1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-22-1997

Surace v. Caterpillar Inc

Precedential or Non-Precedential:

Docket 95-1805

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Recommended Citation

"Surace v. Caterpillar Inc" (1997). 1997 Decisions. Paper 87.

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1

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

NO. 95-1805 

_____________ 

MICHAEL SURACE; ALICE SURACE, h/w, 

 Appellants

v. 

CATERPILLAR, INC.; CMI CORPORATION, 

 Appellees

___________________________________ 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

D.C. Civ. No. 94-cv-01422 

___________________________________ 

Argued: July 31, 1996 

Before: BECKER, STAPLETON, Circuit Judges, and 

WARD, District Judge.

*

(Filed April 22, 1997) 

SOL H. WEISS, ESQUIRE (ARGUED) 

KRISTIN WERNER, ESQUIRE 

Anapol, Schwartz, Weiss and Cohan 

1900 Delancey Place 

Philadelphia, PA 19103 

Attorneys for Appellants

Michael and Alice Surace

CARY E. HILTGEN, ESQUIRE (ARGUED) 

KAREN S. MacLEOD, ESQUIRE 

Hiltgen and Brewer 

117 Park Avenue Third Floor 

Oklahoma City, OK 73102 

 

 

*Honorable Robert J. Ward, United States District Judge for 

the Southern District of New York, sitting by designation. 
2

JAMES D. GOLKOW, ESQUIRE 

Cozen and O'Connor 

The Atrium, Third Floor 

1900 Market Street 

Philadelphia, PA 19103 

Attorneys for Appellee

CMI Corporation

_____________________ 

OPINION OF THE COURT 

_____________________ 

BECKER, Circuit Judge. 

 This is a products liability case, Restatement of Torts 2d § 

402A, arising out of a construction accident in which the treads 

of a huge road profiler machine ran over the foot of plaintiff 

Michael Surace. Surace brought suit against CMI Corporation 

("CMI"), the manufacturer of the machine, in the district court 

for the Eastern District of Pennsylvania.1 The district court, 

concluding that the evidence contained in the summary judgment 

record failed to demonstrate that the profiler's risks outweighed 

its utility, and also that the profiler presented an obvious risk 

which could have been avoided had Surace exercised reasonable 

care, granted summary judgment in favor of CMI. Surace appealed. 

 Resolution of the appeal requires us to explore the contours 

of the Pennsylvania Supreme Court's decision in Azzarello v. 

Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), which 

established that, for purposes of strict liability, whether a 

product's condition justifies placing the risk of loss on the 

supplier is a threshold question of law for the court to 

 

 

1 Jurisdiction was based upon diversity of citizenship, 28 

U.S.C. § 1332. 
3

determine.2 That Court has also made clear that the threshold 

question turns on a social policy determination to be made by the 

trial judge. In post-Azzarello defect cases, the Pennsylvania 

Superior Court has determined that this requirement may be 

fulfilled by performing a risk-utility analysis, and that the 

multi-factor list developed by Dean John Wade may be employed in 

doing so. See John Wade, On the Nature of Strict Tort Liability 

for Products, 44 Miss. L.J. 825, 837-38 (1973). Though with some 

diffidence, we predict that the Pennsylvania Supreme Court would 

adopt that approach. 

 The appeal then requires that we apply the risk-utility 

factors to our plenary review of the district court's judgment. 

When we do so, we find that the risk-utility balance weighs in 

favor of the plaintiff. In particular, we conclude that the 

district court erred: (1) in determining that the gravity of the 

risk of harm and the ability to eliminate it through use of a 

lockout/tagout device, identified by Surace's expert as the 

design solution to the defect, were factors weighing in favor of 

CMI; (2) in relying on Surace's own conduct to determine that the 

profiler was not unreasonably dangerous; and (3) in weighing the 

issue of causation as a factor in resolving that question. We 

also conclude that putative alternative grounds for upholding the 

summary judgment for CMI do not pass muster. Accordingly, we 

will reverse the grant of summary judgment and remand for further 

 

 

2 The parties agree that Pennsylvania substantive law 

governs this diversity action. Nowak By and Through Nowak v. 

Faberge, U.S.A., Inc., 32 F.3d 755, 757 (3d Cir. 1994). 
4

proceedings consistent with this opinion. 

 However, we will affirm the district court's judgment 

insofar as it excluded Surace's expert witness Harold Brink from 

testifying under Fed. R. Evid. 702. We agree that Brink lacks 

the expertise required to testify regarding the central issue of 

design defect in the case -- habituation. Accordingly, the 

district court properly excluded Brink's testimony. 

 I. FACTS AND PROCEDURAL HISTORY

 On the night of September 16, 1992, Surace, an employee of 

SJA Construction Company, was working on the New Jersey side of 

the Betsy Ross Bridge. The work crew was using a PR-450 pavement 

profiler, which had been manufactured by CMI for Caterpillar, 

Inc., to mill rumble strips at the base of the bridge. The 

profiler had been equipped with a conveyor assembly which picked 

up and carried debris generated by the profiler to a waiting 

receptacle. However, due to space constraints, the crew was 

operating the profiler without the conveyor assembly. 

Consequently, the crew was required to level manually the piles 

of debris left behind by the profiler. 

 On the night of the accident, Surace was working as a leftside sensor man. In this position, he was responsible for 

signaling the profiler's operator, William Snyder, when to start 

and stop the profiler, and in which direction to move it. 

Although the profiler was equipped with horns on the side 

specifically designed for signaling the operator, Surace was 

using hand signals to signal Snyder. The profiler's design 

contained a "blind spot," i.e., the operator's view of the area 
5

directly behind the machine was obstructed. 

 The profiler was equipped with a number of warning devices, 

including a sign prominently posted on its rear alerting the crew 

to stay at least 25 feet clear of the machine, an automatic backup alarm, flashing back-up lights, and a rotating overhead beacon 

light which signaled when the profiler was in operation. These 

warning or signaling devices were all in working condition on the 

night of the accident. Surace was wearing earplugs to protect 

his ears from the considerable noise created by the machine. 

 After the first pass of the profiler, Surace signaled Snyder 

to stop. After moving the profiler forward, Snyder did so. 

Surace then noticed a pile of debris in the reverse pathway of 

the profiler which the machine had generated. Surace picked up a 

broom or shovel, and, with his back to the machine, began to 

level the debris. While Surace was behind the machine, and 

without any signal from Surace, Snyder put the profiler into 

reverse. Although the back-up alarms and signals were activated, 

Surace neither heard nor saw them, nor did he hear the shouts 

from his crew workers to move out of the way. The profiler 

backed into Surace and snared his right foot under the treads. 

As a result of the accident, Surace sustained serious injuries, 

necessitating the amputation of part of his right foot. 

 Surace and his wife Alice (Surace) filed suit against 

Caterpillar and CMI alleging negligence and strict liability for 

defective design.3 Surace subsequently dropped the negligence 

 

 

3 Alice Surace claimed loss of consortium. 
6

claim and, by stipulation of the parties, Caterpillar was 

dismissed from the action. The complaint alleged that the 

profiler was defectively designed because its warning devices 

were inadequate. Specifically, Surace alleged that the back-up 

alarms were prone to "habituation," a phenomenon by which a 

person becomes immune to a particular stimulus through constant 

repetition and exposure, and that without a “lockout/tagout” 

device, which would prevent the machine from reversing unless 

activated by the ground crew, the profiler was unreasonably 

dangerous. 

 Following a period of discovery, CMI moved in limine to 

exclude the testimony of Surace's liability experts, Joseph 

Lambert, Harold Brink and Paul Stephens, pursuant to Fed.R.Evid. 

702, 703, and 403. Both Dr. Lambert, a psychologist and 

specialist in human factors analysis, and Brink, an 

electromechanical engineer, were to testify that the profiler's 

warning devices were defective because they were prone to 

habituation. Stephens, a mechanical and safety engineer, was to 

testify that the warning devices were inadequate, and that the 

failure to equip the machine with additional safety devices 

caused the accident. After conducting an in limine hearing, the 

district court denied the motion with respect to Lambert and 

Stephens, but granted it with respect to Brink. Surace v. 

Caterpillar, Inc., No. CIV.A.94-1422, 1995 WL 303895 (E.D. Pa. 

May 16, 1995). The court's ruling was predicated largely on the 

fact that Brink's opinion hinged on habituation, a field, the 

court found, in which Brink lacked experience and for which he 
7

relied exclusively on Dr. Lambert for support. 

 CMI then moved for summary judgment, arguing, inter alia, 

that the profiler was safe for its intended use. As noted above, 

the district court granted summary judgment for CMI on the 

grounds that the evidence failed to demonstrate that the 

profiler's risks outweighed its utility, and that the profiler 

presented an obvious risk which could have been avoided if Surace 

had exercised reasonable care. Surace v. Caterpillar, Inc., No. 

CIV.A.94-1422, 1995 WL 495123 (E.D. Pa. Aug. 18, 1995). 

 We exercise plenary review in determining the propriety of 

summary judgment. Childers v. Joseph, 842 F.2d 689, 693 (3d Cir. 

1988). Summary judgment is proper only if there is no genuine 

issue of material fact. Id. "An issue is `genuine' only if a 

reasonable jury, considering the evidence presented, could find 

for the non-moving party." Id. at 693-94. 

 II. THE AZZARELLO THRESHOLD ANALYSIS

 A. Introduction 

 Pennsylvania early on adopted the Restatement (Second) of 

Torts as the law of strict products liability in Pennsylvania. 

Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (Pa. 1966). 

Section 402A of the Restatement provides in relevant part: 

 (1) One who sells any product in a 

 defective condition unreasonably 

 dangerous to the user or consumer . . . 

 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. 
8

Restatement (Second) of Torts (1965). To establish a case under 

the strict liability doctrine, a plaintiff must prove that the 

product was defective, and that the defect proximately caused the 

plaintiff's injuries. Berkebile v. Brantly Helicopter Corp., 462 

Pa. 83, 93-94, 337 A.2d 893, 898 (1975). 

 In Azzarello v. Black Bros Co., 480 Pa. 547, 558, 391 A.2d 

1020, 1026 (1978), the Pennsylvania Supreme Court held that "the 

phrases `defective condition' and `unreasonably dangerous' as 

used in the Restatement formulation are terms of art invoked when 

strict liability is appropriate." The Court also announced that 

the threshold determination as to whether the product's condition 

justifies placing the risk of loss on the manufacturer or 

supplier is a question of law for the court to resolve. Id., 391 

A.2d at 1026. If the court determines that the product is 

defective under the facts as alleged, then the case is submitted 

to the jury to determine whether the facts indicate that when the 

product left the manufacturer’s control it “lack[ed] any element 

necessary to make it safe for its intended use or possess[ed] any 

feature that renders it unsafe for the intended use.” Id. at 

559, 391 A.2d at 1027. The court in Azzarello, however, did not 

articulate the standard for determining whether the risk of loss 

should be placed on the manufacturer, except to note that it was 

a matter of social policy: 

 Should an ill-conceived design which 

 exposes the user to the risk of harm entitle 

 one injured by the product to recover? 

 Should adequate warnings of the dangerous 

 propensities of an article insulate one who 

 suffers injuries from those propensities? 

 When does the utility of a product outweigh 
9

 the unavoidable danger it may pose? These 

 are questions of law and their resolution 

 depends upon social policy. 

Id. at 558, 391 A.2d at 1026; see also Ellen Wertheimer, 

Azzarello Agonistes: Bucking the Strict Products Liability Tide, 

66 Temp. L. Rev. 419, 424 (1993) ("Azzarello indisputably failed 

to provide courts with guidelines for determining precisely when 

and why strict liability should attach."); David G. Owen, 

Rethinking the Policies of Strict Products Liability, 33 Vand. L. 

Rev. 681, 686-87 (1980) (Azzarello "did very little to help 

clarify the meaning of defectiveness and its proper standards of 

measure") (“the [Azzarello] court nowhere explicitly connects the 

test of liability chosen -- ‘unsafe for the intended use’ -- to 

even the weak policies that it does set forth”). 

 B. Risk-Utility Analysis 

 Because we are sitting in diversity, we are, of course, 

required to the extent necessary to our decision to predict how 

the Pennsylvania Supreme Court would apply the Azzarello

standard. In doing so, we give "`due regard' to the decisions of 

Pennsylvania's intermediate appellate courts as `indicia of how 

the state's highest court would decide a matter.'" Nowak, 32 F.3d 

at 758 (quoting Ciccarelli v. Carey Canadian Mines, Ltd., 757 

F.2d 548, 553 n.3 (3d Cir. 1985)). 

 Absent further guidance from the Supreme Court, the 

Pennsylvania Superior Court has determined that in performing the 

social policy analysis, a court must play a dual role, acting as 

both a "social philosopher" and a "risk-utility economic 

analyst." Fitzpatrick v. Madonna, 424 Pa. Super. 473, 476, 623 
10

A.2d 322, 324 (1993); Carrecter v. Colson Equip. Co., 346 Pa. 

Super. 95, 101 n.7, 499 A.2d 326, 330 n.7 (1985). In doing so, 

courts, including the district court in the case sub judice, 

engage in a risk-utility analysis, weighing a product's harms 

against its social utility. Smialek v. Chrysler Motors Corp., 290 

Pa. Super. 496, 502, 434 A.2d 1253, 1256 (Pa. Super. Ct. 1981) 

("the question of whether a product is defective reaches the jury 

only after the court has weighed the relative risks and utility 

of the product"); see also Burch v. Sears, Roebuck & Co., 320 Pa. 

Super. 444, 450-51, 467 A.2d 615, 618 (1983). 

 The Superior Court's approach in this respect seems 

consistent with the tenor of the Pennsylvania Supreme Court's § 

402A jurisprudence. Indeed, in Azzarello, the Supreme Court 

indicated that a risk-utility inquiry may be appropriate in 

performing the social policy analysis. Azzarello, 480 Pa. at 558, 

391 A.2d at 1026 (suggesting that a court inquire as to whether 

“the utility of a product outweigh[s] the unavoidable danger it 

may pose"). Furthermore, Dean John Wade's article setting forth 

the risk-utility analysis was cited favorably throughout the 

Azzarello decision. Id. at 556 n.8,10, 557-58, 391 A.2d at 1025 

n.8,10, 1026. That fact, coupled with its long hegemony in 

Pennsylvania -- risk-utility analysis has been used by state and 

federal trial courts since at least 1985 without comment by the 

Pennsylvania Supreme Court -- satisfies us that the Supreme Court 

would adopt it. 

 To be sure, the Pennsylvania Supreme Court has rejected the 

risk-utility approach to defining design defect in favor of the 
11

"intended use" approach. Lewis v. Coffing Hoist Div., DuffNorton Co., 515 Pa. 334, 340, 528 A.2d 590, 593 (1987), cited in

Habecker v. Clark Equip. Co., 942 F.2d 210, 213 n.2 (3d Cir. 

1991).4 And, the Pennsylvania Superior Court has relied on Lewis

in rejecting actions which are based on a risk-utility theory of 

liability.5 But the courts, including this one, have not 

interpreted Lewis as supplanting application of the risk-utility 

analysis as part of the threshold social policy inquiry. See 

 

 

4 In Lewis, the Supreme Court acknowledged various 

approaches to determining whether a product is defectively 

designed. The court noted that under a "consumer expectations" 

approach, adopted by the California Supreme Court in Barker v. 

Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 

P.2d 443 (1978), a product is deemed defective in design "if it 

failed to perform as safely as an ordinary consumer would expect 

when used in an intended or reasonably foreseeable manner." 515 

Pa. at 528 A.2d at 593. The Lewis court took cognizance of the 

risk-utility approach, under which a product design is defective 

where "on balance, the benefits of the challenged feature 

outweigh the risk of danger inherent in such design," id. 528 

A.2d at 593, but went on to state that the Azzarello court "sets 

forth yet another approach" to determining design defects -- the 

intended use approach. Id., 528 A.2d at 593 (citing Azzarello, 

480 Pa. at 559, 391 A.2d at 1027). 

 

5In Hite v. R.J. Reynolds Tobacco Co., 396 Pa. Super. 82, 

90-91, 578 A.2d 417 (1990), the plaintiff brought a strict 

liability suit against a cigarette manufacturer. Rather than 

allege a specific defect, the plaintiff argued that the product 

was defective because the risks of cigarettes are outweighed by 

their social utility. The Superior Court, noting that the 

Supreme Court in Lewis had declined to embrace the risk-utility 

approach to defining design defect, rejected the plaintiff's 

theory. Id. at 91, 578 A.2d at 421; accord Miller v. Brown & 

Williamson Tobacco Corp., 679 F. Supp. 485, 489 (E.D. Pa. 1988), 

aff’d, 856 F.2d 184 (3d Cir. 1988). Likewise, in Dauphin Deposit 

Bank & Trust Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 265, 

596 A.2d 845 (1991), a panel of the Superior Court rejected the 

plaintiff's theory that strict liability should be imposed 

against an alcohol manufacturer solely because the risks 

associated with alcoholic consumption outweigh their utility. 

The Superior Court panel suggested that the risk-utility theory 

of liability was not a cognizable approach to defining defect 

under Pennsylvania strict liability law. Id., 596 A.2d 849. 
12

Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1227 (3d Cir. 

1989); Shetterly v. Crown Controls Corp., 719 F. Supp. 385, 399 

(W.D. Pa. 1989), aff'd, 898 F.2d 142 (3d Cir. 1990); Marshall v. 

Philadelphia Tramrail Co., 426 Pa. Super. 156, 165, 626 A.2d 620, 

625 (1993).6 That result is consistent with the Pennsylvania 

Supreme Court’s discussion in Lewis, which confirms, throughout, 

its “harmony” with Azzarello. 

 At all events, Lewis does not purport to cut back on 

Azzarello, and the discussion in Lewis that seems to have caused 

some confusion is background and arguably dicta; the question for 

 

 

6In Griggs v. BIC Corp., 786 F. Supp. 1203 (M.D. Pa. 1992), 

the plaintiffs sought to have strict liability imposed, not 

because the product, a disposable butane lighter, was unsafe for 

its intended use, but because it was unreasonably dangerous to 

foreseeable users, i.e., children. The plaintiffs advocated use 

of the risk-utility approach to design defect, rather than the 

"intended use" approach, arguing that because it was foreseeable 

that children would misuse the lighters and it was feasible to 

design child-proof lighters, on balance, the product was 

defective. The district court, citing Hite and Dauphin, noted 

that the Pennsylvania courts have rejected the risk-utility 

approach to design defect cases. Id. at 1206-07. The court, 

however, correctly distinguished between the use of risk-utility 

as an approach to defining defect and as a method for evaluating 

a product's 'unreasonable dangerousness' under the rubric of 

strict products liability. Id. at 1207 n.4. 

 On appeal, a panel of this Court relied on the Supreme 

Court's decision in Lewis in affirming the district court on this 

issue. Griggs v. BIC Corp., 981 F.2d 1429, 1433 n.6 (3d Cir. 

1992). In light of the underlying facts of the case, we read the 

panel's decision in Griggs as rejecting the argument that the 

risk-utility approach to defining defect should be used instead 

of the "intended use" approach; however, to the extent that the 

panel's decision can be read as rejecting outright the use of a 

risk-utility analysis as a part of the threshold determination, 

it is contrary to our decision in Motter, supra, which, 

subsequent to the Lewis decision, sanctioned this approach, and, 

therefore, carries no precedential weight. See O. Hommel Co. v. 

Ferro, 659 F.2d 340, 354 (3d Cir. 1981) ("[A] panel of this court 

cannot overrule a prior panel precedent. . . . To the extent that 

[the later case] is inconsistent with [the earlier case, the 

later case] must be deemed without effect." (citation omitted)). 
13

decision in Lewis was whether evidence of industry standards was 

admissible in a design case. We do not minimize the background 

discussion, and observe that it seems quite correct (as well as 

consistent with Azzarello, for it establishes no more than that 

the known hazards of products such as cigarettes or alcohol, see

supra n. 6 or, presumably, cigarette lighters, see supra n. 7, do 

not automatically render their manufacturers or sellers liable on 

the theory that their utility is outweighed by the risks of their 

usage). Rather, Lewis established only that, after the threshold 

Azzarello determination by the court, the jury must determine 

whether, under the facts, the product, at the time it left the 

defendant’s control, lacked any element necessary to make it safe 

for its intended use or contained any condition that made it 

unsafe for use. See Pennsylvania Suggested Standard Civil Jury 

Instructions § 8.02 (Definition of “Defect”). 

 In sum, our prediction that Pennsylvania would employ a 

risk-utility analysis in making the threshold Azzarello

determination is not inconsistent with Lewis, and we affirm the 

district court's use of a risk-utility analysis in determining 

whether the risk of loss should be placed on CMI. 

 We regret that the Supreme Court has not yet spoken 

definitively on the matter of risk-utility analysis or its 

component factors. Since it is almost twenty years since 

Azzarello, we hope that the Court will speak definitively soon. 

Unfortunately, we do not have a certification procedure, see

generally Hakimoglu v. Trump Taj Mahal Assoc., 70 F.3d 291, 302-

04 (3d Cir. 1996) (Becker, J., dissenting), through which we 
14

could ask that court (in an appropriate case) for an early 

resolution of the question that is so critically important in 

many of the large number of diversity cases that are brought in 

the federal district courts of the Third Circuit. We do not 

suggest that this is that case, because the outcome does not 

depend on the answer. If the Pennsylvania Court should adopt a 

certification procedure, we must be careful to be judicious, 

indeed sparing, in our use of it even though any such procedure 

would necessarily give that court the absolute right to decline 

certification in any case. To act otherwise would be to strain 

the delicate federal-state relationship which needs to be 

nurtured, not impaired. 

 C. The Wade Factors 

 Absent guidance from the state Supreme Court, the Superior 

Court has also identified factors that may be considered in 

making the threshold risk-utility analysis, including the 

following list developed by Dean John Wade: 

(1) The usefulness and desirability of the product -- its 

utility to the user and to 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 
15

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 avoidability, because of general 

public knowledge of the obvious condition of the 

product, or of the existence of suitable warnings or 

instruction; and (7) The feasibility, on the part of 

the manufacturer, of spreading the loss of [sic] 

setting the price of the product or carrying liability 

insurance. 

Dambacher v. Mallis, 336 Pa. Super. 22, 50 n.5, 485 A.2d 408, 423 

 n.5 (1984) (citing Wade, supra, 44 Miss. L.J. at 837-38); see

also Fitzpatrick, 424 Pa. Super. at 476-77, 623 A.2d at 324 

(citing Wade factors); Phillip v. A.P. Green Refractories Co., 

428 Pa. Super. 167, 180, 630 A.2d 874, 881 (1993); Riley v. 

Warren Mfg., Inc., 688 A.2d 221, 225 (Pa. Super. Ct. 1997). The 

district court applied these factors and determined that the 

profiler was not defective and, therefore, that the risk of loss 

should not be placed on CMI. We endorse the district court's 

methodology. Application of the Wade factors also seems 

consistent with the tenor of the Pennsylvania Supreme Court's 

jurisprudence, and we believe that the Supreme Court would find 

it acceptable and would probably follow it, though there are 

problems of construction, particularly with respect to factor 5, 

discussed infra.

7 

 

 

7 We note that in addition to the Wade factors, the 

Pennsylvania Superior Court has suggested another set of factors, 

developed by the California Supreme Court, which may be used in 
16

 On appeal Surace submits that CMI should have altered the 

design of the profiler by equipping it with additional safeguards 

such as a transmission lock (a "lockout/tagout device").8 We 

turn our attention to the various Wade factors. 

 1. Gravity of the Risk of Harm and Ability 

 to Eliminate It Through Use of the 

 Lockout/Tagout Device 

 (Wade Factors Two and Four) 

 The gravamen of Surace's argument is that the profiler was 

 

performing the risk-utility analysis: 

 (1) The gravity of the danger posed by 

 the challenged design; (2) the 

 likelihood that such danger would occur; 

 (3) the mechanical feasibility of a 

 safer design; (4) the financial cost of 

 a safer design; and (5) the adverse 

 consequences to the product that would 

 result from a safer design. 

See Dambacher, 336 Pa. Super. at 50 n.5, 485 A.2d at 423 n.5 

(citing Barker, 20 Cal. 3d at 431, 143 Cal. Rptr. at 237, 573 

P.2d at 455). The Barker factors also reflect the Pennsylvania 

Supreme Court's approach to strict liability. We focus on the 

Wade factors which are more widely accepted (in Pennsylvania and 

elsewhere) and are more comprehensive, including the Barker 

factors within their compass. At all events, it is the Wade 

factors that the district court applied, albeit incorrectly, and 

hence, we limit our discussion to those factors. 

 

8 In the district court, Surace also argued that CMI should 

have provided the operator an unobstructed view of ground 

personnel, or added a rear guard, described as a cow catcher. At 

oral argument, Surace indicated that he was abandoning the cow 

catcher design and pursuing the lockout/tagout device as the 

"main [but not exclusive] thrust" of his argument. However, his 

brief is devoid of argument with respect to the district court's 

disposition under Azzarello of the alternative proffered designs, 

including the need for variable alarms. Accordingly, appellate 

review of these alternative arguments has been waived. United 

States v. Voigt, 89 F.3d 1050, 1064 n.4 (3d Cir.) (failure to 

raise a theory as an issue on appeal constitutes a waiver), cert. 

denied, -- U.S. --, 117 S. Ct. 623, 136 L.Ed.2d 546 (1996). This 

case does not present extraordinary circumstances that might 

warrant review of any unpreserved issues. Id. 
17

defective and unreasonably dangerous because of the combination 

of the "blind spot" and the phenomenon of habituation, and that 

this defect could have been eliminated through the use of a 

lockout/tagout device, which would prevent the operator from 

engaging the profiler in reverse until a switch is activated by 

ground personnel. The device would incorporate the safety 

engineering technique of lockout/tagout, a concept which, 

according to Surace's expert, although not currently in use for 

this specific purpose, has been proven and tested, particularly 

in the area of machine maintenance. The Occupational Safety and 

Health Administration has defined a lockout device as one that 

"utilizes a positive means such as a lock . . . to hold an energy 

isolating device in a safe position and prevent the energizing of 

a machine or equipment." See 29 C.F.R. § 1910.147(b)(1996). In 

this case, it would prevent the operator "from inadvertently 

releasing the energy" and reversing the profiler without 

affirmative action by the ground crew. 

 Surace contends that, in rejecting this theory, the district 

court failed to view the evidence in the light most favorable to 

him. Barker v. Deere Co., 60 F.3d 158, 166 (3d Cir. 1995) (when 

performing Azzarello analysis, a court must view the evidence in 

the light most favorable to the plaintiff) (citing Burch, 320 Pa. 

Super. at 450-51, 467 A.2d at 618-19).9 In determining that the 

 

 

9 We note that this conclusion is problematic. This is 

because the risk-utility calculus (or indeed any mode of making 

the social policy determination required by Azzarello) is a legal

determination which should probably not be predicated upon a 

weighted view of the evidence. The Pennsylvania Supreme Court 

might want to revisit this aspect of the matter if and when it 

definitively comes to grips with the issues we have identified in 
18

profiler did not pose a grave risk of harm as currently designed 

(we view this as an application of Wade factor two), the district 

court primarily relied on its conclusion that Dr. Lambert had not 

stated in his report that Surace had in fact become habituated to 

the alarm, but had merely opined that the alarm was prone to 

habituation. The court also based its determination on its 

conclusion that Lambert had neither tested Surace for habituation 

nor explained in his report how, when Surace was injured shortly 

after the first pass of the profiler, he could have become 

habituated to the alarm, since habituation requires constant or 

repeated exposure. 

 Lambert's report, which provided a human factors analysis of 

the accident, was based on collected accident reports, the 

results of noise measurements taken of the profiler, and human 

factors literature. In his deposition testimony, Lambert 

admitted that, although it was feasible, he had not tested Surace 

to determine whether or not he was habituated. He further opined 

that, "because Mr. Surace had been around this piece of equipment 

for such a long period of time, for months, that he habituated to 

this alert. And that habituation became a long-term habituation 

that could carry from day to day." Thus, although he did not 

note it in his report, Lambert did conclude that Surace had 

become habituated, and he further explained how Surace could be 

habituated on the profiler's first pass of the evening. In view 

of the fact that Lambert's testimony was before the court as part 

 

this opinion. 
19

of the summary judgment record, the district court was not at 

liberty to ignore it. Moreover, because the habituation issue 

will go to the jury in its determination as to whether the 

profiler was unsafe for its intended use, the district court 

could not resolve any dispute over the issue at that stage. 

 We underscore that, in the Azzarello context, the case would 

not become one for the jury if the district court were able to 

hold as a matter of law that the risk-utility balance so favored 

the manufacturer that the profiler could not be deemed 

unreasonably dangerous. See Barker, 60 F.3d at 161. Given the 

considerations we have just articulated, and the fact that the 

profiler will from time to time cause injury and, if so, the 

injury will be serious given the immensity and huge weight of the 

machine, we do not believe that the court could properly hold, on 

account of disputed habituation evidence, that there was not a 

sufficiently grave risk of harm from the profiler to weigh in 

favor of Surace on the risk-utility analysis (Wade factor two). 

 Applying the fourth Wade factor, the district court rejected 

Surace's contention that, because of the phenomenon of 

habituation, the profiler should have been equipped with a 

lockout/tagout device. As proffered, the lockout/tagout device 

would prevent the operator from engaging the profiler in reverse 

until a ground worker activated a switch. As currently designed, 

the profiler relies on horns located on the sides of the machine 

which must be activated by ground personnel, who, after visual 

inspection, signal the operator that it is clear to reverse. It 

is undisputed that on the night of the accident, Surace was using 
20

hand signals rather than these horns to signal the operator and 

that the operator put the profiler in reverse without waiting for 

a signal from Surace. The district court concluded that there 

was no evidence that the profiler was defective without a 

lockout/tagout device. It noted that Surace's expert, Stephens, 

was unaware of any profiler with this device, and concluded that 

he could not therefore attest to the technological or economic 

feasibility of such a device. 

 In his report, Stephens explained that the machine was 

inherently dangerous without a lockout/tagout device because of 

its "blind spot," coupled with the fact that crew members were 

required to work in close proximity to it. Stephen's Report at 3 

("severity of hazard and frequency of laborer exposure to the 

hazard dictated that [such a device] be provided on the 

machine"). Stephens further stated that the lockout/tagout 

device was both technically and economically feasible. In 

concluding that he had not shown that the device was mechanically 

feasible, the district court emphasized that Stephens did not 

know of any currently designed construction machinery that uses 

the device. That conclusion, however, runs afoul of our decision 

in Barker, where we held that "a district court, during its 

threshold determination, may [not] consider the nonexistence of a 

safety device as evidence of its nonfeasibility." Barker, 60 F.3d 

at 166-167; see also Habecker v. Clark Equipment Co., 36 F.3d 

278, 286 (3d Cir. 1994) ("The fact that the [safety device] did 

not exist . . . does not mean that it was incapable of being 

placed on the [profiler] if it did in fact exist."). 
21

 Although Stephens admitted that the device was not currently 

employed by construction machinery for this purpose, he 

repeatedly testified that such a device was used in other 

applications, that the concept had been tested and proven on 

machines comparable to the profiler, and that it could be applied 

to work for this specific purpose. We have previously held that 

expert testimony alone may be sufficient, for purposes of summary 

judgment, to demonstrate feasibility, see Hollinger v. Wagner 

Mining Equip. Co., 667 F.2d 402, 409-10 (3d Cir. 1981), and 

further held that, while "a clear and concise diagram or verbal 

picture of the type of device" would be helpful, it is not 

required to defeat a motion for summary judgment.10 Id. at 410. 

While it would have been preferable for Stephens to have 

proffered design drawings or developed a prototype of the device, 

his testimony was sufficient for purposes of the threshold riskutility calculus to make a showing of the feasibility of a 

lockout/tagout device, at least in the absence of a 

countervailing showing by CMI. We note that, in accordance with 

 

 

10 In Hollinger, a panel of this Court noted that the 

district court had analyzed the question of summary judgment 

“under the traditional standard of sufficiency of the evidence to 

present a jury question,” and not as threshold matter under 

Azzarello. Hollinger, 667 F.2d at 410 n.11. However, in the 

context in which the case was decided, the panel did not pass on 

the propriety of the district court's action. Id. We have 

previously held that the threshold legal determination under 

Azzarello regarding the unreasonable dangerousness of the product 

is properly made in the context of summary judgment or directed 

verdict. Nowak, 32 F.3d at 758. However, the question for the 

court to determine is whether the evidence is sufficient, for 

purposes of the threshold risk-utility analysis, to conclude as a 

matter of law that the product was not unreasonably dangerous, 

not whether the evidence creates a genuine issue of fact for the 

jury. 
22

Azzarello, the technical feasibility issue will go to the jury in 

determining whether the lockout/tagout device was an element 

necessary to make the profiler safe for its intended use. 

Azzarello, 480 Pa. at 588, 391 A.2d at 1026.11

 Finally, the district court concluded that there was 

insufficient evidence from which to determine whether the 

profiler would be safer if equipped with a lockout/tagout device. 

 Emphasizing that, as currently designed, the profiler relies on 

the crew to signal the operator that it is safe to reverse, the 

court concluded that the lockout/tagout device performs the same 

function and, because it relies on crew members to activate the 

device, "provides no assurance that human error as occurred here" 

would not cause another accident. Surace, 1995 WL 495123, at *7. 

 However, unlike the current design, the lockout/tagout device 

would prevent the machine from going in reverse without 

affirmative action by the ground crew which, unlike the operator, 

have an unobstructed view of the reverse path of the machine. 

Stephens acknowledged that he could not state with a reasonable 

degree of scientific certainty that the device could prevent the 

type of accident from occurring; however, he did attest that it 

would "cut the risk significantly." 

 In sum, while such a design could not entirely eliminate the 

possibility that after the machine was put into motion a crew 

 

 

11 Stephens merely stated, without explanation, that the 

lockout/tagout device was economically feasible. However, 

although we conclude that his evidence was marginal with respect 

to this Wade factor, the totality of the factors relevant here 

would require the same result. 
23

worker could walk into its pathway, it would obviously render the 

machine safer. This conclusion is “in sync” with the 

Pennsylvania courts' approach to determining whether the risk of 

loss should be placed on the manufacturer. The court must 

balance "the utility of the product against the seriousness and 

likelihood of the injury and the availability of precautions 

that, though not foolproof, might prevent the injury." Burch, 320 

Pa. Super. at 450, 467 A.2d at 618 (emphasis added). Although a 

conclusion that the profiler would be made safer if equipped with 

a lockout/tagout device does not require a finding by the court, 

or even the jury, that the profiler is defective, viewing the 

evidence in the light most favorable to Surace we conclude that 

the district court could not, on this basis, decide that the 

profiler was not unreasonably dangerous. 

 Couching this discussion in terms of the Wade factors, since 

it appears that the lockout/tagout device could eliminate the 

unsafe character of the product and since it does not appear that 

the lockout/tagout device would be expensive or would otherwise 

impair the utility of the profiler, the second and fourth Wade 

factors weigh in favor of Surace. Therefore, unless other 

factors control the balance, the case must be submitted to the 

jury. 

 2. Consideration of Surace's Conduct and 

 the Fifth Wade Factor 

 In finding that the profiler's risks were not outweighed by 

its utility, the court concluded that the accident could likely 

have been avoided had Surace exercised due care. Specifically, 
24

the court found that because Surace was an experienced 

construction worker, fully aware of the dangers posed by the 

profiler, his conduct in wearing earplugs and turning his back to 

the machine while standing in its pathway was both careless and a 

cause of the accident. The court observed that "[i]t would be 

unjust to burden CMI with liability in a situation where there is 

clear evidence that Mr. Surace's own lack of care played a role 

in bringing about the accident." Surace, 1995 WL 495123, at *9. 

On appeal, Surace argues that the district court erred in 

considering his conduct as part of the Azzarello threshold 

analysis. He submits that such a consideration impermissibly 

interjects concepts of negligence into a strict liability case. 

 Pennsylvania courts generally bar consideration of 

contributory negligence in strict liability actions. See Kimco 

Dev. Corp. v. Michael D's Carpet, 536 Pa. 1, 8, 637 A.2d 603, 606 

(1993) (rejecting comparative negligence as a defense in a strict 

liability case); see also Dillinger v. Caterpillar, Inc., 959 

F.2d 430 (3d Cir. 1992).12 Indeed, the Pennsylvania Supreme 

 

 

 12 In Dillinger, after a thorough analysis of 

Pennsylvania strict liability law, we concluded that the 

"[Pennsylvania] Supreme Court has unequivocally excluded 

negligence concepts from product liability cases" and, therefore, 

the district court had erred in ruling that evidence of the 

plaintiff’s contributory negligence was admissible to rebut 

causation. 959 F.2d at 443, 444. Our opinion in Dillinger has, 

however, not put to rest all questions relating to the manner in 

which a plaintiff's negligence may be considered in a § 402A 

case. Compare Kramer v. Raymond Corp., 840 F. Supp. 333, 335 

(E.D. Pa. 1993) (relying on Dillinger for the proposition that 

evidence of a plaintiff's conduct is admissible only to show that 

the plaintiff has assumed the risk or misused the product), with

Kern v. Nissan Indus. Equip. Co., 801 F.Supp. 1438, 1441 (M.D. 

Pa. 1992) (evidence of negligence is admissible to rebut 

causation where the plaintiff's conduct triggered events 

resulting in injury), and Kolesar v. Navistar Int'l Transp. 
25

Court eschews the use of negligence concepts in a strict 

liability case. See Lewis, 515 Pa. at 341, 528 A.2d at 593 

("negligence concepts have no place in a case based on strict 

liability"). The theoretical basis for this approach is that 

strict liability focuses on the condition of the product; it is 

irrelevant that the injury was the result of the manufacturer's 

or consumer's negligence. Kimco, 536 Pa. at 7-8, 637 A.2d at 605-

06; Lewis, 515 Pa. at 341, 528 A.2d at 593. 

 An individual plaintiff's failure to exercise care in the 

use of a product is not relevant to whether the product is 

unreasonably dangerous in the first place. See Fleck v. KDI 

Sylvan Pools Inc., 981 F.2d 107, 119 (3d Cir. 1992) ("product 

liability laws . . . encourage manufacturers to make safe 

products even for the careless and unreasonable consumer"); 

Berkebile, 462 Pa. at 95 n.6, 100, 337 A.2d at 899 n.6, 902 

(1975) (rejecting even the "reasonable" consumer standard for the 

"ordinary" consumer); see also William J. McNichols, The 

Relevance of the Plaintiff's Misconduct in Strict Tort Products 

Liability, the Advent of Comparative Responsibility, and the 

Proposed Restatement (Third) of Torts, 47 Okla. L.Rev. 201, 207 

(1994) ("unreasonably dangerous" determination requires objective 

inquiry into the "class of ordinary purchasers"). Therefore, the 

district court's consideration of Surace's conduct runs afoul of 

Pennsylvania § 402A jurisprudence.13 

 

Corp., 815 F.Supp. 818, 822 (M.D. Pa. 1992) (same), aff’d, 995 

F.2d 217 (3d Cir. 1993). 

 

 13 We note further that, even assuming arguendo, that 

consideration of Surace's conduct had been appropriate under 
26

 The district court believed that by endorsing the Wade 

factors, specifically, the fifth factor, (the user’s ability to 

avoid danger by the exercise of care in the use of the product), 

the Pennsylvania Superior Court has expressly sanctioned 

consideration of a product user's conduct in failing to exercise 

care as an appropriate factor in performing the threshold 

analysis. Although the Pennsylvania Supreme Court has not 

sanctioned use of the Wade factors, we have predicted that it 

will. See supra at 14. That prediction nonetheless admits of the 

possibility that the court will adopt some but not all of the 

Wade factors. We note that at least one justice has commented on 

the limitations of these factors in one respect. See Sherk v. 

Daisy-Heddon, 498 Pa. 594, 625-26, 450 A.2d 615, 631-32 (1982) 

(Larsen, J., dissenting) (noting that use of these factors as the 

standard for determining whether a product is defective fails in 

its "attempt to maintain a distance from negligence concepts”). 

 In applying the fifth Wade factor, the district court looked 

to Surace's conduct, rather than to an ordinary product user's 

conduct. We believe that it erred in so doing. The Wade factors 

set forth an objective test to determine whether a product is 

 

Azzarello, the district court erred in its application of the 

facts. The district court first suggested that Surace's use of 

earplugs was careless. However, SJA required its crew to wear 

earplugs. Moreover, on appeal, CMI concedes that federal 

regulations require the use of protective ear gear at the level 

at which the profiler's alarms sounded (100 db). CMI Br. at 22. 

Furthermore, although it was undisputed that Surace had turned 

his back to the machine, it was also clear that the operator 

moved the machine without being signaled, and that he had never 

done this in the past. Surace Dep. at 150; Fisher Dep. at 44. 

Therefore, a reasonable jury could infer that Surace's actions 

were not careless. 
27

defective; the "user" referred to in the factors is the ordinary 

consumer who purchases or uses the product. Williams v. Briggs 

Co., 62 F.3d 703, 707 (5th Cir. 1995) (applying Mississippi law 

and noting that the fifth Wade factor focuses on "an ordinary 

person's ability to avoid the danger by exercising care"); Riley 

v. Becton Dickinson Vascular Access, Inc., 913 F. Supp. 879, 889-

90 (E.D. Pa. 1995)("we are concerned with the ability of the 

[product's users], in general, to avoid the risks inherent in the 

product, not with the particular circumstances of [a] plaintiff's 

accident" (emphasis added)); Johansen v. Makita U.S.A., Inc., 128 

N.J. 86, 100-01, 607 A.2d 637, 645 (1992) ("risk-utility analysis 

is an objective test that focuses on the product" and the fifth 

Wade factor requires consideration of "the extent to which the 

hypothetical `average user' of the product -- not the plaintiff -

- could avoid injury through the use of due care."); see

generally Wade, supra, 44 Miss. L.J. at 847 ("strict liability 

. . . is imposed on an objective basis"). 

 The proper focus in applying the fifth Wade factor then is 

an objective inquiry into whether the class of ordinary 

purchasers of the product could avoid injury through the exercise 

of care in use of the product, not whether this particular 

plaintiff could have avoided this particular injury. Put 

differently, the user's ability to avoid injury by the exercise 

of care in the use of the product appears to be a design factor 

that may justify a more or less exacting design depending on the 

facts, but it is, in any case, not a vehicle for injecting a 

plaintiff's (alleged) failure to exercise due care into the case. 
28

 Thus, the district court misapplied this factor. 

 We acknowledge that, notwithstanding the foregoing 

discussion, it is unclear whether the Pennsylvania Supreme Court 

would endorse even an objective application of the fifth Wade 

factor in performing the Azzarello threshold analysis. The court 

has held that the existence of due care in strict liability cases 

is irrelevant, both with respect to the supplier and the 

consumer. Berkebile, 462 Pa. at 94, 337 A.2d at 899. Although it 

may appear that in doing so, that court has implicitly rejected 

the fifth Wade factor, its concern is with divorcing negligence 

concepts from strict liability proceedings;14 we do not believe 

that the inquiry suggested by the fifth Wade factor injects 

negligence into the action or diverts the focus away from the 

condition of the product, but rather it informs the decision as 

to whether the product, as designed, is not reasonably safe when 

used as intended. 

 As Dean Wade explained in his seminal article enunciating 

the factors, the focus of the inquiry is on the product: 

Suppose that a consumer buys and wears shoes that are too 

little or tires that are too large for his automobile, 

or that he uses the product without following 

instructions. If he is injured as a result and brings 

 

 

14See Berkebile, 462 Pa. at 97, 337 A.2d at 900 (holding 

trial court erred in instructing on manufacturer's 

foreseeability, as "[t]o require foreseeability is to require the 

manufacturer to use due care in preparing his product. In strict 

liability, the manufacturer is liable even if he has exercised 

all due care."); see also Brandimarti v. Caterpillar Tractor Co., 

364 Pa. Super. 26, 33, 527 A.2d 134, 138 (1987) (where trial 

court had instructed jury that plaintiff's "misuse", "abuse", or 

"abnormal use" of the product was a defense to a strict liability 

claim, the court cautioned that, on remand, the introduction of 

the element of due care was not an issue). 
29

suit, the problem may be posed in terms of whether he 

was at fault and whether his fault should bar recovery 

in an action based on strict liability. The initial, 

and really significant, problem is whether the product 

was duly safe or not. A good pair of shoes size 5 is 

not unduly unsafe because it may be worn by a woman 

with feet size 7 . . . . A product with adequate 

instruction for its safe use may as a result be duly 

safe, and it is not rendered unsafe by the fact that 

the consumer did not follow the instructions. . . . 

 Further illustrations easily present themselves. There 

is no drug, and perhaps no food, that is not dangerous 

if too much of it is consumed. It is missing the real 

point to pose the issue in terms of whether the 

plaintiff was contributorily negligent in taking too 

many pills or too much food. 

Wade, supra, at 846 (footnotes omitted). The analysis does not 

center on the due care vel non of the consumer but rather 

highlights whether a product is duly safe for its intended use. 

 This is true of all of the Wade factors. For example, the 

focus of the sixth factor, which considers "the user's 

anticipated awareness of the dangers inherent in the product and 

their avoidability, because of general public knowledge of the 

obvious condition of the product, or of the existence of suitable 

warnings or instruction," is on the product: 

 [T]he dangers of a hoe or an axe 

 are both matters of common knowledge and 

 fully apparent to the user. But it is not 

 necessarily sufficient to render a product 

 duly safe that its dangers are obvious, 

 especially if the dangerous condition 

 could have been eliminated. A rotary lawn 

 mower, for example, which had no housing 

 to protect a user from the whirling blade 

 would not be treated as duly safe, despite 

 the obvious character of the danger. 

 Note that the question here is whether the 

 product possesses the quality of due safety, 

 not whether the plaintiff assumed the risk 

 or was contributorily negligent. 
30

Id. at 842-43. 

 Thus, insofar as the fifth Wade factor inquires into the 

(objective) conduct of the average product user as a factor that 

may justify a more or less exacting design depending on the 

facts, it seems to be an appropriate ingredient in the Wade riskutility balance, which itself seems a useful approach to 

performing the Azzarello threshold analysis. We thus predict 

that the Pennsylvania Supreme Court would follow that approach. 

But only that Court can tell us, see Hakimoglu, 70 F.3d at 302-

304 (Becker, J., dissenting), and we hope that it will do so 

soon. 

 Properly applying the fifth Wade factor to determine the 

objective user's ability to avoid danger by the exercise of care 

in the use of the profiler, we find that the factor weighs 

slightly in Surace's favor. Although an individual working on 

the ground behind the profiler could, in theory, avoid danger by 

exercising care to always remain out of the machine's blind spot, 

it seems likely that ordinary workers at a highway construction 

site will occasionally find it necessary to step behind the 

machine, and that such workers may, like Surace, be habituated to 

the profiler's alarm and thus unable to avoid danger if the 

profiler's operator backs up without signaling. 

 3. Other Wade Factors 

 We do not discuss the other Wade factors except in passing 

because they are either neutral or favor Surace in the riskutility balance. The profiler is, of course, useful and 

desirable. (Wade factor one) There does not appear to be a 
31

substitute product that would meet the same need and not be 

unsafe. (factor three) Finally, it seems feasible for the 

manufacturers to spread any loss implicated by a safer design in 

a variety of ways. (factor seven) 

 4. Summary 

 We have rejected both the factual and legal bases of the 

district court's holding that the profiler was not defective as a 

matter of law, and conclude that the threshold Azzarello test has 

been met. Specifically, when we evaluate the risk-utility 

factors in the light most favorable to Surace, we conclude that 

the profiler may pose a grave risk of harm absent a 

lockout/tagout device, in view of the phenomenon of habituation. 

 The summary judgment must therefore be set aside and the case 

must go to the jury, though, of course, the jury may find for the 

defendant if it determines that the facts do not support a 

finding of defect. See supra at 13. 

 There is, however, one other problem in the case -- that 

presented by the district court's conflation of the causation 

issue into the Azzarello analysis. 

 III. CAUSATION; SEPARABILITY FROM AZZARELLO ANALYSIS

 In a footnote in its opinion, the district court indicated 

that, although contributory negligence is irrelevant in a strict 

liability case, consideration of Surace's conduct in wearing the 

earplugs and turning his back to the machine was appropriate as 

part of the Azzarello threshold analysis to the extent that it 

bears on causation. Surace, 1995 WL 495123 at *8 n.10. We hold 

that it was error for the district court to have weighed the 
32

issue of causation as a factor in resolving the legal question of 

risk allocation. 

 There are two elements to a strict liability claim. The 

plaintiff must establish that: (1) the product was defective; and 

(2) the defect was a proximate cause of the injury. See

Berkebile, 337 A.2d at 898. It is only the first element that a 

court must address as part of the Azzarello threshold analysis. 

See Azzarello, 480 Pa. at 556-58, 391 A.2d at 1025-26; see also

Hon v. Stroh Brewery Co., 835 F.2d 510, 512-13 n.3 (3d Cir. 1987) 

(focusing on whether the product was defective under Azzarello

and specifically declining to address proximate cause); Phillips 

v. A-Best Prods. Co., 542 Pa. 124, 131, 133 n.7, 665 A.2d 1167, 

1171, 1171 n.7 (1995) (noting that its decision rested not on 

whether the product was defective under Azzarello, but rather on 

the lack of causation). This threshold analysis focuses on the 

condition of the product at the time it is marketed, and whether 

that condition justifies placing the risk of loss on the 

manufacturer. Azzarello, 480 Pa. at 559, 391 A.2d at 1027. 

 If the plaintiff ultimately proves that the product is 

defective, then the distinct question of whether the defect 

proximately caused the injury must be resolved. Pacheco v. Coats 

Co., 26 F.3d 418, 422 (3d Cir. 1994); see generally Wade, supra, 

at 842-43. Should the court determine that the defect was not a 

legal cause of the injury, then the defendant is entitled to 

judgment as a matter of law. Although the district court 

followed the correct methodology in balancing the profiler's 

inherent risks against its utility, it erred in factoring the 
33

specific circumstances surrounding the cause of the injury into 

this threshold inquiry. 

 IV. ALTERNATIVE GROUNDS FOR SUMMARY JUDGMENT

 CMI moved for summary judgment on several alternative 

grounds that the district court did not reach. In view of the 

foregoing discussion, we must reach them. See United States v. 

Taylor, 98 F.3d 768, 774 (3d Cir. 1996) (citing Colautti v. 

Franklin, 439 U.S. 379, 397 n.16, 99 S. Ct. 675, 686 n.16, 58 

L.Ed.2d 596 (1979) (appellee may assert any ground in support of 

the judgment below, whether or not that ground was relied upon or 

even considered by the district court)), cert. denied, -- U.S. 

00, 117 S. Ct. 1016, -- L.Ed.2d -- (1997). Only two of these 

grounds merit discussion.15 

 A. Intended Use 

 The district court observed in a footnote in its opinion 

that the evidence suggested the profiler was not being used as 

intended at the time of the accident. Under Azzarello, the 

inquiry is whether the product was safe for its intended use. 

Azzarello, 480 Pa. at 559, 391 A.2d at 1027; Marshall, 426 Pa. 

Super. at 162, 626 A.2d at 624. Although it did not rely on this 

basis in granting summary judgment, the district court opined 

that "[i]t is doubtful that Plaintiffs would be able to convince 

[the district court], or a jury, that using the profiler without 

 

 

15 CMI also sought summary judgment on the grounds that the 

profiler had been "substantially changed" and that Surace's 

conduct was the sole cause of the accident, but these claims are 

patently lacking in merit. 

 
34

the conveyor system was a way in which the profiler was intended 

to be used." Surace, 1995 WL 495123, at *9 n.11. 

 On appeal, CMI continues to assert that liability should not 

be imposed because the profiler was not used as intended. CMI 

submits that the profiler was not meant to mill rumble strips, 

and that it was not meant to be operated without the conveyor 

attached. Because the profiler was being operated without the 

conveyor attached, the debris generated by it had to be picked up 

manually. At the time of the accident, Surace was sweeping or 

shoveling debris out of its pathway. Surace testified that this 

was both the first time he had ever worked with the profiler 

without the conveyor attached, or that anyone had been injured 

when the machine was in back-up mode. 

 It is clear that "[u]nless the use giving rise to a strict 

liability cause of action is a reasonably obvious misuse 

. . . or unless the particular use . . . is clearly warned 

against, the manufacturer is not obviously exonerated." Metzgar 

v. Playskool, Inc., 30 F.3d 459, 465 (3d Cir. 1994). CMI's 

Engineering Manager John Frost Phillips testified that the 

machine was not intended to be operated without the conveyor 

attached, and that it was not intended to mill rumble strips. 

Although Phillips testimony is probative, there was no warning in 

the manual indicating that the conveyor should not be removed. 

Moreover, the profiler had an on/off switch to control the 

conveyor and, obviously, the profiler could be operated without 

the conveyor attached and used to mill rumble strips. We hold 

that, on the record before us, it cannot be determined as a 
35

matter of law that such use of the profiler was a "reasonably 

obvious misuse." Accordingly, this cannot serve as an 

appropriate basis for summary judgment. 

 B. Assumption of Risk 

 CMI argues that it is entitled to summary judgment because 

Surace assumed the risk of his injuries. Assumption of the risk 

is a viable defense to strict liability actions. McCown v. 

International Harvester Co., 463 Pa. 13, 15, 342 A.2d 381, 382 

(1975). To prevail on an assumption of the risk defense, a 

defendant must show "that the plaintiff knew of the defect and 

voluntarily and unreasonably proceeded to use the product or 

encounter a known danger." Wagner v. Firestone Tire & Rubber Co., 

890 F.2d 652, 657 (3d Cir. 1989)(citation omitted). "[W]hether 

the plaintiff knows of the existence of the risk, or whether he 

understands and appreciates its magnitude . . . is a question of 

fact, usually to be determined by the jury under proper 

instructions from the court. The court may itself determine the 

issue only where reasonable men could not differ as to the 

conclusion." Mucowski v. Clark, 404 Pa. Super. 197, 202, 590 A.2d 

348, 350 (1991) (quoting Staymates v. ITT Holub Indus., 364 Pa. 

Super 37, 49, 527 A.2d 140, 146 (1987)). 

 CMI asserts that Surace was aware of the danger of being in 

the path of the profiler while it was operating. To infer 

assumption of the risk from Surace's conduct, the conduct “must 

be such as fairly to indicate that [Surace was] willing to take 

his chances." Wagner, 890 F.2d at 657 (quoting Restatement 

(Second) of Torts § 496C, comment h). It is undisputed that 
36

Surace was responsible for signaling the operator when to reverse 

and that Snyder reversed the profiler without waiting for a 

signal from Surace. The evidence further indicates that Snyder 

had never before reversed the profiler without being signaled. 

Moreover, there is no evidence that Surace knew that, due to 

habituation, he was unlikely to hear the profiler's backup alarm 

if Snyder should advance without signaling. Therefore, the 

evidence is insufficient to establish as a matter of law that 

Surace knowingly assumed the risk of injury when he stepped into 

the profiler's pathway. Accordingly, summary judgment is not 

warranted on this ground. 

 V. BRINK'S EXPERT TESTIMONY

 Surace challenges the district court's exclusion of Harold 

R. Brink as an expert witness. Surace had proffered Brink, an 

electromechanical engineer, to testify to the inadequacy of the 

profiler's warning devices from an engineering standpoint. 

Brink's "expert opinion" was that the profiler was defective 

because of the obstructed view, and that the back-up alarm was 

insufficient to alert crew workers because of the phenomenon of 

habituation. The district court excluded Brink's testimony, 

concluding that he did not meet the Supreme Court's test for the 

admission of expert witnesses set forth in Daubert v. Merrell Dow 

Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 

(1993), and interpreted by us in In re Paoli R.R. Yard PCB 

Litig., 35 F.3d 717 (3d Cir. 1994) ("Paoli"). "A district 

court's ruling on admissibility of evidence is reviewed for abuse 

of discretion, `but to the extent the district court's ruling 
37

turns on an interpretation of a Federal Rule of Evidence [its] 

review is plenary.’" Paoli, 35 F.3d at 749. 

 The district court excluded Brink's testimony under 

Fed. R. Evid. 702, which provides: 

 If scientific, technical, or other 

 specialized knowledge will assist the trier 

 of fact to understand the evidence or to 

 determine a fact in issue, a witness qualified 

 as an expert by knowledge, skill, experience, 

 training, or education, may testify thereto in 

 the form of an opinion or otherwise. 

The first requirement under Rule 702 is that the witness 

“proffered to testify to specialized knowledge must be an 

expert.” Paoli, 35 F.3d at 741. Although the Rule mandates a 

policy of liberal admissibility, both with respect to the 

substantive as well as the formal qualification of experts, id., 

we agree with the district court that Brink did not qualify. 

 Brink earned a degree in electrical engineering from Lehigh 

University and has had an extensive career in electrical and 

mechanical engineering, including twenty years of employment with 

Mack Trucks. However, as the district court noted, Brink's 

theory of liability "hinged on habituation," an area in which 

Brink has no training and no experience. Surace contends that 

through his work experience, Brink "has become highly familiar 

with the concept of habituation and the need to avoid this 

phenomenon when designing construction machinery." But the 

record does not support this contention. Regarding habituation, 

Brink only averred generally that "over the years, I've learned 

that people can tune things out." Significantly, his testimony 
38

focuses on making the machines "user friendly" as opposed to 

considering the safety implications of a device.16 

 Moreover, there is no evidence in the record that Brink had 

experience in designing equipment from a human safety standpoint. 

 Indeed, in his deposition testimony, Brink testified that he did 

not design back-up alarms; rather they were purchased by Mack and 

he would make sure they were mounted and wired properly. Brink 

further stated that he did not remember ever having tested backup alarms, and that his knowledge of back-up alarm systems is 

limited to the extent to which they could be considered part of 

the design of an electrical/mechanical system. 

 Although he was a member in the Human Factors Society, Brink 

admitted that he had not read any literature on the phenomenon of 

habituation stemming from the alarms on construction machinery, 

nor had he ever participated in a habituation testing or study. 

Most significantly, Brink admitted that he relied on Dr. Lambert 

as the sole authoritative basis for his conclusions regarding 

habituation. Indeed, when questioned about the specifics of 

habituation, Brink replied "I'll let [Lambert] be the expert on 

 

 16 For example, Brink described his human factors experience 

as follows: 

Everything was aimed at making it as easy as possible 

for the person to operate the vehicle as far 

as locations of instruments and controls, 

location of steps for entrance and egress . . 

. we tried to design our product that was as 

manufacturable and maintainable as possible. 

 So to that extent, we always had human 

factors in our mind . . . . We never 

called it human factors, but we were 

interested in how the product related to the 

customer or user. 
39

this." While we have recognized that there is no set litmus test 

to qualify as an expert, see Hammond v. International Harvester 

Co., 691 F.2d 646, 653 (3d Cir. 1982) (permitting person with 

sales experience in automotive and agricultural equipment, who 

had also taught high school automobile repair, to testify as an 

expert witness in products liability action involving tractors), 

there is no evidence in the record to suggest that Brink 

possesses sufficient knowledge of the phenomenon of habituation, 

either through training or experience, to testify as an expert. 

Because habituation was the crux of his theory of liability, and 

indeed the central issue of design defect in the case, the 

district court properly concluded that Brink did not qualify as 

an expert. 

 VI. CONCLUSION

 For the foregoing reasons, the judgment of the district 

court will be reversed and the case remanded for further 

proceedings consistent with this opinion. However, the judgment 

will be affirmed insofar as it precluded the Brink expert 

testimony.