Sullivan, M. v. Werner Company

2021 Pa. Super. 66

• Court: Superior Court of Pennsylvania
• Decided: April 15, 2021
• Docket: 3086 EDA 2019
• Status: Published

Opinion

J-A04035-21

2021 PA Super 66

MICHAEL AND MELISSA SULLIVAN, : IN THE SUPERIOR COURT OF H/W : PENNSYLVANIA : : v. : : : WERNER COMPANY AND LOWE'S : COMPANIES, INC., AND : No. 3086 EDA 2019 MIDDLETOWN TOWNSHIP LOWE'S : STORE #1572 : : : APPEAL OF: WERNER COMPANY AND : LOWE'S COMPANIES, INC., :

Appeal from the Judgment Entered November 19, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 161003086

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED APRIL 15, 2021

Michael Sullivan (Sullivan) and Melissa Sullivan, his wife, brought this

strict products liability action after he fell through a scaffold made by Werner

Company (Werner) and sold by Lowe’s Companies, Inc. (Lowe’s) (collectively,

Manufacturer). A jury determined that a design defect caused the accident

and awarded Sullivan $2.5 million in damages. On appeal, Manufacturer

raises three challenges. First, Manufacturer alleges that the trial court erred

in precluding industry standards evidence. Second, Manufacturer asserts that

it should have been allowed to argue that Sullivan’s negligence was the sole

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* Retired Senior Judge assigned to the Superior Court. J-A04035-21

cause of the accident. Third, Manufacturer challenges Sullivan’s mechanical

engineering expert, arguing that both his opinion testimony and videotaped

testing lacked a proper factual foundation. We affirm.

I.

A.

The scaffold that was alleged defective is the Werner SRS-72, a six-foot

tall steel rolling scaffold. It has two end frames, two side rails, a steel-encased

plywood platform, and four locking caster wheels. To assemble the frame,

the user attaches the side rails to the end frames. Once attached, the side

rails and end frames create a frame for the platform to rest in. The user seats

the platform in the frame by placing it on horizontal flanges on the side rails.

When fully seated, the platform should be flush with the top of the side rails.

The user then secures the platform to the frame with two deck pins -

one on each side diagonal from the other. With an inverted L-shape design,

the deck pins cover the platform. To secure the platform, the user pushes the

spring-loaded deck pins up and rotates them so that their upper parts cover

the platform. When fully rotated, the deck pins protect the platform against

upward force. Finally, with the platform secured, the user attaches the wheels

to the end frames. When the wheels are unlocked, the user can roll the

scaffold to his work area. After locking the wheels, the user climbs the rungs

on the end frames to get on the platform and work.

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The accident happened on June 26, 2015. On that day, Sullivan was

working as a union carpenter at a Bucks County elementary school being

renovated. Along with his apprentice Michael Bentzley (Bentzley), Sullivan’s

job that day was to install an exterior sheathing called DensGlass to the

outdoor walls. Sullivan went to the work site’s container box and retrieved a

brand-new Werner SRS-72 scaffold that his foreman bought at a Lowe’s store.

As a carpenter with 17 years’ experience, Sullivan had assembled “hundreds”

of scaffolds. Sullivan took the scaffold out of the box, read the instructions

and assembled the scaffold with help from Bentzley. After setting the scaffold

at its tallest height of six feet, Sullivan placed the platform within the side rails

and rotated the deck pins to secure the platform. Sullivan and Bentzley then

rolled the scaffold through the school, down a ramp and over outdoor asphalt

to the wall where they would be working.

At the wall, Sullivan did not need the scaffold to install the bottom two

rows of DensGlass pieces, which were eight-by-four feet and about 40 pounds

per piece. Sullivan, however, needed the scaffold to install the top row. After

placing the scaffold six inches from the wall, he climbed the rungs to get on

the platform and take measurements because the DensGlass pieces were too

big for the top row. Sullivan then relayed the measurements to Bentzley at a

nearby cutting station. Bentzley would cut the pieces based on the

measurements, walk the pieces to the scaffold, rest them on the platform,

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and then slide them up to Sullivan. Sullivan then lifted up the pieces and

installed them to the wall with a screw gun.

Sullivan installed the first two pieces with no problems. Each time, he

installed the piece, climbed off the platform, unlocked the wheels, rolled the

scaffold about eight feet to the next section, relocked the wheels and then

climbed back up on the platform. While installing the third piece, Sullivan fell

through the scaffold and crashed to the ground, landing on his backside. At

trial, Sullivan testified the platform collapsed beneath him like a “trapdoor.”

Bentzley heard the crash and rushed over to find a dazed Sullivan laying under

the scaffold. The foreman also came and saw the same thing. Sullivan told

him that he “fell through the scaffold, that the scaffold plank gave way.”

Despite the accident, Sullivan got up after a few minutes and continued

working on the scaffold. Later that night, however, he went to the hospital.

X-rays revealed that he injured his lumbar vertebrae and fractured his sacrum.

Having suffered permanent injuries requiring continual medical treatment,

Sullivan has been unable to return to work as a carpenter since the accident.

B.

Sullivan, together with his wife, filed this action in the Court of Common

Pleas of Philadelphia County (trial court) against Manufacturer.1 Sullivan

asserted claims for negligence (later withdrawn at trial) and strict products

1 Sullivan’s wife asserted a consortium claim that did not succeed at trial.

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liability under RESTATEMENT (SECOND) OF TORTS, § 402A, asserting that the

Werner SRS-72 scaffold was defective because of a design defect and failure-

to-warn.2

2 RESTATEMENT (SECOND) OF TORTS, § 402A (1965), 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 any contractual relation with the seller.

We have explained the different doctrines under which a plaintiff can prove a product’s defectiveness:

To prevail in an action under [S]ection 402A, the plaintiff must prove that the product was defective, the defect existed when it left the defendant’s hands, and the defect caused the harm. The threshold inquiry in all products liability cases is whether there is a defect. This threshold

can be crossed ... either by proving a breakdown in the machine or a component thereof, traditionally known as a manufacturing defect; or in cases where there is no breakdown, by proving that the design of the machine

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For the design defect, Sullivan alleged that it was foreseeable that the

platform could collapse during normal use of the scaffold. Under his theory,

a user would inadvertently rotate the deck pins off the platform by kicking

them while working or when the user moved tools or materials near the pins.

With the deck pins rotated off, the platform would become unseated when the

user climbed the rungs or moved the scaffold. The platform would stay

unseated because of a weld protrusion in one of the platform’s steel corners.

The user would then be unaware that the platform was misaligned, leading to

a collapse once the user stepped back on the unsecured platform.

As for failure-to-warn, the side rails contained a sticker instructing the

user to “[e]nsure deck pin is completely rotated and platform is seated within

side rails before each use.” Besides being obscured by the deck pins and not

warning of the consequences for failing to follow, the instruction was alleged

results in an unreasonably dangerous product, traditionally known as a design defect.

A third doctrine recognized under [S]ection 402A is the “failure- to-warn” theory, under which the plaintiff may recover for the defendant’s failure to provide adequate instructions to the user on how to use the product as the product was designed. To succeed on a claim of inadequate or lack of warning, a plaintiff must prove that the lack of warning rendered the product unreasonably dangerous and that it was the proximate cause of the injury.

Barton v. Lowe's Home Centers, Inc., 124 A.3d 349, 354-55 (Pa. Super. 2015) (internal citations and some quotation marks omitted).

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defective because it did not clarify that “each use” included checking the pins

and platform each time the user climbed off the platform.

To support his claims, Sullivan obtained the opinion of Russell Rasnic

(Rasnic), an expert in mechanical engineering. In his report, Rasnic stated

that the Werner SRS-72 scaffold was defective because the deck pins could

become inadvertently rotated off the platform, which could then lead to the

platform becoming unseated from the side rails. In finding the scaffold

defective, Rasnic reviewed several similar scaffolds and concluded that there

are safer alternative designs to protect against a platform collapsing during

normal use. In particular, other manufacturers included four deck pins instead

of two to secure the platform. Additionally, other manufacturers included

positive alignment devices to their deck pins to ensure that they could not be

rotated off the platform. Having found the scaffold defective, Rasnic further

concluded that the scaffold’s defectiveness caused the accident.

As part of his analysis, Rasnic filmed himself testing an exemplar Werner

SRS-72 scaffold. The videotaped testing shows Rasnic making the platform

collapse twice. He does this by first setting the welded corner of the platform

on top of the side rail. With the deck pins still on, Rasnic gets on the platform

while hanging onto the ceiling. After kicking out a deck pin, he steps on the

platform and causes it to immediately collapse. He does this a second time

but has to apply lateral force several times before the platform collapses.

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Manufacturer countered with its own engineering expert, Erick H. Knox,

Ph.D. (Knox). He disagreed that it was foreseeable a user would unknowingly

rotate the deck pins off the platform while using the scaffold. Further, he

rebutted Rasnic’s claims about safer alternative designs by observing that the

inverted L-shaped design of the deck pins was the most prevalent in the

industry. He also noted that the Werner SRS-72 scaffold complied with the

safety standards of the American National Standards Institute (ANSI) and

Occupational Safety and Health Administration (OSHA). In his view, the

alternative designs detailed by Rasnic were unnecessary to ensure a user’s

safety.

Additionally, Knox concluded that a properly seated platform will remain

so during normal use with the deck pins engaged. Through his own testing,

he determined that a properly seated platform will not become misaligned

even with abnormal pressure being applied to the scaffold. He concluded that

the only way the platform could collapse in the way that Sullivan described

was if he did not properly place it within the side rails with the deck pins

engaged before climbing on it. Knox added that Sullivan could have avoided

the accident by following the instruction that the platform be seated within

the side rails with the deck pins rotated “before each use.”

Before trial, Sullivan filed a motion in limine to bar the admission of any

government or industry standards evidence at trial, arguing that Pennsylvania

courts have generally barred such evidence in strict liability cases.

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Importantly, he contended, this prohibition was unaffected by the

Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc., 104

A.3d 328 (Pa. 2014), which, as discussed below, erased the strict distinction

between negligence and strict liability. Manufacturer took the opposite view,

arguing that, after Tincher, government and industry standards evidence was

admissible in strict liability cases. The trial court, however, agreed with

Sullivan and granted the motion. Because of the ruling, Manufacturer was

precluded from introducing scaffolds from other manufacturers that had deck

pins similar to those used in the Werner SRS-72 scaffold.

Manufacturer, meanwhile, filed two pretrial motions in limine seeking to

limit Rasnic’s testimony at trial. In the first, Manufacturer argued that no

evidence supported Rasnic’s opinion about how the platform collapsed. Under

this argument, his opinion about how the accident happened was speculative

because neither Sullivan nor Bentzley remembered the deck pins being

disengaged or the platform being unseated. Similarly, in their other motion,

Manufacturer sought to preclude Rasnic’s videotaped testing. According to

Manufacturer, the conditions of the testing differed from those described by

Sullivan, emphasizing that Rasnic intentionally displaced the platform and

applied “abnormal, unforeseeable” force to get the platform to collapse.

The trial court denied both motions. As a result, the trial court allowed

Rasnic to opine that the scaffold was defective without testimony that the deck

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pins became disengaged or the platform became unseated. Likewise, Sullivan

could show the jury Rasnic’s videotaped testing during his testimony.

The parties proceeded to a two-week jury trial. During trial, a dispute

arose whether Manufacturer could argue that Sullivan’s negligence caused the

accident. Manufacturer insisted it be allowed to argue that Sullivan was the

sole cause of the accident, asserting that he was negligent for failing to ensure

that the platform was seated with the deck pins fully rotated each time he

climbed onto the platform. Sullivan responded that contributory negligence is

inadmissible in strict liability actions unless it amounts to assumption of risk,

misuse of a product or highly reckless conduct.

Agreeing with Sullivan, the trial court ruled that Manufacturer could not

argue in its closing statement that Sullivan’s negligence was the sole cause of

the accident.

And then finally, again, having reviewed all the case law the defendant can argue, during closing, when it comes to causation, that the platform didn’t collapse and they can argue, during the design defect part of it, that people, the average consumer or whatever, who heeds the warnings won’t fall. But I did not find that the plaintiff’s conduct could be found as extreme recklessness or whatever it’s called. In fact, the case law makes it pretty clear that it has to be that even if the thing was designed properly, the recklessness still would have been so severe that he would have gotten injured anyway.

So, because it doesn’t rise to that level, it can’t be used in causation and it can’t be talked about specifically during the design defect portion except, again, to reference that the warning is sound and someone, when you’re looking at whether this is a properly designed product, you can consider this warning and how the typical consumer, reasonable consumer, would react to it.

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N.T., 5/6/19, at 88.

Consistent with its holding, the trial court instructed the jury during its

final charge that it could not consider any negligence or lack of due care by

Sullivan as part of its defectiveness determination. Rather, the jury would

need to consider the risk-utility factors and determine “what product a

reasonable manufacturer would design.” N.T., 5/9/19, at 114. The trial court

gave a similar instruction about causation, warning the jury that it “may not

consider any negligence – negligence that is lack of due care – with respect

to [Sullivan’s] handling of the scaffold’s warnings or the assembly of the

scaffold.” Id. at 116.

The jury returned a verdict in favor of Sullivan, finding that his injuries

were caused by a design defect in the scaffold.3 Having so found, the jury

awarded Sullivan $2.5 million in monetary damages. After denying

Manufacturer’s motion for post-trial relief under Pa.R.C.P. 227.1, the trial

court granted delay damages of $248,625, bringing the total verdict to

$2,748,625.

Manufacturer timely appealed and now raises three issues for review.

1. Did the trial court abuse its discretion in precluding [Manufacturer] from introducing evidence of compliance with industry safety standard, including evidence of other scaffolds with the same relevant design characteristics as [Manufacturer’s]

3The jury determined the scaffold’s warnings were defective but not a factual cause of Sullivan’s injuries.

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product, especially after [the Sullivans] were permitted to introduce evidence of other scaffolds with dissimilar designs?

2. Did the trial court commit an error of law in instructing the jury that it could not consider any negligence of [Sullivan] and in precluding [Manufacturer] from arguing that [Sullivan’s] conduct was the sole proximate cause of his injuries?

3. Did the trial court abuse its discretion in denying [Manufacturer’s] motion in limine to preclude [Sullivan’s] expert witness opinion testimony and demonstrative evidence videotape, where the expert’s opinions, and the demonstrative evidence videotape, were not based on any facts of record?

Manufacturer’ Brief at 7-8.

II.

Manufacturer first contends that the trial court erred in precluding

evidence that the scaffold complied with government and industry standards.4

Manufacturer asserts that it should have been permitted to introduce evidence

of other scaffolds with deck pins similar in design to those used in its scaffold.

While the parties generally agree that this evidence was inadmissible under

long-standing Pennsylvania case law, they differ over what effect the

Pennsylvania Supreme Court’s decision in Tincher had on the evidentiary

prohibition against government and industry standards evidence in strict

liability cases.

4 “Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.” Waldron Elec. Heating and Cooling, Inc. v. Caseber, 174 A.3d 1123, 1125 (Pa. Super. 2017) (citation omitted).

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Manufacturer argues that Tincher substantially changed strict liability

law, including the prohibition against industry standards evidence. To support

this claim, Manufacturer cites several federal district court cases for the

proposition that, post-Tincher, government and industry standards is

admissible in strict liability cases. These cases, Manufacturer contends,

recognize that Tincher lifted the long-time ban of negligence concepts in strict

liability, like a manufacturer’s compliance with industry standards in designing

a product. Sullivan counters that Tincher did not affect the evidentiary

prohibition, pointing to this Court’s post-Tincher decision in Webb v. Volvo

Cars of North America, LLC, 148 A.3d 473 (Pa. Super. 2016). According to

him, this Court in Webb effectively reestablished the evidentiary prohibition

of industry standards evidence in strict liability actions.

To address this issue, a survey of the case law on the admissibility of

government and industry standards evidence in strict liability actions is

needed. Before Tincher, our courts prohibited industry standards evidence

in strict liability actions. This prohibition began, in part, with our Supreme

Court’s decision in Azzarello v. Black Bros., Co., 391 A.2d 1020 (Pa. 1978)

where our:5

5 Azzarello held that it was improper to introduce negligence concepts into a strict liability case; it was for the court, not a jury, to determine whether a product was “unreasonably dangerous” under the Second Restatement; the

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Supreme Court created a distinct divide between strict liability and negligence claims, by suggesting that negligence concepts have no place in Pennsylvania strict liability doctrine. Specifically, the Azzarello Court had deemed the phrase “unreasonably dangerous” to be negligence rhetoric that would mislead jurors in a strict liability case. Although the Supreme Court reasoned that a jury was permitted to determine whether the product was defective or to resolve any “dispute as to the condition of a product,” the Supreme Court established that the threshold question of whether a product was unreasonably dangerous was to be determined by the trial court. Id. [at 1025].

High v. Pennsy Supply, Inc., 154 A.3d 341, 347 (Pa. Super. 2017).

After Azzarello, our Supreme Court confronted the issue of industry

standards evidence in Lewis v. Coffing Hoist Division, Duff-Norton

Company, Inc., 528 A.2d 590 (Pa. 1987), holding that a trial court did not

err in precluding evidence that the alleged defective product - a control box

for an electric chain-hoist - was widespread in its industry. The Lewis Court

framed its holding around the relevancy of industry standards evidence when

determining whether a product is defective. Id. at 592. Reviewing the

approaches of multiple jurisdictions, the Court emphasized that most courts

have held that “it is the product itself which is on trial, and not the

manufacturer’s conduct.” Id. at 593. This being the case, the Court observed

dispositive question in a case alleging that there was a defective design was whether the product is safe for its intended use; and in such a case, “the seller is the ‘guarantor’ of the product, and a jury could 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.’ ” Tincher, 104 A.3d at 367 (quoting Azzarello, 391 A.2d at 1025-27).

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that industry standards evidence “improperly focuses on the quality of the

defendant’s conduct in making its design choice, and not on the attributes of

the product itself.” Id. at 594 (citing Lenhardt v. Ford Motor Co., 102

Wash.2d 208, 683 P.2d 1097 (1984)). Furthermore, the Court added, “if a

manufacturer’s product has design attributes which make it unsafe for its

intended use, there is no relevance in the fact that such a design is widespread

in the industry.” Id.

Citing Azzarello as support for its holding, the Court stated the

following:

Besides holding that a product is defective when it leaves the supplier’s control lacking any element necessary to make it safe for its intended use, [the Azzarello Court] also concluded, if not expressly, then certainly by clear implication, that negligence concepts have no place in a case based on strict liability.

Id. at 593. Because industry standards evidence went to the reasonableness

of a manufacturer’s conduct in designing the product, Lewis reasoned that

industry standards evidence improperly introduced concepts of negligence into

strict liability. Id. at 594. This evidence, the Court noted, would likely divert

a jury’s attention from the product itself to the manufacturer’s conduct in

designing the product. Id.

We followed the Lewis evidentiary prohibition in Gaudio v. Ford Motor

Co., 976 A.2d 524 (Pa. Super. 2009). In Gaudio, we held that a trial court

correctly applied Lewis in precluding evidence of a manufacturer’s compliance

with industry standards relating to seat belts. Id. at 543. As part of our

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holding, we observed that we had extended the Lewis Court’s rationale for

excluding industry standards evidence to also prohibit the admission of

governmental standards evidence. Id. at 543-44 (citing Sheehan v.

Cincinnati Shaper Co., 555 A.2d 135, 1355 (Pa. Super. 1989) (excluding

OSHA standards) and Majdic v. Cincinnati Machine Co., 537 A.2d 334 (Pa.

Super. 1988) (excluding ANSI standards)).

Together, Lewis and Gaudio established a clear prohibition against

industry and government standards in strict product’s liability. The question

here is what impact Tincher had when it expressly overruled Azzarello and

the strict division of negligence and strict liability. Now to Tincher.

In Tincher, our Supreme Court sought to address criticism from both

within the Court6 and from outside commentators of Azzarello’s idiosyncratic,

“super” strict liability approach7 to products liability claims, as well as to

address agitation to adopt RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. §§ 1-4.

We have described the facts and issues of Tincher.

In Tincher, the plaintiffs sued the defendant manufacturer in negligence and strict liability alleging, among other things, ____________________________________________

6 “[W]e again recognize the continuing state of disrepair in the arena of Pennsylvania strict-liability design defect law.” Beard v. Johnson & Johnson. Inc., 41 A.3d 823, 836 (Pa. 2012).

7 In Lewis, the Court emphasized that in Azzarello, it had taken “another approach,” different from either the “consumer expectations” or risk-utility theories adopted in other states. Lewis, 528 A.2d at 593.

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defectively designed corrugated steel tubing. Tincher, 104 A.3d at 335–36. The plaintiffs alleged the steel tubing, which delivered natural gas to a gas fireplace in their home, melted after a lightning strike and ignited the natural gas inside. Id. The resulting fire caused significant damage to the plaintiff’s home and personal property. Id. Prior to trial, the defendant filed a motion in limine asking the trial court to apply Sections 1 and 2 of the Restatement (Third) of Torts to plaintiffs’ strict liability claim. Id. at 336. The defendant argued, in accord with the Third Restatement, that plaintiff had the burden to prove an alternate, safer design. Id. at 341. The defendant argued that the Third Restatement makes foreseeability of harm relevant to a strict products liability claim. Id. at 342–43. In other words, the defendant believed the reasonableness of its conduct must inform the analysis of the strict products liability claim against it. Id. at 344.

Webb, 148 A.3d at 481-82.

As part of its analysis, Tincher reviewed its post-Azzarello case law

and criticism of the strict separation between negligence and strict liability

concepts in design defect cases. The Court underscored that Section 402A

relieves plaintiffs of the burden of proving the absence of due care in the

manufacturing process. Tincher, 104 A.3d at 371. This did not, however,

necessarily apply in design defect cases in which “the character of the product

and the conduct of the manufacturer are largely inseparable.” Id. (quoting

Phillips v. Crickett Lighters, 841 A.2d 1000, 1015 (Pa. 2003) (Saylor, J.

concurring)). Finding that the separation between negligence and strict

products liability neither reflected the realities of practice nor served the

interests of justice, the Tincher Court overruled Azzarello to the extent that

it was “in tension with the principles articulated in this Opinion.” Id. at 376.

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While it recognized that negligence principles are part of products

liability law, Tincher made clear that it did not mean that those tort principles

were paramount. In examining the historical development of products liability

law, Tincher emphasized significant ways in which products liability law in

tort differed from other negligence-based causes of action. Tincher, 104 A.3d

at 357. It went on to note that products liability law was also underpinned by

contract warranty law, which never had anything to do with negligence

principles. Id. at 357 (“Redress for injury caused by products was available

in tort ... or by asserting breach of warranty claims.”).

Despite overruling Azzarello, the Tincher Court declined to adopt the

Third Restatement, holding instead that a plaintiff may prove a product is

defective by showing that either: (1) “the danger is unknowable and

unacceptable to the average or ordinary consumer” (“consumer expectations

standard”); or (2) “a ‘reasonable person’ would conclude that the probability

and seriousness of harm caused by the product outweigh the burden or costs

of taking precautions” (“risk-utility standard”). Id. at 385–91 (citations

omitted).8

8 We note that RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 4 deals with evidentiary value of governmental and administrative standards and provides that:

In connection with liability for defective design or inadequate instructions or warnings:

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Under the risk-utility standard, which is the theory that Sullivan

proceeded under at trial, there are seven factors for the factfinder to balance

when determining whether a product is defective.

(1) the usefulness and desirability of the product – its utility to the user and the public as a whole;

(2) the safety aspects of the product – the likelihood that it will cause injury, and the probable seriousness of the injury;

(3) the availability of a substitute product which would meet the same need and not be as unsafe;

(4) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;

(5) the user’s ability to avoid danger by the exercise of care in the use of the product;

(6) the user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and

(7) the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. ____________________________________________

(a) a product’s noncompliance with an applicable product safety statute or administrative regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation; and

(b) a product’s compliance with an applicable product safety statute or administrative regulation is properly considered in determining whether the product is defective with respect to the risks sought to be reduced by the statute or regulation, but such compliance does not preclude as a matter of law a finding of product defect.

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Id. at 398-99 (quoting John W. Wade, On the Nature of Strict Tort Liability

for Products, 44 Miss. L. J. 825, 837-38 (1973)). Tincher also returned the

question of whether a product is “unreasonably dangerous” decided by the

trial court under Azzarello back to the jury to be determined under the tests

set forth above.

Relevant to this appeal, while Tincher discussed Lewis, it did not

overrule it, nor any other cases besides Azzarello. Anticipating the impact

that its decision to overrule Azzarello would have, the Supreme Court in

Tincher gave a disclaimer about the effect of its decision on related legal

issues in strict liability.

We recognize—and the bench and bar should recognize—that the decision to overrule Azzarello and articulate a standard of proof premised upon alternative tests in relation to claims of a product defective in design may have an impact upon other foundational issues regarding manufacturing or warning claims, and upon subsidiary issues constructed from Azzarello, such as the availability of negligence-derived defenses, bystander compensation, or the proper application of the intended use doctrine. Accord Bugosh [v. I.U. North America, Inc., 971 A.2d 1228, 1244–45 & 1248–49 (3d Cir. 2009)]. These considerations and effects are outside the scope of the facts of this dispute and, understandably, have not been briefed by the [the parties].

This Opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings. In light of our prior discussion, the difficulties that justify our restraint should be readily apparent.

Tincher, 104 A.3d at 409-10.

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C.

In Webb, we considered Tincher’s impact on the formerly well-

established Lewis/Gaudio prohibition against government or industry

standards evidence in strict liability cases. There, the trial court instructed a

jury that it was allowed to consider federal motor vehicle safety standards in

a strict products liability action even though the court had dismissed the

plaintiff’s negligence claims. After the jury returned a verdict for the

manufacturer on strict liability, plaintiff appealed to argue that the trial court’s

jury instruction improperly injected negligence concepts into its strict liability

claim. Webb, 148 A.3d at 477-78.

To address plaintiff’s issue, Webb summarized the state of the law on

the issue after Tincher.

To summarize, Azzarello, with its strict prohibition on introducing negligence concepts into strict products liability claims, is no longer the law in Pennsylvania. The rule presently at issue—the prohibition of government or industry standards evidence in a strict products liability case—clearly has its genesis in the now- defunct Azzarello regime. The Lewis and Gaudio Courts both relied primarily on Azzarello to support the preclusion of government or industry standards evidence, because it introduces negligence concepts into a strict liability claim.

Id. at 482-83.

Plaintiff argued that the Lewis/Gaudio evidentiary prohibition

remained good law because Tincher did not expressly overrule either case.

We essentially agreed, although with some qualification.

We conclude that the overruling of Azzarello does not provide this panel with a sufficient basis for disregarding the evidentiary

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rule expressed in Lewis and Gaudio. While it is clear after Tincher that the firm division between strict liability and negligence concepts no longer exists, it is not clear that the prohibition on evidence of government or industry standards no longer applies. Lewis, in particular, noted that a defective design could be widespread in an industry. Lewis, 528 A.2d at 594. The Tincher opinion does not undermine that rationale for excluding governmental or industry standards evidence. Furthermore, Tincher expressed two theories of strict products liability— consumer expectations and risk-utility. It is possible that government/industry standards evidence could be admissible under both theories, one and not the other, or neither. It is also possible that the admissibility of such evidence will depend upon the circumstances of a case. The Tincher Court noted the possibility of shifting the burden of production and persuasion to the defendant under the risk-utility theory. This burden shift, if it becomes law, may provide defendants a basis to advocate for the admissibility of government or industry standards evidence in risk-utility cases.

These contingencies illustrate that Tincher will affect every stage of future products liability cases. Post-Tincher, parties must tailor their pleadings, discovery, and trial strategy to one or both of the new theories of liability. We believe the continued vitality of the prohibition on government and industry standards evidence is a question best addressed in a post-Tincher case.

Webb, 148 A.3d at 483.

We concluded that the trial court should have instructed the jury to

disregard the federal standards evidence once it dismissed the negligence

claims that were the basis for the evidence’s relevance in the first place. Id.

at 484.

In the years after Webb, this Court has had little opportunity to

readdress whether the Lewis/Gaudio evidentiary prohibition remained good

law. We briefly discussed the issue in Renninger v. A & R Machine Shop,

163 A.3d 988 (Pa. Super. 2017), a case that involved a challenge to the

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admission of federal standards evidence in a strict liability case. Without

deciding whether the trial court committed error, we held that the admission

was harmless based on the jury’s verdict, noting that neither party on appeal

offered substantive argument for the admission or exclusion of industry or

governmental standards evidence post-Tincher. Id. at 1000.

Most recently, in Dunlap v. Federal Signal Corp., 194 A.3d 1067 (Pa.

Super. 2018), we discussed the evidentiary prohibition in the context of a

strict liability action brought by a group of firefighters alleging that they

suffered hearing loss from their firetrucks’ sirens. Proceeding under the risk-

utility standard for its design defect claim, the plaintiffs retained an expert

who believed there was a safer alternative design for the sirens that could

meet industry standards yet avoid causing hearing damage. Id. at 1068. The

trial court, however, dismissed the claim on summary judgment by finding

that the industry standards evidence was not enough to establish that the

expert’s proposed alternative design met the third factor for risk-utility: the

availability of a substitute product which would meet the same need and not

be as unsafe. The plaintiffs’ industry standards evidence, therefore, was not

enough to prove that an alternative design would provide as much protection

to motorists and pedestrians as the manufacturer’s siren. Id. at 1068-69.

On appeal, we affirmed. In finding that the putative industry standards

evidence was insufficient, we observed that the Webb panel concluded that

Tincher, despite overruling Azzarello, did not provide a sufficient basis for

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disregarding the Lewis/Gaudio evidentiary rule “that a product’s compliance

with government standards is irrelevant and inadmissible in a strict products

liability action.” Id. at 1072. In particular, we noted, the Webb panel

concluded that Tincher did not undermine the Lewis rationale for the

industry standards prohibition, specifically, that a product could be defective

yet still widespread in an industry. Id. at 1073. As a result, Dunlap agreed

with the trial court that the plaintiff firefighters needed more evidence on the

effectiveness of the alternative design beyond that it met industry standards.

Id. We note, though, that the issue in Dunlap was not whether industry

standards evidence is admissible, but whether the plaintiffs had made out a

prima facie case that a safer alternate design was available to the

manufacturer.

D.

Manufacturer contends that Tincher allows the introduction of

government and industry standards, building its argument not on

Pennsylvania case law but around several federal district court decisions.

Under this view, these cases show that, post-Tincher, manufacturers can

admit relevant government and industry standard evidence in strict liability

cases. Manufacturer’s Brief at 33. At the outset, though, we note that federal

district court decisions, as well as those by federal Courts of Appeal, are not

binding on Pennsylvania courts. Dietz v. Chase Home Finance, LLC, 41

A.3d 882, 886 n.3 (Pa. Super. 2012).

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Among Manufacturer’s cited cases, the most persuasive is Cloud v.

Electrolux Home Products, Inc., 2017 WL 3835602 (E.D. Pa. 2017). There,

a district court had to determine whether a manufacturer could introduce

evidence of compliance with ANSI standards to defend against a strict

products liability claim. Id. at *1. Holding the evidence would be relevant,

the court emphasized that under Tincher, the risk-utility standard gives

“courts an opportunity to analyze post hoc whether a manufacturer’s conduct

in manufacturing or designing a product was reasonable, which clearly reflects

the negligence roots of strict liability.” Id. at *2 (quoting Tincher, 104 A.3d

at 389). It then went on to state that the distinction between negligence and

strict products liability espoused in Lewis was “in tension” with the holding in

Tincher that a manufacturer’s conduct and reasonableness is relevant to

whether a product is defective. Id. The district court found that the proposed

evidence, while not dispositive, was relevant and probative to the plaintiffs’

strict products liability case. Id.9

9 We are less persuaded by the other two cases that Manufacturer cites. In Vitale v. Electrolux Home Products, Inc., 2018 WL 3868671 (E.D. Pa. 2018), the district court denied a pretrial motion to exclude industry standards evidence, in part, because the plaintiffs asserted both negligence and strict liability claims. Id. at *3. In the other case, Rapchak v. Haldex Brake Products Corp., 2016 WL 3752908 (W.D. Pa. 2016), the district court held that it was premature to rule on whether industry standards evidence could be admissible because plaintiff had not yet identified what evidence she believed defendant manufacturer intended to introduce. Id. at *3.

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However, not all district courts that have looked at this issue have

reached the same conclusion. In Mercuio v. Louisville Ladder, Inc., 2019

WL 1657325 (M.D. Pa. 2019), that district court considered a plaintiff’s pretrial

motion to preclude evidence of the manufacturer’s compliance with industry

standards in its design of a ladder. Id. at *2. After an exhaustive review of

Pennsylvania case law on the issue, including Webb and Dunlap, the district

court concluded that “no lower Pennsylvania Court has provided a definitive

ruling on the ongoing vitality of the evidentiary rule now before the Court.”

Id. at *7. On one hand, that court observed, “to adhere to the strict

prohibition of such evidence based on the Lewis/Gaudio rule does not

comport with the dicta contained in Tincher and Webb or the Superior Court’s

tacit acknowledgment in Renninger and Dunlap that the issue remained

unresolved.” Even so, the district court still ruled that unless the plaintiff

opens the door, evidence of compliance with government or industry

standards would be inadmissible at trial, adding that its ruling was consistent

“with the agreement of both the majority and dissent in Dunlap that Webb

recognized that Tincher did not abrogate the accepted notion that defective

design can be widespread in an industry, and that compliance with industry

standards is not proof of non-defectiveness[.]” Id. (citation omitted).

E.

Having reviewed the relevant Pennsylvania case law, we make a few

observations. First, notwithstanding suggested interpretations of Tincher

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that would make products liability law negligence-based on the due care of

the manufacturer in designing or manufacturing the product, strict liability is

still the standard to be used in determining whether a product is

“unreasonably dangerous” in Pennsylvania. Under the RESTATEMENT (SECOND)

§ 402A formulation, a product can be designed and manufactured with “all

possible care” but still be defective. Manufacturer liability then depends on

the product’s dangers, not on the reasonableness of the manufacturer’s

conduct in designing or manufacturing the product.

Under the Section 402A standard, knowledge of the product’s danger is

imputed to the manufacturer in the design and manufacturing of the product

no matter how foreseeable the defect was or how reasonable its conduct in

the design and manufacture. If imputation of knowledge of the danger to the

manufacturer is eliminated by the standard as to whether the manufacturer

could have reasonably foreseen the risks of the product, that has the same

effect as eliminating liability without negligence on the part of the

manufacturer. In other words, strict liability would be eliminated, something

that Tincher did not do.

Reasonableness or foreseeability may be taken into consideration in

other aspects of liability such as “negligence-derived defenses, bystander

compensation, or the proper application of the intended use doctrine.”

Tincher at 409. Generally, those concepts may be used in determining

whether, in light of its inherent dangers, the product fails to satisfy either

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discernable consumer expectations of safety or a risk/utility analysis.

Negligence principles are not used in determining whether the manufacturer

exercised due car in the design and manufacture of the product.

Second, the Supreme Court’s decision in Tincher to overrule Azzarello

did cast some doubt on the Lewis/Gaudio evidentiary prohibition against

government and industry standards evidence in strict liability actions.

However, Tincher does not cast any more doubt on that principle than any

other decision issued while Azzarello was extant. Tincher foresaw that its

holding could impact subsidiary issues derived from Azzarrello. It advised,

“[t]he common law regarding these related considerations should develop

within the proper factual contexts against the background of targeted

advocacy.” Tincher, 104 A.3d at 409. Following Tincher, however, no

Pennsylvania court has held that Tincher, in overruling the Azzarello

paradigm, has implicitly overruled Lewis/Gaudio just because our Supreme

Court disavowed the strict separation of negligence concepts from strict

products liability law.

A final and important observation. In Tincher, after overruling

Azzarello, our Supreme Court remanded the case to the trial court with

instructions to reconsider the post-trial motions pursuant to Section 402A of

the RESTATEMENT (SECOND) OF TORTS. Tincher at 136. In other words, in

addressing issues involving products liability, our touchstone is Section 402A.

RESTATEMENT (SECOND) OF TORTS § 402A(2)(a) provides that strict liability is

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established, notwithstanding that the “the seller has exercised all possible care

in the preparation and sale of his product.” Whether a manufacturer has

complied with industry or government standards goes to whether it “exercised

all possible care in preparation of product” in making the design choice, not

on whether there was a design defect in the product itself.

Under the above-quoted provision of the RESTATEMENT (SECOND), it is

irrelevant if a product is designed with all possible care, including whether it

has complied with all industry and governmental standards, because the

manufacturer is still liable if the product is unsafe. This highlights:

The fundamental problem with a state of the art [industry standard] defense is that it is all about the character of the manufacturer/distributor’s conduct, not the product’s safety. In essence, it boils down to an assertion by the defendant roughly to this effect: “Sure, the product may be dangerous, but we did everything we reasonably could to make it safe, everything that was done by other manufacturers/distributors in our industry. Our product was as good as it could be given the state of the art at the time.” This is a due care defense, pure and simple, and it sounds in negligence. It deflects attention away from the condition of the product toward the conduct of the defendant. Like many due care arguments, it relies on compliance with industry standards or custom (that is, the “state of the art”) as a means of showing due care. It is entirely inconsistent with Section 402A’s principle that a product can be defective, even if a manufacturer/distributor exercised “all possible care” in its creation and sale. A defendant who asserts compliance with the “state of the art” is simply maintaining that the defendant has exercised reasonable (or perhaps, though not necessarily, all possible) care with respect to the product’s design, but under the governing principles of Section 402A that clearly should not be an available defense.

Ellen Wertheimer & Mark C. Rahdert, The Force Awakens: Tincher, Section

402a, and the Third Restatement in Pennsylvania, 27 Widener Commonwealth

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L. Rev. 157, 210 (2018). Under such reasoning, evidence of industry

standards may be excluded because those standards do not go to the safety

of the product itself but to the manufacturers’ “possible care in preparation of

product,” which is irrelevant to whether a product is unsafe or strict liability is

established.

F.

Returning to this appeal, it is important to remember that what is

involved is not a negligence concept but whether the trial court erred in

excluding evidence - a function that is well within its sound discretion and one

which we will not question unless it was manifestly unreasonable. While we

agree with Webb that our Supreme Court may allow industry and

governmental standards in a manner suggested by the RESTATEMENT (THIRD) in

the future, until it does, Tincher neither explicitly nor implicitly overrules the

exclusion of industry standards in a products liability case. Moreover, as

explained above, the language of RESTATEMENT (SECOND) OF TORTS § 402A(2)(a)

provides sufficient reason to exclude such evidence. Accordingly, the trial

court’s decision to exclude such evidence was not unreasonable.10

10Appellants also argue that Sullivan “opened the door” to industry standards evidence because he elicited testimony about other scaffolds’ deck pins. Appellants’ Brief at 42. Appellants’ argument, however, consists of two paragraphs with no analysis of the trial record or supporting case law. See Pa.R.A.P. 2119(a) (stating that the argument must include “such discussion and citation of authorities as are deemed pertinent.”); Commonwealth v. McMullen, 745 A.2d 683, 689 (Pa. Super. 2000) (stating that “[w]hen the

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III.

Manufacturer next contends that the trial court erred in instructing the

jury that it could not consider whether Sullivan was negligent in determining

defectiveness or causation. By so instructing, Manufacturer asserts, the trial

court prevented it from arguing that Sullivan was the sole cause of the

accident. Manufacturer insists that the trial court should have allowed them

to argue that Sullivan was negligent for failing to properly seat the platform

within the side rails and engage the deck pins, as this is the only explanation

for how the accident could have happened.11

appellant fails to adequately develop his argument, meaningful appellate review is not possible.” (citation omitted)). Without a developed argument on this issue, we need not address whether a defendant manufacturer can introduce evidence of compliance with industry standards to rebut a plaintiff’s design defect claim under the risk-utility standard.

11 Our standard of review for a challenge to jury instructions is well- established:

Our standard of review regarding jury instructions is limited to determining whether the trial court committed a clear abuse of discretion or error of law which controlled the outcome of the case. Error in a charge occurs when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Conversely, a jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations.

The proper test is not whether certain portions or isolated excerpts taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not

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This issue centers on to what extent a plaintiff’s ordinary negligence can

be asserted as a defense in a strict product’s liability action. Generally, a

defendant cannot use contributory negligence concepts to excuse a product’s

defect or reduce recovery by comparing fault in a strict product’s liability

action. Kimco Development Corp. v. Michael D’s Carpet Outlets, 637

A.2d 603, 606-07 (Pa. 1993). On the other hand, however, a plaintiff’s

conduct is not always irrelevant in strict liability. Childers v. Power Line

Equipment Rentals, 681 A.2d 201, 207 (Pa. Super. 1996). Indeed,

“[i]nquiry into the plaintiff’s use of the product may be relevant as it relates

to causation.” Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508 (Pa.

Super. 1998) (citation omitted).

Accordingly, there are limited exceptions to when the plaintiff’s conduct

may be relevant, including “evidence of a plaintiff’s voluntary assumption of

the risk, misuse of a product, or highly reckless conduct is admissible insofar

as it relates to the element of causation.” Clark v. Bil-Jax, Inc., 763 A.2d

error was committed and whether that error was prejudicial to the complaining party.

In other words, there is no right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law.

Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (internal citations and quotation marks omitted).

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920, 923 (Pa. Super. 2000) (quoting Charlton v. Toyota Industrial

Equipment, 714 A.2d 1043, 1047 (Pa. Super. 1998)).

Unlike these exceptions, “evidence of a plaintiff’s ordinary negligence

may not be admitted in a strict products liability action ... unless it is shown

that the accident was solely the result of the user’s conduct and not related in

any [way] with the alleged defect in the product.” Id. Put differently, “a

user’s negligence is not relevant if the product defect contributed in any way

to the harm.” Madonna, 708 A.2d at 509.

In their brief, Manufacturer reviews much of this same precedent in

arriving at the conclusion that Pennsylvania’s strict products liability law, even

before Tincher, allowed a manufacturer to argue that a plaintiff’s negligence

was the sole proximate cause of his injuries.12 Manufacturer contends that it

should have been allowed to argue that Sullivan was solely responsible for

causing the accident by negligently failing to properly assemble the scaffold

and seat the platform within the side rails with the deck pins engaged.13

12Manufacturer also argues that the trial court should have allowed them to argue that Sullivan misused the product in failing to properly assemble it. Manufacturer’s Brief at 54. No substantive argument, however, is provided beyond this bald contention.

13 In their reply brief, Manufacturer asserts that the trial court erred in precluding their engineering expert from testifying that the cause of Sullivan’s accident was his failure to assemble the product properly and seat the platform within the side rails correctly. Manufacturer’s Reply Brief at 6, 11- 12. Manufacturer, however, did not raise this claim in their initial brief. Our Rules of Appellate Procedure make clear that an “appellant may file a brief in

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We agree with the Manufacturer to the extent that a defendant can

admit evidence and argue that a plaintiff’s ordinary negligence was the sole

cause of an accident in a strict product’s liability case. Manufacturer, however,

ignores that this is allowed only when the accident was “not related in any

with the alleged defect in the product.” Clark, supra. Manufacturer, though,

premises its theory of Sullivan’s negligence on their contention that he failed

“to properly assemble the product and/or seat the platform within the side

rails, then engage the deck pins[.]” Manufacturer’s Brief at 47. As a result,

Manufacturer’s claim fails by its own terms because the alleged negligence

directly relates to the product itself and how Sullivan assembled it, including

the alleged defective deck pins and platform. Put another way, Manufacturer’s

theory of negligence - that Sullivan did not properly assemble the scaffold -

did not preclude the possibility that a product defect contributed to the

accident.

To illustrate, in Madonna, the plaintiff crashed while riding a motorcycle

and sued under a theory of strict product’s liability, alleging that a bolt on the

front wheel’s brake was defective. Madonna, 708 A.2d at 508. At trial,

defendant Harley Davidson offered evidence that plaintiff was intoxicated at

reply to matters raised by appellee’s brief not previously raised in appellant’s brief.” Pa.R.A.P. 2113(a). Succinctly, an appellant cannot raise new issues in a reply brief. Reginelli v. Boggs, 181 A.3d 293, 307, n.15 (Pa. 2018) (citation omitted).

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the time of the accident and that the bolt was working properly on the

motorcycle. Id. On appeal, plaintiff argued that Harley Davidson had

improperly injected negligence evidence into his strict liability action. We

disagreed and found the admission proper because the evidence was admitted

to show that the accident resulted solely from plaintiff’s intoxication, which

was unrelated in any way to the product. Id. at 509. We found no error and

affirmed judgment. Id.

In contrast, in Charlton, the plaintiff was injured when a coworker

backed over his foot with a forklift. Plaintiff sued the forklift’s manufacturer

and claimed that it was defective because its gas tank obstructed the driver’s

rear view, lacked rear view mirrors and had no alarm system for when the

forklift was in reverse. Charlton, 714 A.2d at 1045. During trial, the court

allowed the defendant manufacturer to admit evidence that plaintiff and the

forklift’s driver failed to pay attention to each other. Id. at 1047. We found

that this was not enough to allow defendant to argue that plaintiff’s negligence

was the sole cause of his injuries. Significantly, we noted, defendant could

not show that plaintiff’s injures resulted solely from his and the driver’s

“careless conduct” rather than the alleged defects in the forklift. Id. at

1048.14

14In support of this argument, Manufacturer relies heavily on Foley v. Clark Equipment Co., 523 A.2d 379 (Pa. Super. 1987). There, in facts much like Charlton, we held that evidence of the plaintiff and forklift driver’s

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As these cases show, a defendant cannot argue that a plaintiff’s ordinary

negligence was the sole cause of an accident unless it is unrelated to the

product. Manufacturer’s theory of Sullivan’s negligence - that he did not set

up the scaffold correctly - directly relates to the product. Despite this

requirement being spelled out in our case law, Manufacturer does not address

it in their argument, failing to explain how Sullivan’s alleged failure to properly

assemble the scaffold showed that none of the alleged product defects

contributed in any way to the accident.

Accordingly, the trial court did not err in preventing Manufacturer from

arguing that Sullivan’s conduct was the sole cause of the accident. We also

find the trial court did not abuse its discretion in instructing the jury it could

not consider Sullivan’s conduct, as it accurately explained the law based on

its holding as to negligence.

IV.

Finally, Manufacturer raises two challenges to the trial testimony of

Rasnic, who, as we explained earlier in our facts section, was Sullivan’s

inattentiveness was relevant to causation. Id. at 394. In Charlton, however, we found Foley to be of little precedential value and stated the following: “[t]o the extent Foley stands for the proposition that a plaintiff’s ordinary negligence is admissible in a strict liability action,” it contradicted our Supreme Court’s subsequent decision in Kimco about negligence concepts being used in strict liability cases. Charlton, 714 A.2d at 1048, n.6. We agree with this statement and note that the Third Circuit has as well. See Parks v. AlliedSignal, Inc., 113 F.3d 1327, 1335 (3d Cir. 1997) (stating Foley deviates from Pennsylvania strict products liability law).

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mechanical engineering expert. First, Manufacturer contends that his opinion

about the cause of the accident lacked an adequate factual foundation.

Second, Manufacturer asserts that the trial court should have not allowed

Sullivan to show the jury the videotape of Rasnic’s testing of the scaffold.

Before addressing whether Rasnic’s opinion lacked a factual foundation,

we address whether Manufacturer waived this claim as Sullivan contends in

his brief. As noted earlier, Manufacturer filed a pretrial motion to bar Rasnic’s

expert opinion testimony. Manufacturer argued that Rasnic’s opinion - that

the platform collapsed after the deck pins must have become disengaged -

was impermissibly speculative and lacking factual support. Manufacturer

presented this argument on the first day of trial, but the trial court was

unpersuaded and denied the motion.

THE COURT: Well, there’s the absence of any other -- and again, this all goes to weight, in the absence of other obvious reasons. And given the fact that even your witnesses concede it could happen, I think that’s enough to allow it to go to the jury, but we’ll see later on.

[MANUFACTURER]: Okay.

THE COURT: So, that motion is denied.

N.T., 4/29/19, at 16-17.

Manufacturer did not renew their objection later during trial when Rasnic

testified. Consequently, Rasnic testified with no objection that the scaffold

was defective and caused the accident based on Sullivan’s testimony of what

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happened. Manufacturer raised the issue in their motion for post-trial relief

that the trial court denied. When Manufacturer raised it again in their court-

ordered Pa.R.A.P. 1925(b) statement, the trial court found no waiver, instead

finding that there was proper factual basis for Rasnic’s opinions. As a result,

the trial court held, “the jury was free to accept the facts as presented,” as

well as Rasnic’s opinion that rested on them in finding that the defective

scaffold caused the accident. T.C.O. at 8 (unpaginated).

Pennsylvania Rule of Evidence 103 addresses waiver of issues raised in

pretrial motions.

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or motion in limine; and

(B) states the specific ground, unless it was apparent from the context

***

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Pa.R.E. 103. “A motion in limine may preserve an objection for appeal without

any need to renew the objection at trial, but only if the trial court clearly and

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definitively rules on the motion.” Blumer v. Ford Motor Co., 20 A.3d 1222,

1232 (Pa. Super. 2011).

We find no waiver based on Manufacturer’s failure to reassert its pretrial

objection to Rasnic’s expert opinion. While remarking that “we’ll see later on,”

the trial court denied the motion in limine after stating that it ultimately felt

Manufacturer’s arguments went more to weight than admissibility. Despite

Manufacturer not renewing their objection during trial, the trial court elected

not to find waiver in its subsequent Pa.R.A.P. 1925(a) statement, electing

instead to address the merits of the claim and reiterate its reasoning that it

stated when the motion was argued. We do the same and address the merits

of Manufacturer’s claim.15

Manufacturer believes that Rasnic’s opinion had no factual foundation

because there was no evidence that the deck pins became disengaged or that

the platform became unseated from the side rails. Manufacturer believes that

trial court erred in allowing Rasnic to offer the following opinions.

Q: Mr. Sullivan testified a little bit more in detail during the trial on Monday, and I just want to have you assume he testified as follows: That when he assembled the scaffold, he believed that the platform was fully seated into the side rails, that the deck pins were fully engaged. He then went [on to] perform tasks associated with his job duties that day, which included climbing the scaffold, receiving materials that were slid to him in front of him by a coworker, walking on the platform from end-to-end to ____________________________________________

15“Decisions regarding admission of expert testimony, like other evidentiary decisions, are within the sound discretion of the trial court.” Weiner v. Fisher, 871 A.2d 1283, 1285 (Pa. Super. 2005) (citation omitted). “We may reverse only if we find an abuse of discretion or error of law.” Id.

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take measurements and install sheeting to metal studs. Then climbing down the scaffold, relocating it after unlocking the wheels, [setting] it up in its new location and locking the wheels, and then climbing back onto it. There was testimony that that happened, all of those steps happened with repetition at least three times before his accident.

First off, do you have an opinion within a reasonable degree of engineering certainty that what I just described for you is a foreseeable use of Werner’s SRS 72 scaffold?

A: I do.

Q: Do you have an opinion within a –

A: Excuse me, and the answer is yes.

Q: Thank you for catching that. Do you have an opinion within a reasonable degree of engineering certainty that this foreseeable use that I just described for you could lead to a situation where the platform becomes dislodged resulting in the platform falling through along with the user, like Mr. Sullivan?

A: I do. The answer is yes.

Q: Do you have an opinion within a reasonable degree of engineering certainty that the defective condition that you highlighted for the jury, I should say defective conditions … was the proximate cause of Mr. Sullivan’s June 26, 2015 accident?

A: I do, and the answer is yes.

N.T., 5/1/19, at 148-49.

It is well settled that expert testimony is incompetent if it lacks an adequate basis in fact. The expert is allowed only to assume the truth of testimony already in evidence. While an expert’s opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence. This means that expert testimony cannot be based solely upon conjecture or surmise. An expert must do more than guess. His ... assumptions must be based upon such facts as the jury would be warranted in finding from the evidence.

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Nazarak v. Waite, 216 A.3d 1093, 1111 (Pa. Super. 2019) (citations

omitted).

All the facts that Rasnic assumed were true came from Sullivan’s trial

testimony. First, Sullivan testified that he assembled the scaffold like he had

done “hundreds” of times before. N.T., 4/29/19, at 102. After doing so, he

was satisfied that he had assembled everything correctly, which included

ensuring that “the platform was appropriately secured by resting in the side

rail lips and the deck pins engaged.” Id. at 104. After rolling the scaffold to

the wall, Sullivan performed the necessary tasks for installing the sheathing.

This included climbing up the scaffold’s rungs, having Bentzley slide up the

DensGlass pieces, and then walking on the platform’s surface to take the

measurements. Id. at 110-115. After doing this, Sullivan would climb back

down the scaffold and do it again two times before installing the third piece.

Id. at 116-17. Rasnic concluded that these actions - all of which Sullivan

testified to - could lead to the deck pins being rotated off and the platform

then becoming unseated.

As a result, all the facts that supported Rasnic’s opinion were supported

by Sullivan’s testimony; whether that opinion was incredible was a matter left

to the jury to decide rather than the trial court, which did not abuse its

discretion in deciding to allow Rasnic to give his expert opinion. Thus, we find

that the first challenge to Rasnic fails.

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Finally, Manufacturer contends that the trial court erred in allowing the

jury to view the videotape of Rasnic’s testing of an exemplar scaffold in his

workshop. “Generally, demonstrative evidence is admissible if its probative

value outweighs the likelihood of improperly influencing the jury.” Pascale

v. Hechinger Co. of Pa., 627 A.2d 750, 755 (Pa. Super. 1993) (citations

omitted). “Conditions must be sufficiently close to those involved in the

accident to make the probative value of the demonstration outweigh its

prejudicial effect.” Id.

First, as we briefly described earlier, the video shows an already-

assembled Werner SRS-72 scaffold set at its top height. After unlocking the

wheels, Rasnic unseats the platform and shows the weld protrusion on the

platform’s corner. He shakes the scaffold several times with the platform

unseated and the deck pins rotated off, showing that the platform remains out

of the frame. He then does the same thing but after engaging the deck pins,

showing again that the platform remains unseated after being jarred. With

the platform still unseated in one corner, Rasnic climbs a ladder and gets on

the platform while holding onto the ceiling. Right after kicking off one deck

pin, the platform collapses when he steps on it. Rasnic does the same thing

a second time, but has to apply much more force while hanging from the

ceiling.

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Like their preceding argument, Manufacturer asserts that his testing

depicted in the videotape lacked a factual foundation on record evidence.

Manufacturer argues that Rasnic incorrectly set up the scaffold, seating the

platform outside the side rails’ lip. Rasnic then applied abnormal force despite

there being no evidence that this, in fact, was what happened. As a result,

Manufacturer asserts, it was prejudicial to show the jury the videotaped

testing because it depicted a platform collapse under different circumstances

than those in Sullivan’s version of events. In Manufacturer’s view, the testing

was manipulative and misleading.

Based on our review, the trial court did not abuse its discretion in

allowing the jury to view the videotape of Rasnic’s testing. First, Manufacturer

focuses only on those aspects of the testing that conflict with their theory of

what happened, ignoring the probative aspects that supported Sullivan’s

theory of how the accident happened. To this end, the video shows how the

weld protrusion on the one corner could prevent the platform from being

seated in the side rails after it became unseated. The testing also showed

how a user could unknowingly disengage the deck pins and unseat the

platform, which would then collapse when the user steps on it. This result is

particularly evident in the depiction of the first collapse in the video. All of

this was probative to rendering Rasnic’s testimony more comprehensible to

the jury, which is one of the purposes of demonstrative evidence. Here, the

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videotape served that purpose, helping Rasnic explain and show for the jury

how he reached his conclusions. N.T., 5/1/19, at 136-147.

Nor do we find that the likelihood of the video improperly influencing the

jury outweighed its probative value. Manufacturer’s main argument is that

the testing was not close enough to the conditions of the accident. While

Manufacturer raises several salient points about how the testing did not depict

what they believe happened, they raised and developed all those points during

their thorough cross-examination. Thus, to the extent there were differences

between the testing and Sullivan’s description of what happened,

Manufacturer could develop those differences through cross-examination and

then implore the jury to discount the videotape’s value in depicting what

happened.

Accordingly, the trial court did not abuse its discretion in permitting

Sullivan to show the videotape as part of Rasnic’s testimony, and for the

foregoing reasons, the judgment is affirmed.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/15/2021

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