2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-13-2009

John Clevenger v. CNH Amer LLC

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2872

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Recommended Citation

"John Clevenger v. CNH Amer LLC" (2009). 2009 Decisions. Paper 825.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/825
 Honorable Nora Barry Fischer, United States District Judge for the Western District *

of Pennsylvania, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2872

 

JOHN E. CLEVENGER; CAROL L. CLEVENGER, husband and wife,

Appel lants

v.

CNH AMERICA, LLC

 

Appeal from the United States District Court for the Middle District 

of Pennsylvania 

(D.C. Civil No. 1-06-cv-1006)

District Judge: Honorable Sylvia H. Rambo 

 

Submitted Under Third Circuit LAR 34.1(a)

May 14, 2009

Before: AMBRO and ROTH, Circuit Judges and FISCHER , District Judge *

(Opinion filed: August 13, 2009)

 

OPINION

 

FISCHER, District Judge 

Plaintiffs John and Carol Clevenger appeal the District Court’s denial of their
 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have 1

jurisdiction pursuant to 28 U.S.C. § 1291.

2

motion for a new trial. For the following reasons, we will affirm. 

I.

Because we write for the parties, who are familiar with the facts of record, we set

forth only those facts pertinent to the resolution of the instant appeal. After Mr. 1

Clevenger suffered an injury exiting a Case 85XT skid steer loader manufactured by

defendant CNH America, LLC, the Clevengers brought this lawsuit under a strict

products liability theory, alleging that the safety interlock system on the skid steer loader

was defectively designed. A jury trial was conducted over four days and a verdict was

rendered in favor of CNH, with the jury indicating on a special verdict slip that the skid

steer loader was not defective as designed. As a result, the jury did not reach a

conclusion as to other issues in the case. The Clevengers’ subsequent motion for a new

trial was denied by the District Court and this appeal followed.

II.

The Clevengers contend that the District Court committed several errors in its

instructions to the jury and evidentiary rulings. “The standard of review on a motion for a

new trial is ‘abuse of discretion unless the [district] court’s denial of the motion is based

on application of legal precept, in which case our review is plenary.” Curley v. Klem, 499

F.3d 199, 206 (3d Cir. 2007) (quoting Honeywell, Inc. v. Am. Standards Testing Bureau,
3

Inc., 851 F.2d 652, 655 (3d Cir. 1988)). 

III.

With respect to jury instructions, the Clevengers contend that a new trial is

warranted because the District Court’s charge (1) misdefined the concept of “intended

use” under Pennsylvania strict product liability law, (2) conflated “intended use” with

causation, (3) improperly mentioned the concept of assumption of risk, and (4)

improperly focused the jury on Mr. Clevenger’s conduct instead of CNH’s allegedly

defective product. We review jury instructions for abuse of discretion, but exercise

plenary review “when the question is whether a district court’s instructions misstated the

law.” Felix de Asencio v. Tyson Foods, Inc., 500 F.3d 361, 366 (3d Cir. 2007) (quoting

United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005)), cert. denied, 128 S. Ct. 2902

(2008). “The charge, taken as a whole and viewed in light of the evidence, must fairly

and adequately submit the issues in the case to the jury.” Tigg Corp. v. Dow Corning

Corp., 962 F.2d 1119, 1123 (3d Cir. 1992) (quoting Link v. Mercedes-Benz of N. Am., 788

F.2d 918, 920 (3d Cir. 1986)) (internal brackets omitted). 

The parties agree that Pennsylvania strict products liability law governs the

substantive aspects of this dispute. To bring a successful design defect claim pursuant to

that law, a plaintiff must prove, inter alia, “that the product was defective . . . [and] the

defect was a proximate cause of the plaintiff’s injuries.” Davis v. Berwind Corp., 690

A.2d 186, 190 (Pa. 1997). A product is defectively designed when it “lack[s] any element
4

necessary to make it safe for its intended use or possess[es] any feature that renders it

unsafe for the intended use.” Azzarello v. Black Bros. Co., 391 A.2d 1020, 1027 (Pa.

1978). Consequently, “there is no strict liability in Pennsylvania relative to non-intended

uses even where foreseeable by a manufacturer.” Pa. Dep’t of Gen. Servs. v. United

States Mineral Prods. Co., 898 A.2d 590, 600 (Pa. 2006). 

The Clevengers assert that the District Court’s instructions to the jury misstated the

applicable law because the Court yoked the concept of “intended use” to the warnings and

instructions provided by CNH with the Case 85XT skid steer loader. We disagree. 

Pennsylvania “law presumes that warnings will be obeyed.” Davis, 690 A.2d at 190. The

Clevengers were therefore required to demonstrate that the skid steer loader “would not

have been safe even if the warnings were followed.” Gigus v. Giles & Ransome, Inc.,

868 A.2d 459, 462 (Pa. Super. 2005). The District Court properly informed the jury of

this requirement. 

Since the District Court correctly instructed the jury on “intended use,” the jury

was fairly and adequately informed of the concept of “defective design.” Given our

general presumption “that juries follow instructions given by the District Court,” United

States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003), and the jury’s indication on its special

verdict form that the Case 85XT skid steer loader was not defective as designed, a new

trial would not be necessary even if the remaining aspects of the charge misstated the

applicable law. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 350 (3d Cir. 1999)
5

(“[w]e will not reverse a verdict on the ground that a jury instruction was erroneous if ‘it

is highly probable that the error did not contribute to the judgment’” (quoting Murray v.

United of Omaha Life Ins. Co., 145 F.3d 143, 156 (3d Cir. 1998))). Nevertheless, we

have reviewed the charge in its entirety and in light of the evidence presented at trial and

conclude that it was neither misleading nor inadequate. See Hurley v. Atl. City Police

Dep’t, 174 F.3d 95, 114-15 (3d Cir. 1999) (reversal is warranted where jury instructions

“are misleading or inadequate” (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 929

(3d Cir. 1997))). 

IV.

The Clevengers also assert that the District Court committed numerous evidentiary

errors. We review determinations on the admissibility of evidence for abuse of discretion. 

Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir. 2007). 

First, the Clevengers argue that the District Court erred in admitting evidence of

Mr. Clevenger’s conduct at the time of the accident. Pennsylvania strict products liability

law, however, permits a defendant to introduce evidence of misuse in order to defeat

causation. Id. The District Court did not abuse its discretion in allowing the jury to

receive this evidence. 

The Clevengers next allege that the District Court erred in prohibiting them from

questioning CNH’s corporate representative regarding his knowledge of the manner in

which consumers use the Case 85XT skid steer loader. This testimony was sought in
6

order to demonstrate that CNH foresaw that its customers used its skid steer loader in the

manner in which Mr. Clevenger was using it when he suffered his injury. The District

Court properly prevented the Clevengers from pursuing the testimony because

“foreseeability considerations have no place in [Pennsylvania strict liability design defect

law].” United States Mineral Prods., 898 A.2d at 601. 

 The Clevengers further contend that the District Court erred when it permitted

CNH to admit a video in which its expert operated a Case 85XT skid steer loader. We

find that the District Court did not abuse its discretion in concluding that the probative

value of this evidence was not substantially outweighed by the specter of either unfair

prejudice to the Clevengers or misleading the jury. See United States v. Kemp, 500 F.3d

257, 295 (“a district court’s . . . discretion is construed especially broadly in the context of

[Fed. R. Evid.] 403” (quoting United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir.

2001)), cert. denied, 128 S. Ct. 1329 (2008)). 

The Clevengers also assail the District Court’s decision prohibiting them from

introducing CNH’s reports of other alleged accidents involving its skid steer loaders with

circumstances similar to the accident that forms the basis of this action. They argue that

the District Court should have admitted these reports under Fed. R. Evid. 803(6). We

have examined the reports and conclude that the District Court did not abuse its discretion

in refusing to admit this hearsay evidence. See Fed. R. Evid. 803(6) (hearsay contained

within business records is subject to exclusion when “the source of information or the
7

method or circumstances of preparation indicate lack of trustworthiness”); see also John

McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632, 635-36 (3d Cir. 1977) (no abuse of

discretion in excluding accident reports proffered to demonstrate design defect). 

Finally, the Clevengers allege that the District Court erred when it permitted CNH

to elicit testimony regarding industry standards and practices. Under Pennsylvania law,

such evidence is inadmissible in a strict liability design defect action. Lewis v. Coffing

Hoist Div., Duff-Norton Co., 528 A.2d 590, 594 (Pa. 1989). Here, however, the

Clevengers introduced testimony regarding industry standards and practices in their casein-chief. The District Court did not abuse its discretion in affording CNH a rebuttal. See

Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205, 1213 (9th Cir. 2009) (“the

introduction of inadmissible evidence by one party allows an opponent, in the court’s

discretion, to introduce evidence on the same issue to rebut any false impression that

might have resulted from the earlier admission” (quoting United States v. Whitworth, 856

F.2d 1268, 1285 (9th Cir. 1988))).

V.

In sum, we conclude that the District Court did not err in its charge to the jury or

evidentiary rulings. Accordingly, we will affirm the Court’s order denying the

Clevengers’ motion for a new trial.