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OVERPECK v. CHICAGO PNEUMATIC TOOL COMPANY (07/10/87)

filed: July 10, 1987.

OVERPECK, HOWARD N. AND OVERPECK, CHRISTINE, HIS WIFE, APPELLANTS
v.
CHICAGO PNEUMATIC TOOL COMPANY, AND COATS COMPANY, INC., A DIVISION OF HENNESSY INDUSTRIES, INC.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, D.C. Civil No. 84-3242.

Author: Higginbotham

Before: HIGGINBOTHAM and BECKER, Circuit Judges, and DUMBAULD,*fn* District Judge.

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This is an appeal from the district court's ruling on appellees' motion for judgment notwithstanding the verdict pursuant to Fed. R. Civ. P. 50 and, alternatively, appellees' motion for a new trial pursuant to Fed. R. Civ. P. 59. Finding that appellants had not established causation as their claims required, the district court granted appellees' motion for judgment notwithstanding the verdict and, alternatively, appellees' motion for a new trial. Because we find that appellants did not meet their evidentiary burdens at trial, we affirm the order of the district court.

I.

In late 1981 or early 1982, appellant Howard Overpeck ("Overpeck"), a professional truck driver, acquired a Powerman 990 pneumatic tire changer that appellees, Chicago Pneumatic Took Company and Coats Company, had manufactured and marketed in 1964. Overpeck purchased the Powerman 990 from Gerald Tittle, a junk and used car parts dealer, for $100 and later installed it in the garage at his residence. At the time of purchase, Overpeck requested neither an owner's manual nor a set of operator's instructions.

On August 8, 1982, while using his Powerman 990 in his garage. Overpeck attempted to mount a new tire onto a wheel rim from which he had earlier successfully demounted another tire. Following what might be described as the standard procedure for mounting tires,*fn1 Overpeck put the mounting tool through a 270-degree rotation which did not completely mount the new tire onto the rim. Overpeck then released the tire changer's pedal so that the mounting tool could return to its starting position and be put through another rotation that would completely mount the tire. After Overpeck released the pedal, the mounting tool became disengaged from both the machine and tire and struck Overpeck in the left eye. As a result, Overpeck sustained injuries that substantially restrict and diminish his vision and that may result in further deterioration or even complete loss of his eyesight in the future.

Appellants brought a products liability action against appellees in the District Court for the Eastern District of Pennsylvania, claiming (1) that Overpeck's Powerman 990 was defectively designed and (2) that it lacked adequate warnings concerning its hidden dangers. After jury trial, in accordance with the jury's responses to interrogatories, the district court entered a judgment for appellees on the design defect claim and a judgment for appellants on the claim for failure to warn in the amount of $200,000.00. Appellees then moved for a judgment notwithstanding the verdict pursuant to Fed. R. Civ. P. 50 and, alternatively, for a new trial pursuant to Fed. R. Civ. P. 59. On March 25, 1986, the district court, finding that appellants' evidence could lead to but one conclusion, entered a memorandum and order granting appellees' motion for judgment notwithstanding the verdict. Overpeck v. Chicago Pneumatic Tool Co., 634 F. Supp. 638, 640-41 (E.D. Pa. 1986). In the same memorandum and order, the district court, finding further that the jury's responses to the failure to warn claim interrogatories were against the weight of the evidence, and that appellants' counsel had at trial made prejudicial reference to a jury verdict in another case, also ruled alternatively that appellees were entitled to a new trial even if they were not entitled to judgment notwithstanding the verdict. Id. at 641. This appeal followed.

II.

In this appeal, we review a grant of a motion for judgment notwithstanding the verdict. Our inquiry therefore is whether there is sufficient evidence in the record to sustain the jury's verdict. Acosta v. Honda Motor Co. Ltd., 717 F.2d 828 (3d Cir. 1983). As this is a diversity case, we will apply the law of the appropriate state, which the parties acknowledge is Pennsylvania. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).

A.

Pennsylvania courts have adopted section 402A of the Restatement (Second) of Torts, which imposes strict liability on the seller of any product in a defective condition unreasonably dangerous to the user or consumer. See, e.g., Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206, 444 Pa. 299 (1971). Under section 402A, a product may be found to be defective and unreasonably dangerous if its manufacturer fails to warn the user or consumer of latent dangers in the product's use or operation. Sherk v. Daisy-Heddon, A Division of Victor Comptometer Corp., 498 Pa. 594, 450 A.2d 615 (1982). A mere failure to warn of latent product dangers may therefore serve as the basis for recovery under section 402A. It should be noted, however, that in a case alleging the defendant's failure to warn of latent dangers, Pennsylvania law also requires the plaintiff to "establish that the failure to warn adequately of dangers was the cause-in-fact and proximate cause of his or her injuries." Conti v. Ford Motor Co., 743 F.2d 195, 197 (3d Cir. 1984). This requirement demands that plaintiff prove more than that a defective product was involved in an accident; plaintiff must show that defendant produced a defective product and that product's defect resulted in plaintiff's injuries. See Sherk, 498 Pa. at 598, 450 A.2d at 619.

Here, the district court's grant of judgment notwithstanding the verdict was proper because appellants clearly failed to sustain the aforementioned burden. Appellants' initial claim that the Powerman 990 was defectively designed was squarely rejected by the jury. App. at 35-36, Appellants' remaining claim, that the Powerman 990 was defective because it lacked an adequate warning, was unsupported by their proof.

By their expert witness, James Currie, appellants specifically asserted that:

The other part of my claim for defective design is that, indeed, this is a machine with a fairly sophisticated, fairly high number of internal components that have to do with pneumatics and cables and pulleys and springs and return springs and air pressure. All of which has to perform a series of coordinated motions of the parts of the tools, such as the bead breakers and the rotation of the center post.

And, as a result of all that and the possibility of one or many -- one or more of these features coming out of adjustment, either through leakage or evaporation or breakage or stretching or any number of other things, this machine can over time come out of adjustment and contribute to an uneven, jerky kind of rotation or movement of that tool, which would then contribute to its possibly becoming ungripped from the bead and the center post and tire.

And, as a result, I feel that one of the features that this machine lacks is a strong indication right on the machine that this machine does require periodic attention to those kinds of things. And, a warning to the effect that if the machine gets out of adjustment, that it can be a hazardous situation to continue to operate it.

App. at 15-16. Appellants thus asserted that the Powerman 990 should have warned that an uneven, jerky took motion due to the tire changer's misadjustment created the possibility that the tool would work itself free from the rest of the machine and injure a user. To prevail, appellants were required to show that the Powerman 990 was defective for its failure to warn and that the defect was the cause of Overpeck's injuries. Appellants thus needed to show that Overpeck's injuries resulted from use during uneven, jerky motion, which use a warning would have averted. Appellants, however, offered no evidence that the mounting tool flew off at a time when the mounting tool was moving in an uneven or jerky manner. When questioned concerning the machine's operation at the time of the accident, Overpeck's brother, Arlington, repeatedly stated that the could not describe the tool's movement at the time of the accident because the events leading to injury occurred so quickly. App. at 89b, 92b-93b. Overpeck's brother, Glenn, directly stated that he could not describe the tool's movement at the time of the accident. Id. at 97b-99b. Neither witness suggested that the tool's movement at the time of the accident could be characterized as uneven or jerky. Indeed, Glenn Overpeck's testimony indicates that the tool moved "about three-quarters" of its 360-degree revolution and stopped without difficulty as it was designed to do. See App. at 96b. This account of the bar's proper 270-degree movement was corroborated by Overpeck himself, see App. at 68b, who never suggested that the mounting tool operated in an uneven or jerky manner at the time of the accident. Appellants thus plainly failed to put forth evidence that the type of accident that the allegedly required warning might have prevented -- an accident resulting from the mounting tool's uneven or jerky motion -- actually occurred. Consequently, appellants necessarily failed to show that such an accident caused Overpeck's injuries and cannot prevail on their future to warn claim.

Even if we were to infer that Overpeck's mounting tool was operating in an uneven or jerky manner at the time of the incident, we nevertheless would be required to find that appellants failed to produce sufficient evidence to defeat the motion for judgment notwithstanding the verdict. As noted above, at trial appellants bore the burden of establishing that the product's alleged defect proximately caused the injury. In Pennsylvania, this burden requires plaintiff to demonstrate that an adequate warning would have modified his or her behavior so as to avoid injury. Powell v. J. T. Posey Co., 766 F.2d 131, 133 (1985) (interpreting Pennsylvania law). Here, appellants made no such showing. In fact, Overpeck's own trial testimony clearly establishes that he was aware that the mounting tool might fly off during operation of the machine, whether or not the tool was operating in an uneven or jerky manner:

Q [by counsel for appellees]: Before you depress that pedal and make the took turn, what is holding the tooling in place?

A [by Overpeck]: Your hand.

Q: Suppose you let go with ...


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