Cave v. Wampler Foods, Inc.

961 A.2d 864, 2008 Pa. Super. 267, 2008 Pa. Super. LEXIS 3926, 2008 WL 4867989

• Court: Superior Court of Pennsylvania
• Decided: November 12, 2008
• Docket: 1277 MDA 2007
• Status: Published

Opinions

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellants, Wampler Foods, Inc. and Pilgrim’s Pride Corporation of Virginia, Inc., appeal from the judgment of August 21, 2007. We vacate and remand for a new trial.

¶ 2 The trial court recited the procedural history and found the following facts:

This is a products liability case in which a jury trial was conducted on October 30-31, 2006. [Appellee, Nicholas Cave] brought an action against [Appellants] based on strict liability seeking recovery for dental injuries sustained by [Cave] when he bit into hard material while eating a ground turkey product which had been manufactured, processed, marketed and sold by [Appellants]. The jury trial was conducted in accordance with Pa.R.C.P. No. 1311.1, wherein the parties agreed that the maximum amount of recoverable damages could not exceed $25,000.00. The jury returned a verdict in favor of [Cave] with total damages in the amount of $11,870.00.

Trial Court Opinion, 9/11/07, at 1.

¶ 3 The trial court denied Appellants’ timely post-trial motion for JNOV and/or a new trial. This timely appeal followed. Appellants raise the following issues for our review:

I. Whether the trial court abused its discretion by improperly excluding testimony regarding applicable federal, state and local regulations as well as poultry industry standards bearing on whether any defect existed in the allegedly defective product at the time such product left Pilgrim’s Pride’s processing plant?

II. Whether the trial court abused its discretion by improperly excluding relevant and probative testimony as to the composition of the alleged offending particles or substance in the allegedly defective product which directly relates to the ultimate determination as to whether the alleged offending product was defective?

III. Whether the trial court abused its discretion by denying Pilgrim’s Pride’s Motion in Limine to Exclude Hearsay portions of Plaintiffs treating physician’s medical records on the grounds that the challenged portions constituted hearsay and would mislead and/or confuse the jury?

IV. Whether the trial court abused its discretion by excluding relevant, probative testimony and cross examination regarding Plaintiffs treating physician’s criminal convictions for improperly compiling treatment notes, rendering unnecessary and improper treatment, and falsifying insurance documents?

V. Whether the trial court committed a controlling error of law or otherwise abused its discretion by failing to define what constitutes a “defect” by refusing to give Pilgrim’s Pride’s proposed points for charge numbers 15, 16, 17, 18, 23, and 25?

VI. Whether the trial court abused its discretion by granting Mr. Cave’s motion for delay damages despite the fact that Mr. Cave caused the delay of the trial?

Appellants’ Brief at 5.¹

¶4 The trial court declined to award a new trial based on any of the alleged errors. We review the trial court’s decision as follows:

We will reverse a trial court’s decision to deny a motion for a new trial only if the trial court abused its discretion. We must review the court’s alleged mistake and determine whether the court erred and, if so, whether the error resulted in prejudice necessitating a new trial. If the alleged mistake concerned an error of law, we will scrutinize for legal error. Once we determine whether an error occurred, we must then determine whether the trial court abused its discretion in ruling on the request for a new trial. An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will.

Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.Super.2008).

¶ 5 Furthermore, we note at the outset that “[c]ourt control of jury action in products liability cases is more extensive than in an ordinary negligence action.” Schindler v. Sofamor, Inc., 774 A.2d 765, 771 (Pa.Super.2001), appeal denied, 567 Pa. 727, 786 A.2d 989 (Pa.2001). The Schindler Court wrote as follows:

In Azzarello v. Black Bros. Co., Inc., [480 Pa. 547] 391 A.2d 1020, 1026 (1978), the Supreme Court held that it is a judicial function to decide whether, under the plaintiffs version of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averrants [sic] of the complaint. In products liability cases, § 402A of the Restatement (Second) of Torts has been adopted as the law of this Commonwealth, and to prevail, the plaintiff must prove (1) that the product was defective, (2) that the defect existed when it left the hands of the defendant, and (3) that the defect caused the harm.

Id. (citations omitted).

¶ 6 Appellants first challenge the trial court’s refusal to admit evidence of regulations and industry standards pertaining to the product in question. We review this issue according to the following standard:

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

Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super.2008). A party suffers prejudice where the trial court commits an error that could have affected the verdict. Pulliam v. Fannie, 850 A.2d 636 (Pa.Super.2004), appeal denied, 583 Pa. 696, 879 A.2d 783 (Pa.2005).

¶ 7 Cave correctly notes that Pennsylvania courts have previously rejected introduction of industry or government standards in evidence in strict liability actions. Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987); Sheehan v. Cincinnati Shaper Co., 382 Pa.Super. 579, 555 A.2d 1352 (1989), appeal denied, 523 Pa. 633, 564 A.2d 1261 (Pa.1989); Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), appeal denied, 520 Pa. 594, 552 A.2d 249 (Pa.1988). The rationale is that such evidence would “introduce the reasonableness of the manufacturer’s conduct into an action which focuses, for public policy reasons, upon the existence of a defect.” Sheehan, 555 A.2d at 1355. In a strict liability case, “[t]he liability of a manufacturer is measured solely by the characteristics of the product he has produced rather than his behavior, and, therefore, strict liability does not sound in negligence.” Lewis, 528 A.2d at 593, quoting Lenhardt v. Ford Motor Co., 102 Wash.2d 208, 683 P.2d 1097, 1100 (1984). A product is defective if it leaves “the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.” Schindler, 774 A.2d at 772.

¶ 8 In the instant matter, Appellants sought to introduce evidence that the Code of Federal Regulations sets forth a tolerance for a small amount of bone material in processed meat.² The proffered evidence is directly relevant to and probative of Cave’s allegation that the product at issue was defective. Moreover, Appellants do not seek to prove, through admission of this evidence, that they exercised “all possible care.” Cf. Lewis, 528 A.2d at 593. That is, the evidence does not pertain to Appellants’ method of producing the ground turkey. The proffered evidence pertains solely to the characteristics of the end product, in accordance with Lewis. Evidence of this kind is relevant, though not conclusive, of whether a defect exists.

¶ 9 We do not go so far as to announce that the holdings in Lewis and its progeny do not apply in manufacturing defect cases, as Appellants suggest. We conclude only that, under the unique facts of this food products claim, the proffered evidence was relevant and admissible, and the trial court misapplied the law in excluding it.

¶ 10 Appellants next argue that the trial court abused its discretion in precluding testimony of an official from Wam-pler Foods, Inc. to the effect that the substance that caused Cave’s injury was not bone or cartilage from a turkey. As Appellants correctly point out, lay opinion testimony is admissible if it is “rationally based on the perception of the witness [and] helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue....” Pa.R.E. 701; Camp Constr. Corp. v. Lumber Products Co., 311 Pa.Super. 381, 457 A.2d 937 (1983).

¶ 11 Cave and another plaintiffs witness both testified that the offending substance appeared to be cartilage or bone. N.T., 10/30/06-10/31/06, at 87, 135. We see no valid basis for admitting lay opinion testimony on behalf of the plaintiff and excluding lay opinion testimony from a defense witness on precisely the same issue. We conclude, therefore, that the trial court abused its discretion in this regard.

¶ 12 Appellants’ next two arguments address the trial court’s admission of records from Cave’s treating physician. Both arguments center on the physician’s credibility, inasmuch as he was incarcerated at the time of trial for falsifying records and performing unnecessary treatments. As we have noted, the parties tried this case pursuant to Pa.R.C.P. 1311.1, governing trial after an appeal from an award of arbitration. Pursuant to Rule 1311.1(a), the plaintiff may stipulate $25,000.00 as the maximum amount of recovery. The stipulation allows the plaintiff to offer certain documents into evidence without the need for witness testimony. Pa.R.C.P. 1311.1(b). An adverse party may, however, subpoena a witness whose testimony would otherwise be waived. Pa.R.C.P. 1311.1(c). The trial court concluded that Appellants should have subpoenaed the treating physician pursuant to Rule 1311.1(c) if they wanted to attack his credibility. Since we will remand this case for new trial, Appellants will have an opportunity to subpoena the physician to appear at trial. Appellants may then examine him in accordance with any and all applicable rules, including Pa.R.E. 609, governing a witness’ prior crimes of dishonesty. Thus, we need not engage in further analysis of this issue.

¶ 13 Appellants next argue that the trial court committed reversible error in failing to provide the jury with adequate instructions as to the meaning of “defect.” The trial court concluded that Appellants waived their objections to the jury charge. We have held that a party must make a timely, specific objection in order to preserve a challenge to the trial court’s jury charge. Faherty v. Gracias, 874 A.2d 1239, 1249 (Pa.Super.2005). Appellants made detailed, contemporaneous objections to the trial court’s rejection of certain points for charge. N.T., 10/30/06-10/31/06, at 301-306. Each of these proposed points pertained in some way to the definition of defect. Appellants’ subsequent assertion in their post-trial motion that the trial court’s jury charge failed to provide an adequate definition of defect was sufficient to preserve this issue for appellate review.

¶ 14 With regard to the merits, we have held that jury instructions must contain correct definitions of legal terms, and that incomplete jury instructions are grounds for a new trial. Gorman v. Costello, 929 A.2d 1208, 1213 (Pa.Super.2007). As we have noted, “[a] jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.” Schindler, 774 A.2d at 772. In a products liability case, the evidence will often provide the jury with a definition of defect pertinent to the product at issue. See Pennsylvania Suggested Standard Civil Jury Instructions, 8.01, subcommittee comment.

¶ 15 The record reflects that the trial court’s instruction adheres to the Pennsylvania standard jury instruction for strict liability:

The manufacturer of a product is liable for the injuries caused to the plaintiff by a defect in the product which existed when the product left the possession of the manufacturer. Such liability is imposed even if the manufacturer has taken all possible care in the preparation and sale of the product.

N.T., 10/30/06-10/31/06, at 237. The trial court further instructed the jury that the “plaintiff must eliminate any other causes which are fairly suggested by the evidence.” Id. at 238. The trial court did not include the language set forth in Schindler, and we direct that the trial court do so on remand. We will not, however, direct the trial court to provide the proposed points for charge Appellants set forth in their brief. A charge that adheres to the standard suggested instruction and includes language similar to that set forth in Schindler will provide adequate guidance to the jury in this case.³ The jury’s task will be to determine whether the turkey was defective based on all of the evidence of record, including the evidence to be admitted pursuant to this Opinion. As the comment to standard instruction 8.01 makes clear, the evidence in a given case is most important in guiding a jury’s decision as to whether a particular product is defective.

¶ 16 Each of the foregoing trial court errors diminished the jury’s ability to determine whether Cave proved that the ground turkey was in a defective condition when it left Appellants’ control. We cannot conclude that these errors were harmless or that they did not affect the jury’s verdict. Thus, the trial court abused its discretion in declining to award a new trial. Underwood. In light of the foregoing, we vacate the judgment and remand for a new trial.⁴

¶ 17 Judgment vacated. Case remanded for new trial. Jurisdiction relinquished.

¶ 18 Judge Colville files a Dissenting Opinion.

1 . Appellants included these issues in a timely concise statement of matters complained of on appeal. Pa.R.A.P.1925(b).

2 . The provision provides that meat products labeled as "boneless” shall not contain more than 1% bone, by weight. 9 C.F.R. 381.117(d). Likewise, Appellants sought to introduce a study published in the Federal Register reflecting that small particles of bone are not considered a health hazard. We confine our analysis to the admissibility of these items, and express no opinion on the admissibility of evidence of any other government regulation or industry standard.

3 . Specifically, we note that a substantial change instruction is not necessary, inasmuch as the trial court instructed the jury that Cave must eliminate any other potential causes of his injury suggested by the evidence. The other products with which Cave mixed the ground turkey are properly considered other potential causes of injury, rather than substantial changes to the turkey itself. Substantial change instructions are common where the alleged defective product is a machine, but we are dubious as to their value in a food products claim. Food products are commonly mixed with other food products and prepared in various ways prior to consumption.

4 . Since we are vacating the judgment, we will not address Appellants’ argument regarding delay damages.