, so this question was not adequately explained to the jury.
Having found that the Gradall machine was defective, the jury could
have found that the defect was not a substantial factor in causing
plaintiff's injury only if it found that had the mirror been in place, the
driver would not have glanced into it before backing. Only in this sense
does causation remain a factor susceptible to dispute. As this is a strict
products liability action, the plaintiff's foreseeable actions remain
immaterial to the question of causation.

4. We note that the dissent does not address these cases.

                    10
concern of both section 402A and warranty law is with
the fitness of the product.

The de-emphasis of causation is a natural corollary of the
distinction between negligence and strict products liability.
In strict products liability, the focus is on whether the
product was sold in an unreasonably dangerous condition
for reasonably foreseeable uses. See Carpenter v. Koehring
Co., 391 F. Supp. 206, 210-211 (E.D. Pa. 1975), aff'd, 527
F.2d 644 (3d Cir. 1976). In negligence, by contrast, the
focus is on whether a duty of care was breached. See
Kuisis, 319 A.2d at 920. In either negligence or strict
products liability, proximate cause defines "such limits on
recovery as are economically and socially desirable." Klages
v. General Ordnance Equip. Corp., 367 A.2d 304, 313 (240
Pa. Super. 1976). In the products liability area,
Pennsylvania has determined that it is economically and
socially desirable to hold manufacturers liable for accidents
caused by their defective products, without introducing
negligence concepts of comparative fault that would weigh
the manufacturer's negligent conduct against that of the
injured product user. See Walton, 610 A.2d at 462. See also
infra, Sec. III.A.4.

3. Superseding or Intervening Cause

The test for what constitutes a superseding cause reflects
the de-emphasis of causation in strict products liability
litigation. Klages explains that a reasonably foreseeable
intervening act cannot "satisfy the requirements of a
superseding cause."5 367 A.2d at 313. In a section 402A
strict liability tort claim such as that in the instant case, "a
_________________________________________________________________

5. The RESTATEMENT (SECOND) OF TORTS § 440 defines superseding cause as
"an act of a third person or other force which by its intervention prevents
the actor from being liable for harm to another which by its antecedent
negligence is a substantial factor in bringing about." Superseding cause
(and the related intervening cause, defined in section 441) is a
comparative negligence concept, whereby an actor's liability is
diminished due to the injured party's own negligence. In order to be
compatible with strict products liability, the concept must be
substantially narrowed to eliminate any foreseeable conduct of the
injured party.

                   11
negligent intervening act, to relieve defendant of
accountability, must be . . . `so extraordinary as not to have
been reasonably foreseeable.' " Eshbach v. W.T. Grant's and
Co., 481 F.2d 940, 945 (3d Cir. 1973)(quoting Dorsey v.
Yoder Co., 331 F. Supp. 753, 764 (E.D. Pa. 1971)(quoting
Wilson v. American Chain and Cable Co., 364 F.3d 558, 562
(3d Cir. 1966))). Similarly, in Baker v. Outboard Marine
Corp., 595 F.2d 176, 182 (3d. Cir. 1979), we held that the
intervening negligence of a third party could serve as a
superseding cause of injuries to shield defendant
manufacturer from liability to plaintiff only if it were "so
extraordinary as not to have been reasonably foreseeable."
Id. at 182 (quoting Eshbach, 481 F.2d at 945). See also
Williford, 783 P.2d at 237 (act may constitute superseding
cause only if, in addition to being unforeseeable by
defendant, it was highly extraordinary).

In short, even if an intervening but foreseeable action is
responsible for the major share of a strict products liability
injury, that action cannot ordinarily be held to be the legal
cause of the injury. Instead, it is removed from the picture,
and liability attaches to the remaining causal actor or
actors. Here, if the possibility of a person standing in the
path of the Gradall is found to be foreseeable or ordinary,
Mr. Parks' actions cannot legally be viewed as disrupting or
otherwise playing a part in the causal chain that
culminated in his death.

4. Rejection of Comparative Fault

The above-described approaches to foreseeability,
causation, and superseding cause in Pennsylvania strict
products liability cases are compelled by Pennsylvania's
rejection of comparative fault. Of particular relevance to the
instant case, Walton explained that

[The Pennsylvania Supreme] Court has continually
fortified the theoretical dam between the notions of
negligence and strict "no fault" liability. It would serve
only to muddy the waters to introduce comparative fault
into an action based solely on strict liability.

610 A.2d at 462 (citations omitted)(emphasis added). It has
been noted by numerous courts that "[t]he Pennsylvania

                    12
Supreme Court, perhaps more than any other state
appellate court in the nation, has been emphatic in
divorcing negligence concepts from product-liability
doctrine." Kern v. Nissan Indus. Equip. Co., 801 F. Supp.
1438, 1440 (M.D. Pa. 1992)(quoting Conti v. Ford Motor Co.,
578 F. Supp. 1429, 1434 (E.D. Pa. 1983), rev'd on other
grounds, 743 F.2d 195 (3d Cir. 1984)).

The Pennsylvania Supreme Court recently explained its
reasons for not extending the defense of comparative
negligence to a strict products liability action:

Our position is not based solely on the problem of the
conceptual confusion that would ensue should
negligence and strict liability concepts be commingled,
although that concern is not negligible. Rather, we
think that the underlying purpose of strict product
liability is undermined by introducing negligence
concepts into it. Strict product liability is premised on
the concept of . . . liability for casting a defective
product into the stream of commerce.

 The deterrent effect of imposing strict product
liability standards would be weakened were we to allow
actions based upon it to be defeated, or recoveries
reduced by negligence concepts.

Kimco Dev. v. Michael D's Carpet Outlets, 637 A.2d 603,
606-607 (Pa. 1993)(emphasis added).

Similarly, in McCown v. Int'l Harvester Co., 342 A.2d 381
(Pa. 1975), the plaintiff, as here, was injured by an
industrial vehicle. According to the plaintiff, the machine's
design was defective and caused his injuries. The defendant
argued that plaintiff's contributory negligence should have
been considered either to reduce the plaintiff's permissible
recovery or as a defense to liability. The Pennsylvania
Supreme Court disagreed, explaining that it would be
unwise to "create a system of comparative assessment of
damages for 402A actions." Id. at 382.

Pennsylvania's wish to avoid "muddy[ing] the waters"
dictates that in discussing causation, the comparative fault
of the parties involved is immaterial. Rather, the focus is
again on whether the activity engaged in by the plaintiff

                    13
was foreseeable. If foreseeable, and the defect is found to
have been a cause of the injury, the plaintiff's actions
cannot preclude defendant liability. Any other approach
would require weighing negligence or lack of care, which
would inject comparative fault into strict products liability.

In Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir.
1992), which undertook an extensive survey of
Pennsylvania products liability law, the trial court's final
charge expressly permitted the jury to consider plaintiff's
alleged negligence when determining whether defendant's
product caused his injuries: "The defendant denies that it
is liable for plaintiff's injuries. Defendant contends that the
773 truck was not defectively designed, and that any
injuries sustained by plaintiff were caused by the acts of
plaintiff himself." 959 F.2d at 440. In Dillinger, we reversed,
disapproving this jury charge because we found that it
"effectively framed the issue as one of contributory
negligence . . . ." Id. at 440 n.18. The defendant "point[ed]
to a line of cases which suggest[ ] that, although evidence
of a plaintiff's contributory negligence is ordinarily
inadmissible, it is admissible to rebut the `causation' prong
of a products liability claim." Id. at 441.

We rejected the defendant's arguments and found the
line of cases cited to be "in some instances[irreconcilable]
with the Pennsylvania Supreme Court's declarations on this
subject." Id. at 441. We also distinguished that line of cases
from the case then before us, by explaining that in the
cases cited by the defendant, "the plaintiff's conduct [had]
actively contributed to the cause of the accident, [rather
than] merely [failing] to prevent the accident attributable to
the defect." Id. at 442. We reasoned in Dillinger that the
evidence of the plaintiff's conduct was especially
inadmissible when the conduct was "merely insufficient to
prevent the accident attributable to the defect." Id. In
Dillinger, therefore, we left open the question of whether a
different result would obtain where the plaintiff's conduct
had been more than "merely insufficient to prevent the
accident attributable to the defect." Id.

The argument of the defense in the instant case--that a
plaintiff's foreseeable conduct can break the causal chain
set in motion by a product defect--was championed in

                    14
Foley v. Clark Equip. Co., 523 A.2d 379 (Pa. Super. 1987).
But as we stated in Dillinger and reiterate today, we believe
that case is inconsistent with Pennsylvania strict products
liability law. Dillinger, 959 F.2d at 443. In Foley, the
Superior Court endorsed the admission of evidence of a
plaintiff's contributory negligence in a section 402A suit.
There, as here, the plaintiff was struck by an industrial
vehicle when the operator failed to notice him. The plaintiff
alleged that the manufacturer had defectively designed the
vehicle in that, inter alia, the driver's view was improperly
obstructed. The Superior court stated that "negligen[t]
conduct is admissible where it is relevant to establish
causation[,]" and plaintiff's allegedly negligent behavior is
admissible for this purpose. Foley, 523 A.2d at 393.
Nonetheless, we explained in Dillinger that

there is no meaningful way to reconcile the view that a
plaintiff's negligence of the type involved in Foley
should be admitted to undercut causation with the
Supreme Court's prohibition of the introduction of a
plaintiff's negligence to defeat liability. . . . In Foley,
the plaintiff did not observe the oncoming forklift and
did not move out of its way. Because the driver
similarly had not noticed the plaintiff, the driver
crashed into him. Although the plaintiff contended that
the design of the forklift . . . was defective because, in
part, . . . [of the] obstructed . . . view, the court
permitted the defendant to introduce evidence of the
plaintiff's inattention because the accident could have
been avoided if the plaintiff had not acted negligently.
. . . [T]here is no principled reason to prohibit evidence
of the plaintiff's negligence in McCown but permit
evidence of an almost identical character in Foley.

959 F.2d at 443-44. The fact that the plaintiff in Foley
could have moved out of the way does not mean that Foley
caused the accident, and that the driver (who also could
have moved out of the way) did not cause the accident.
Obstructed vision was a proximate cause of plaintiff's
injuries in Foley; no meaningful distinction can be made
between the operator's and the plaintiff's roles in causing
the accident.

                     15
In Dillinger, although we did not endorse as dispositive
the distinction between plaintiffs who "set [their] accident[s]
in motion" and those who merely fail to stop them, we
limited our holding to cases in which the plaintiff merely
failed to stop his injury from being caused by a product
defect. 959 F.2d at 444. This distinction is somewhat
artificial, as plaintiff's conduct will often be susceptible to
characterization in either category. But assuming that in
directing the operator to swing the boom, Mr. Parks "set the
accident in motion," we will now address the question of
the permissible uses of evidence of plaintiff's conduct
where such conduct has actively "set the accident in
motion." Id.

Based on the foregoing discussion of the permissible uses
of plaintiff's conduct evidence in section 402A actions, we
find that the evidence of Mr. Parks' actions preceding his
death were appropriate for the jury to consider only if they
decided that those actions were not reasonably foreseeable
or were otherwise extraordinary. In failing to put that test
to the jury, the district court gave the impression that the
jury's function was to assess the relative contributions of
Mr. Parks and the machine's defect in causing Mr. Parks'
death. As a matter of law, however, strict products liability
demands that a plaintiff's foreseeable actions can never
displace manufacturer liability when a product defect was
a substantial factor in causing the plaintiff's injury.

B. Jury Instructions

When reviewing the sufficiency of jury instructions, our
task is to determine whether the "instruction was capable
of confusing and thereby misleading the jury." Bennis v.
Gable, 823 F.2d 723, 727 (3d. Cir. 1987)(quoting United
States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d
Cir. 1984)). Defendants contend that the district court's
instructions were sufficient. But the several pages of
sometimes contradictory instructions nowhere state that
the jury must not consider the foreseeable or ordinary uses
of a product to be a legal cause of an accident, in the sense
that foreseeable actions cannot limit a defendant's liability.
The actions of Mr. Parks may be weighed in the causation
calculation only if the jury finds them to have been

                       16
unforeseeable or extraordinary. Omission of this
requirement is a clear violation of our holding in Sheldon,
718 F.2d at 608 ("On remand . . . the district court should
. . . charge the jury that the intended use of a product
includes all those [uses] which are reasonably foreseeable
to the seller.").

Furthermore, our holding in Baker demonstrates that
instructions that contain some characterizations of the law
that are accurate will nonetheless be unacceptably tainted
by the presence of other, misleading comments:

The district court stated in its opinion denying the new
trial motion that its instruction that there may be more
than one proximate cause, and that Outboard would
be liable if a defect [were] "[a] proximate cause,"
adequately informed the jury that it could find[the
defendant] to be negligent, and further find her
negligence to be . . . `a' proximate cause[,] was greatly
diminished [by other instructions]. . . . .[T]he case will
be remanded for a new trial.

Baker, 595 F.2d 176, 184 (citation omitted).

In Eshbach, we reversed the district court because it
failed to either "remove the question of [third-party]
negligence entirely from the case or, if it was to be
considered, to instruct the jury as to the limits of its
application." 481 F.2d at 945. Strict liability means that an
entity is liable for all accidents caused unless they are
extraordinary or unforeseeable, regardless of the level of
vigilance demonstrated by others.

In the present case, the district court's instructions to
the jury spread over several pages of the transcript, and the
summary of the instructions offered at the end misstated
the appropriate analysis. The district court accurately
stated,

if you find that a defect in a product was a substantial
factor in bringing about harm, the manufacturer
and/or seller of the product is responsible for that
harm even though you may have found that there were
other substantial factors as well as a defect in bringing
about the harm.

                    17
App. at 414-15. But the district court impermissibly
blurred the matter in summarizing the instructions:

 If you determine that the defendants manufactured
and sold the excavator lacking an element necessary to
make it safe for its intended use and that the lack of
this element or elements was a substantial factor in
bringing about the incident which resulted in Mr.
Parks' death, then you will find that the defendants are
liable to the plaintiff. Otherwise, you will find in favor
of the defendants. Likewise, your verdict will be for
defendants if you find that either the conduct of the
decedent's employer . . . was a legal cause of the
accident or if you find that the conduct of Mr. Parks
himself or the conduct of his co-workers was also a
legal cause of the accident and that the alleged defect
was not a legal cause of the accident.

 So, in order to find for the defendants, you must find
that the alleged defect was not the legal cause of the
accident.

App. at 418-19 (emphasis added). Here, in concluding, the
court instructed that the defendant will prevail if "you . . .
find . . . that the alleged defect was not the legal cause of
the accident." The use of "the" rather than "a" indicated
that the legal cause must be predominant, or greater than
all others, rather than one of several, of varying (albeit
"substantial") weights.

As noted above, the primary reason that the instruction
is fatally erroneous is not its particular wording but that it
failed to require the jury to analyze whether Mr. Parks'
actions were unforeseeable or extraordinary. If the jury
found that the actions were neither unforeseeable nor
extraordinary, it could not have found his actions to be "a
legal cause" of his injury. Yet in the above-quoted
instruction, the court indicated that Mr. Parks' conduct
could be a "legal cause of the accident" without explaining
that this was true only if the conduct were extraordinary or
unforeseeable.

The centrality of foreseeability to Pennsylvania strict
products liability law was recently reaffirmed in Childers v.
Power Line Equip. Rentals, Inc., 681 A.2d 201, 208-209 (Pa.

                     18
Super. 1996), which held that evidence of an injured party's
conduct was properly barred from a strict liability action
because the defendant had failed to demonstrate that the
injured party acted in an "unforeseeable," "reckless,"
"extraordinary," or "outrageous" manner. Here, having
admitted evidence of plaintiff's conduct, the district court is
obligated firmly to instruct the jury that a plaintiff's
comparative fault is no defense to defendant liability, and
should not be weighed against the manufacturer's alleged
defect as a potential cause of the injury.

IV.

We now shift our focus from the jury instructions at trial
to the discovery process. It appears that defendants did not
produce discovery information concerning other similar
accidents, of which there were at least five. Defendants
concede that all information on these five other accidents
came from the investigation conducted by plaintiff, and was
not disclosed by defendants in discovery. AlliedSignal
introduced specific information about these accidents only
at trial, when arguing that evidence of their occurrence
should be inadmissible. In addition, the record contains
credible evidence that defendants failed to reveal the
existence of safety mirrors on comparable machines,
including the Gradall 880-C.

These apparent discovery abuses did not become evident
until trial. While we make no definitive assessments as to
the propriety of defendants' actions, on retrial the district
court is directed to superintend with care and be confident
that defendants properly and adequately disclose materials
to which the plaintiff is rightfully entitled. Specifically,
discovery orders that the court entered in the original trial,
and which apparently were not heeded in full, shall be
zealously policed by the district court.

V.

For the reasons stated above, we will reverse the district
court's April 1, 1996, denial of appellants' motion for a new
trial and remand for a new trial.

                     19
McKEE, Circuit Judge, concurring:

I join Judge Cowen's opinion. However, I write separately
to state my understanding of what we hold today, and to
comment upon the problems I perceive in the approach
taken by our colleague, Judge Greenberg. In my view, that
approach opens the door that the Pennsylvania Supreme
Court closed in Azzarello v. Black Brothers, Co., 391 A.2d
1020 (Pa. 1978), and beckons comparative fault to reenter
discussions of strict liability. Any discussion of strict
liability must adhere to the policy considerations endemic
to § 402A of the Second Restatement of Torts. As we noted
in Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992)
in our discussion of Berkebile v. Brantly Helicopter Corp.,
337 A.2d 893 (1975):

The law of products liability developed in response to
changing societal concerns over the relationship
between the consumer and the seller of a product. The
increasing complexity of the manufacturing and
distributional process placed upon the injured plaintiff
a nearly impossible burden of proving negligence
where, for policy reasons, it was felt that a seller
should be responsible for injuries caused by defects in
his products.

959 F.2d at 435 (citation omitted).

Judge Greenberg reads our decision in Dillinger as
precluding "inject[ion]" of "negligence principles in strict
liability actions" only in those circumstances where the
plaintiff's conduct "exacerbated or failed to prevent an
injury caused by the defect." Dissent at 28. Judge
Greenberg also states that the law of Pennsylvania does not
preclude consideration of a plaintiff's conduct where that
"conduct . . . caused an accident independently of the
defect in the product." Dissent at 28. However, Judge
Greenberg over simplifies the range of causes that typically
lie behind an injury. In most cases (including those relied
upon by Judge Greenberg) a reasonable fact finder could
conclude that the injury resulted from a combination of
plaintiff's conduct and the challenged defect. Judge
Greenberg's analysis would seem to permit the use of
plaintiff's conduct in these cases. However, I think that

                    20
neither our previous decision in Dillinger nor our decision
today allows principles of contributory negligence to govern
a dispute merely because "plaintiff's conduct set the events
leading to the accident in motion" as Judge Greenberg
believes. Dissent at 28.

Judge Greenberg relies upon Bascelli v. Randy, Inc., 488
A.2d 1110 (Pa. Super. Ct. 1985), and Gallagher v. Ing, 532
A.2d 1179 (Pa. Super. Ct. 1987) and our discussion of them
in Dillinger to support his conclusion that we have barred
evidence of plaintiff's conduct only in situations where that
conduct exacerbates an injury caused by the defect, or
failed to prevent an injury caused by it, and not where the
conduct causes an injury independent of the defect.
Clearly, one can not be held liable in a strict liability action
unless the claimed defect actually caused the injury. In
other words, the defect must have been "a substantial
factor in bringing about the harm." Powell v. Drumheller,
653 A.2d 619, 622 (Pa. 1995), see dissent at 26. However,
plaintiff's conduct is not relevant to this inquiry simply
because such conduct may have also contributed to the
injury. Before plaintiff's conduct can be admitted it must
be viewed in context with the societal policies that lie
behind strict liability and that assist in determining
causation under Dillinger.

In Bascelli, the Pennsylvania Superior Court did hold
that evidence that the plaintiff had been driving a
motorcycle 100 miles per hour was relevant to establish
causation, and could not be excluded merely because it
also intended to show contributory negligence. 488 A.2d at
113. However, as we noted in Dillinger, Bascelli no longer
provides us with guidance. In deciding Bascelli, the
Pennsylvania Superior Court cited Greiner v.
Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir.
1976) which, as we noted in Dillinger, was decided prior to
Azzarello, supra, wherein the Pennsylvania Supreme Court
"significantly broadened the scope of liability under § 402A."
Dillinger, 959 F.2d at 442. In Dillinger we did state the
following:

Of more significance, the plaintiff's conduct in Bascelli
actively contributed to the cause of the accident, while
[plaintiff's] conduct in this case was merely insufficient

                     21
to prevent the accident attributable to the defect of the
[product]. Thus, here the evidence was compelling that
the defect which resulted in the hose damage, rather
than [plaintiff's] conduct, triggered the accident.

959 F.2d at 442.

That statement, however, is best understood when viewed
in context with the policy repercussions of ignoring conduct
which, though foreseeable, is so unreasonable as to not
justify finding the manufacturer liable even though the
manufacturer is deemed to be the "guarantor" of its
products.1 I submit that had Bascelli been exceeding the
speed limit by only 5 miles an hour rather than rocketing
through space at 100 miles per hour his conduct would not
have been relevant to determining if the alleged defect (as
opposed to his own behavior) was responsible for his loss of
control. However, his conduct was so outrageous that it
amounted to assumption of the risk, misuse of the product,
and highly reckless conduct. In Dillinger we hypothesized
that all three of those theories continue to be permissible
defenses in a § 402A proceeding. 959 F.2d at 445-46. I
believe that absent conduct which is so outrageous as to
fall into one of those three categories the policy
considerations that hold a manufacturer liable as a
guarantor of its product control. However, once the
plaintiff's conduct becomes so unreasonable and
extraordinary as to amount to either assumption of the
risk, misuse of the product, or highly reckless conduct, that
conduct becomes relevant to causation as society has no
interest in protecting such plaintiffs from the consequences
of that kind of irresponsibility. Moreover, it is unjust to
shift the cost of such injury from the person whose
outrageous conduct caused it (or contributed to it) to the
manufacturer who will in turn pass that cost on to
innocent consumers.
_________________________________________________________________

1. As we noted in Dillinger:

The [supplier] of a product is the guarantor of its safety. The
product must, therefore, 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].

959 F.2d at 436 (brackets in original).

                    22
This policy concern is written into the law of strict
liability through the mechanism of causation. Accordingly,
we observed in Dillinger:

[t]he. . . issue of causation is raised when the
plaintiff's action is so reckless that the plaintiff would
have been injured despite the curing of any alleged
defect, or is so extraordinary and unforeseeable as to
constitute a superseding clause.

959 F.2d at 446 (internal quotations omitted) (internal
citations omitted).

In Pennsylvania, products liability law "shift[s] the loss to
the party who can most easily bear it." Staymates v. ITT
Holub Industries, 527 A.2d 140, 143 (Pa. Super. Ct. 1987).
However, this general policy does not operate where it
would cause an inappropriate or unjust result. Gallagher v.
Ing, 532 A.2d 1179 (Pa. Super. Ct. 1987) (cited by Judge
Greenberg), is another example of this. There, the
administratrix of the deceased driver of an automobile sued
the manufacturer of the automobile alleging that a design
defect had caused the decedent driver to lose control in a
fatal car crash. The evidence that was produced at trial
established that, at the time of the accident, the driver had
a blood alcohol content of .18 percent. The jury was allowed
to consider that evidence as it tended to establish that the
decedent was "unfit to drive a vehicle safely," 532 A.2d at
1181, and that the intoxication; not the alleged defect,
caused the accident. The Pennsylvania Superior Court
noted that such evidence was appropriate, not because it
established intoxication per se, but because it established
intoxication to the extent of rendering the decedent unfit to
drive. The court noted that the defendant had produced
evidence that the decedent had been drinking scotch for a
period of approximately 1-1/2 hours before driving his car
home and that some witnesses had observed that he had
been "driving at a high rate of speed on a dark, winding
and hilly road approximately one mile from the scene of the
accident." Id. at 1182. The manufacturer had also produced
expert testimony as to the ability of someone with a blood
alcohol concentration of .18 percent to safely operate a car.
On appeal the court noted that with a blood alcohol level
that high,

                     23
virtually every person, adult or child. . . is markedly
impaired with respect to . . . judgment, the response
time, . . . the coordination. . . all of these things are
progressively and markedly impaired. . . forensic
toxicologists and everybody else says that this kind of
a blood alcohol level, a person's likelihood of being
involved in a fatal accident is over 20 times greater
than that of a sober person. . . He can still drive.. .
but not safely.

532 A.2d 1182-3. Accordingly, the evidence was properly
admitted to show that the decedent was "incapable of
driving safely and that this was the legal cause of his loss
of control of the vehicle he was driving." Id. at 1183.

Thus, Gallagher does not support Judge Greenberg's
position to the extent that might at first appear although he
correctly notes it as an example of a case where a plaintiff's
conduct did set the events leading to the accident in
motion. See dissent at 28. In theory, the conduct in
Gallagher would have set the events leading to the accident
in motion had the evidence shown marginal impairment or
that the driver had exceeded the speed limit by 5 miles per
hour. Yet, I do not believe that in those situations a jury
could consider plaintiff's conduct on the issue of causation
-- even if a manufacturer could show that had the plaintiff
not been exceeding the speed limit, or not been slightly
impaired, the particular defect would not have been
sufficient by itself to cause loss of control. Few among us
can honestly state that he or she has never exceeded a
posted speed limit. That eventuality is most certainly
foreseeable. Yet, that circumstance will not constitute an
"intervening cause" and therefore justify consideration of
plaintiff's conduct in a strict liability action unless that
conduct rises to such a level as to constitute assumption of
the risk, misuse of the product, or highly reckless conduct.
See Dillinger, supra. This is so even though plaintiff's
conduct "set the events leading to the accident in motion."
Thus, Judge Greenberg reads too much into the holding of
Gallagher. Moreover, the discussion in Gallagher focused
upon the reliability of the blood test, and the propriety of
admitting evidence of intoxication in view of its propensity
to generate bias. There is almost no discussion of the strict

                    24
liability and causation issue that we address here. The
court's entire discussion of strict liability is at the very end
of the opinion and is, in its entirety as follows:

Appellant also argues that the trial court erred in,. . .
(3) allowing appellee's counsel after ruling that
comparative negligence principles had no application,
to suggest to the jury that the defendant's negligence
was the sole cause of the accident. We have examined
these contentions carefully and conclude that they
have been adequately analyzed and properly decided by
the trial judge. Suffice it to say that appellant's
contentions are lacking in merit and do not warrant a
new trial.

532 A.2d at 1185.

In summary, I believe Judge Cowen correctly summarizes
the state of Pennsylvania law under § 402A of the
Restatement. Evidence of the decedent's actions in the
instant case is appropriate only if a jury determined that
such actions were "not reasonably foreseeable or were
otherwise extraordinary." Majority Op. at 16, (emphasis
added). I do not feel that Judge Greenberg's analysis allows
for any meaningful distinction between circumstances
where plaintiff's conduct becomes relevant to causation,
and those where it is precluded by policy considerations
that drive the doctrine of strict liability as enunciated by
the Pennsylvania courts. If the alleged defect was "a
substantial factor in bringing about the harm," absent
assumption of risk, misuse of product, or highly reckless
conduct, it is irrelevant whether plaintiff's conduct set the
events in motion or merely failed to prevent an injury, and
I do not read our decision in Dillinger to the contrary.

                     25
GREENBERG, Circuit Judge, dissenting.

Judge Cowen has written a thoughtful opinion in a
difficult field of law, but I am forced to dissent because I
interpret aspects of Pennsylvania products liability law
fundamentally differently. I first will explain my view of the
law and then explain my differences with the majority and
the consequences stemming therefrom.

I agree with much of the majority's analysis of
Pennsylvania law, including its discussion of the
Pennsylvania Supreme Court's strong resistance to the
inclusion of comparative fault principles in strict liability
actions. I emphasize, however, that the Pennsylvania courts
have been equally strong in maintaining the requirement
that the plaintiff in a strict liability action bear the burden
of showing both that the product was defective and that the
defect proximately caused the injuries in question. See
Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 898
(Pa. 1975) ("Neither can plaintiff recover by proving a defect
in the product absent proof of causation, as where plaintiff
sustains eye injury while not wearing defective safety
glasses."); Carrecter v. Colson Equip. Co., 499 A.2d 326, 329
(Pa. Super. Ct. 1985) (plaintiff must show defect was a
"substantial factor in bringing about" injuries suffered);
Sherk v. Daisy-Hedden, 450 A.2d 615, 617 (Pa. 1982)
("Liability in ... strict liability is not imposed upon a
manufacturer simply for the manufacture of a defective
product.").

Thus, evidence of the plaintiff's or a third party's
conduct, whether negligent or not, is admissible to rebut
the allegation that a defect actually caused the injury.
Nevertheless, the Pennsylvania Supreme Court has held
that a plaintiff's or third party's conduct does not relieve
the defendant of liability for a defect which was a
substantial factor in bringing about the accident unless the
conduct constituted a superseding or intervening cause of
the injury. Thus, the defendant is liable as long as the
defect was "a substantial factor in bringing about the
harm." Powell v. Drumheller, 653 A.2d 619, 622 (Pa. 1995),
citing Jones v. Montefiore Hosp., 431 A.2d 920, 923 (Pa.
1981). Of course, for a superseding cause to relieve a
defendant whose conduct has been determined to be a

                    26
substantial factor in causing the harm, it must be "so
extraordinary as not to have been reasonably foreseeable."
Powell, 653 A.2d at 623; Kuisis v. Baldwin-Lima-Hamilton
Corp., 319 A.2d 914, 920 (Pa. 1974). Accordingly, ordinary
negligence will not do. The majority recognizes this point.
See, e.g., Majority Op. at 7 ("[T]he plaintiff must show that:
(1) a product defect (2) caused a harm (3) while the product
was being used in a foreseeable manner."); Majority Op. at
9 ("If foreseeable, the jury must find for the plaintiff unless
it finds that the defect did not play even a substantial, or
more than negligible, role in causing the plaintiff's injury.").

Plainly, then, there is a distinction between a plaintiff's
conduct which, rather than the defective product, was the
cause of the injury and a plaintiff's conduct that was so
extraordinary and unforeseeable that it was a superseding
cause of the injury. Yet, if the injury is attributable to a
plaintiff's conduct of either character, i.e., conduct that
was the cause of the injury or unforeseeable superseding
conduct, the defendant will not be liable even if its product
was defective. An understanding of Pennsylvania product
liability law requires that these concepts be kept separate
so that a court understands the category into which the
conduct fits when a defendant attempts to attribute the
plaintiff's injury to his or her conduct.

The Pennsylvania Supreme Court has not spoken
explicitly on the issue of how evidence of plaintiff and third-
party conduct should be treated at trial, but the
Pennsylvania Superior Court has addressed the issue in a
number of cases. In Bascelli v. Randy, Inc., 488 A.2d 1110
(Pa. Super. Ct. 1985), the Superior Court held that evidence
of the plaintiff's negligent conduct in driving his motorcycle
approximately 100 miles per hour at the time of the
accident was admissible to show that the excessive speed,
and not the alleged defect in the product, caused the
accident. Id. at 1113. In Gallagher v. Ing, 532 A.2d 1179
(Pa. Super. Ct. 1987), the court approved the admission of
evidence of the decedent's blood alcohol level "to show that
the decedent was so intoxicated that he was incapable of
driving safely" and that the intoxication, rather than a
product defect, caused the accident. Id. at 1183. These
cases illustrate the use of a plaintiff's conduct to

                    27
demonstrate that the injury cannot be attributed to a
defective product.

We considered how to treat a plaintiff's conduct in
Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992). In
Dillinger, we refused to allow evidence of the plaintiff's
contributory negligence because the evidence could show
only that he failed to prevent an accident resulting from a
sequence of events set into motion by a defect in the
product. Id. at 442. Although in Dillinger we characterized
the trend in the Pennsylvania Superior Court increasingly
to inject negligence principles into strict liability actions as
inconsistent with the rulings of the Pennsylvania Supreme
Court, we drew a clear distinction between evidence of
conduct which caused an accident independently of the
defect in the product and evidence of conduct which
exacerbated or failed to prevent an injury caused by the
defect. We explicitly held only the latter type of evidence
inadmissible. Id. at 442, 444 n.23. Thus, we distinguished
Bascelli and Gallagher as cases where the plaintiff's
conduct set the events leading to the accident in motion. A
number of district courts in this circuit have applied this
approach. See, e.g., Ballarini v. Clark Equip. Co., 841 F.
Supp. 662, 665 (E.D. Pa. 1993), aff'd, 96 F.3d 1431 (3d
Cir. 1996) (table); Kern v. Nissan Indust. Equip. Co., 801 F.
Supp. 1438, 1441-43 (M.D. Pa. 1992), aff'd , 16 F.3d 404
(3d Cir. 1993) (table).

A reading of Dillinger which requires the exclusion of all
evidence of foreseeable conduct by the plaintiff relating to
causation would violate the clear requirement of the
Pennsylvania Supreme Court that a plaintiff in a strict
liability action must prove that the defect in the product
caused the injuries. See Berkebile, 337 A.2d at 898. See
also Kramer v. Raymond Corp., 840 F. Supp. 336, 338 (E.D.
Pa. 1993) (holding that evidence of plaintiff's conduct is
admissible to demonstrate that defect was not a cause of
injury). After all, it hardly could be said that it is
unforeseeable that a motorcycle driver will go at a high
speed. Nevertheless, in Bascelli evidence of that speed was
admissible to show that speed, rather than a product
defect, caused the accident. Thus, Bascelli was not a
superseding cause case.

                    28
It seems to me that the majority erroneously reads
Dillinger to require the exclusion of all evidence of
foreseeable conduct of a plaintiff relating to causation, for
it indicates that the jury instruction was "fatally erroneous
[because] it failed to require the jury to analyze whether Mr.
Parks' actions were unforeseeable or extraordinary."
Majority Op. at 18. The majority then indicates, erroneously
in my view, that "[i]f the jury found that the actions were
neither unforeseeable nor extraordinary, it could not have
found his actions to be a `legal cause' of his injury." Id. The
result the majority reaches does not take into account the
distinction in Pennsylvania law between treatment of a
plaintiff's negligence which is the sole cause of the injury
and a plaintiff's negligence which combines with a defect in
the product to cause the injury. Negligence of the second
kind could defeat the claim only if so extraordinary as to be
unforeseeable.

I now consider the jury charge. The district court
instructed the jury that there were four possible causes of
the accident, the alleged defect in the product, Parks'
conduct, his employer's conduct, and his co-worker's
conduct, all of which could be legal causes of the accident.
App. at 416-17. The court further instructed the jury that
if it found a defect and that "the defect was a substantial
factor in causing the harm, then your verdict will be for the
plaintiff even if you find ... [that any other conduct] were
legal causes of the accident because I already told you there
may be more than one legal cause. . . . So, in order to find
for the defendants, you must find that the alleged defect
was not the legal cause of the accident." Id. at 417-19.

I regard this charge as consistent with Pennsylvania law.
The charge recognized that if a combination of a defect in
the product and Parks' or another person's negligence
caused the accident, the plaintiff would win. The majority
makes much of the fact that the court used the phrase "the
legal cause" rather than "a legal cause." Majority Op. at 17-
18. While I agree that "a" is the proper article to use in this
situation, I do not agree that this error so taints the charge
as a whole that it could have misled the jury. The judge
told the jury to consider the conduct only as it relates to
the initial causation of the accident to evaluate which

                     29
events were substantial factors in bringing about the
accident. Furthermore, the interrogatory to which the jury
answered "No," thereby returning a verdict for the
defendant, read as follows: "Was the defect in the excavator
a substantial factor in bringing about Mr. Parks' death?"
The jury of course, had the interrogatory when it
deliberated and in these circumstances I cannot believe
that the use of "the" rather than "a" in the charge mattered.

In my view, the majority's holding that a foreseeability
charge was required is fundamentally wrong because the
plaintiff and third-party conduct was not presented to the
jury as a superseding cause of the accident. Rather, the
defense advanced that conduct as the sole cause of the
accident. In a superseding cause situation, the defect is still
a "but for" cause of the accident, or a substantial factor,
but the superseding cause of the accident may excuse the
defendant from liability if not reasonably foreseeable. Here,
the court charged the jury to consider whether the alleged
defect was a "substantial factor" in causing the accident
and the jury found that it was not. It seems to me to be
clear that when a court lays the precepts of Pennsylvania
law against the charge, it should conclude that the charge
did not include a reversible error.

The main difference between my view and the majority's
view, besides the result we reach, is the majority's holding
that "the threshold question is whether the plaintiff's
actions were foreseeable." Majority Op. at 9. I do not
understand how it can make this statement, because it
confuses substantial factor causation, i.e., the
responsibility of the defendant in the first instance, with
superseding causation. A superseding cause, if not
reasonably foreseeable, breaks the chain of causation, but
the jury must first find that there was a chain. The
majority's holding eliminates this requirement and the
majority says that "[c]ausation may be shown by process of
elimination. . . ." Majority Op. at 10. The majority does not
have case law to support this conclusion. The cases it cites
deal with accidents where superseding causes exist after
the defect first is found to be a substantial factor, e.g.,
Decorative Precast Stone Erectors, Inc. v. Buckrus-Erie Co.,
493 F. Supp. 555, 557 (W.D. Pa. 1980), aff'd , 642 F.2d 441

                    30
(3d Cir. 1981) (table), where the plaintiff allegedly recklessly
exposed himself to a defect, Childers v. Power Line Equip.
Rentals, Inc., 681 A.2d 208-09 (Pa. 1996), where
substantial change or misuse of a product is charged, Eck
v. Powermatic Houdaille, 527 A.2d 1012, 1019 (Pa. 1987),
or where the existence of a defect rather than causation is
at issue, see Schell v. AMF, Inc., 567 F.2d 1259, 1262 (3d
Cir. 1977).

We face none of those situations in this case. The issue
at trial here was whether the defect in the product was a
substantial factor in causing the accident. The jury
instructions correctly said that if it was the plaintiff must
win. The jury found for the defendant by answering an
interrogatory expressly finding that the defect was not a
substantial factor in bringing about the accident. The
majority will not allow a verdict based on the jury's answer
to this interrogatory to stand because it holds that a
foreseeable action by the plaintiff cannot be a "legal cause"
of an accident. Majority Op. at 17-18. "Instead, it is
removed from the picture, and liability attaches to the
remaining causal actor or actors." Majority Op. at 12. I
believe that this approach is simply wrong for it eliminates
the jury's role in determining whether a defect is a
substantial factor in an accident. It turns all cases
involving causation into superseding cause cases in the
sense that unless the plaintiff's or third party's conduct is
not foreseeable, it cannot be the legal cause of the accident.
As Bascelli, the 100 miles per hour motorcycle case, so
clearly demonstrates, this is wrong. The majority opinion
overlooks the fact that the jury first must find a chain of
causation before considering whether a superseding cause
breaks the chain. It assumes that a chain exists.

Under the majority's view, a defendant could be found
liable for a defect even if the defect did not contribute to the
happening of the accident, because the majority removes
from the case the possibility that foreseeable conduct of the
plaintiff or a third party was the cause of the accident. It is
important to remember that just because an accident is a
type which a defect might cause does not mean that the
defect necessarily did cause the accident. It is up to the
jury to make this determination, not the court. Thus, I do

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not believe the Pennsylvania Supreme Court would condone
the result reached here. The majority's opinion will force
the district court to try the case on the remand on incorrect
principles of law and will require it to deliver an incorrect
charge.

In responding to my dissent in which I emphasize that
the majority does not take into account the distinction
between a plaintiff's negligence which is the sole cause of
the injury and a plaintiff's conduct that was an
unforseeable superseding intervening cause of the injury,
the majority sets forth the following:

 The instant case is precisely of the second type: the
jury explicitly answered yes to the question, `Was the
Gradall excavator defective at the time it was
manufactured and sold?' App. at 432. The machine's
defect was impaired visibility of precisely the area in
which the accident occurred. In accordance with the
dissent's above description, the manufacturer of the
defective product should be held liable unless the
plaintiff's actions were unforseeable.

Majority Op. at 9-10 n.3.

I deduce from the foregoing analysis that the majority,
sitting as a court of appeals, must be determining as a
matter of law that the nature of the defect meant it had to
be a substantial factor in bringing about the accident. I
cannot understand how the majority can make this
determination because it is deciding the proximate cause
issue and deciding it contrary to the jury which expressly
answered "no" to the following question: "Was the defect in
the excavator a substantial factor in bringing about Mr.
Parks' death?" The fact that the machine had impaired
visibility no doubt led the jury to find that it was defective.
Yet that finding simply did not determine that the defect
was a substantial factor in bringing about the accident.
Thus, just as I have indicated already, the majority turns
all cases involving causation when a plaintiff's or third
party's conduct is involved into superseding cause cases so
that unless the plaintiff's or third party's conduct is
unforeseeable, it cannot be the legal cause of the accident.

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As far as I am concerned this appeal is being decided
incorrectly which in itself is unfortunate. But the
consequences of the majority opinion go beyond this case.
There are many diversity of citizenship products liability
cases under Pennsylvania law tried in this circuit. From the
time of the publication of the opinion in this case the
district courts will be confronted with following
Pennsylvania law, as announced by the Pennsylvania
courts and permit the jury to conclude that a plaintiff's or
third party's conduct, even if foreseeable, can be the sole
proximate cause of an injury, or following the majority's
opinion which makes clear that the injury can be attributed
to plaintiff's or third party's conduct only if that conduct is
not foreseeable. I presume that the district courts will
follow the majority's opinion here and thus the outcome of
a case may be determined on whether it is tried in the state
or federal court. This is serious business.

Judge McKee's concurrence misinterprets the holding I
suggest would be appropriate here and thus it does not
persuade me that my views are wrong. I do not believe, as
Judge McKee suggests I do, Concurrence at 20-21, that a
plaintiff's conduct can be used to relieve a defendant of
liability merely because it contributed to an accident
caused by a defect. In fact, I believe the opposite to be true.
Yet, a jury must determine whether the defect is actually a
substantial factor in causing the accident and thus must
consider what else, including a plaintiff's conduct, could
have caused the accident without contribution from the
defect. Thus, I agree with Judge McKee when he states:
" `[i]f the alleged defect was a substantial factor in bringing
about the harm,' absent assumption of risk, misuse of
product, or highly reckless conduct, it is irrelevant whether
plaintiff's conduct set the events in motion or merely failed
to prevent an injury . . . ." Concurrence at 25.
Unfortunately, however, the result being reached here will
not allow the jury to decide whether the defect is "a
substantial factor in bringing about the harm."

Indeed, Judge McKee's explanation of Judge Cowen's
opinion effectively admits this point because, quoting Judge
Cowen, he indicates that "[e]vidence of the decedent's
actions in the instant case is appropriate only if a jury

                     33
determined that such actions were `not reasonably
foreseeable or were otherwise extraordinary.' " Concurrence
at 25. This statement simply cannot be correct because it
removes from the jury the opportunity to consider whether
the defect was "a substantial factor in bringing about the
harm." A plaintiff's unexceptionable conduct may cause a
plaintiff using a defective product to be injured without the
defect in the product contributing to the injury. For
example, a car might be delivered with defective brakes but
if a plaintiff driving the car who is about to get into an
accident, whether or not he is negligent, does not use the
brakes, then the defect simply is not a substantial factor in
bringing about the harm even if the brakes would not have
worked if the plaintiff had applied them. In such a case the
defendant should be able to establish that the defective
brakes had nothing to do with the accident and the
defendant should win in a products liability case. See
Berkebile, 337 A.2d at 901 ("Whether decident actually
attempted autorotation is relevant to the issue of causation.
If the jury were to conclude, for example, that a non-
defective system would allow two seconds for autorotation
and that the decedent did not attempt autorotation for
three seconds; even if a defect was shown, it would not
have been the proximate cause of the crush.").

The fact in my brakes example that the plaintiff might
have been negligent is immaterial and thus if the plaintiff
was negligent his negligence would not bar his claim.
Rather, he would lose because the defect was not a
substantial factor in bringing about the accident. The
district court properly tried the case applying these
principles which Pennsylvania law (and probably the law
through the United States) establishes, and thus we should
affirm.

In the circumstances I am constrained to dissent.

A True Copy:
Teste:

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

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