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. e du/thir dc ir c uit_1997/104Filed May 14, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3256

EDITH J. PARKS, Individually, Personal Representati ve of the Estate of Leslie E. Parks, Deceased and as pare nt and

next friend of Kori J. Parks

v.

ALLIEDSIGNAL, INC.; THE WARNER & SWASEY COMPANY; THE GRADALL COMPANY

EDITH J. PARKS, Individually, As Personal Represent ative of the Estate of Leslie E. Parks, Deceased, and as parent and next friend of Kori J. Parks,

Appellant

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 92-cv-02105)

Argued: February 11, 1997

BEFORE: GREENBERG, COWEN and McKEE, Circuit Judges

(Filed May 14, 1997)L. Palmer Foret, Esq. (argued)

Foret and Thompson 1275 K Street, N.W.

Suite 1101 Washington, D.C. 20005

Counsel for Appellant

Edith J. Parks

Michael D. Heintzman, Esq. (argued)

Kenneth F. Klanica Heintzman, Warren & Weis

707 Grant Tower Gulf Tower, 35th Floor Pittsburgh, PA 15219

Counsel for Appellees AlliedSignal, Inc. The Gradall Company

OPINION OF THE COURT

COWEN, Circuit Judge

.

Edith J. Parks (Mrs. Parks) appeals from the April 1, 1996, order of the United States District Court for the Western District of Pennsylvania denying her a new trial in a strict products liability tort action. She assert s that the district court erred in instructing the jury as to causation and contributory negligence, and in failing to take sufficient steps to ensure that defendants complied with disco very orders. We agree and will reverse and remand for a new trial.

I.

Mrs. Parks alleges that defective visibility featur es on AlliedSignal's Gradall G-600 excavating machine cau sed her husband's death. Leslie Parks (Mr. Parks) was a general laborer for Allegheny Sand, Inc. Mrs. Parks is his widow. Mr. Parks was killed while working with the Gradall machine, an excavator with two separate cabs that i s used

2for breaking boulders into smaller pieces. One cab is in the

front, as in an ordinary truck, and is occupied by the driver of the vehicle. The second cab, at the rear, is att ached to and controls the excavating arm.

The second cab, the arm, and the arm's counterweigh t are all in one line. The counterweight keeps the ma chine from tipping when the arm is used off-center. When the second cab operator moves the arm as if tracing a c ircle, the machine's entire arm (including the counterweig ht) swings around a central point. The operator sits in the middle, swinging along with the arm. The operator's seat faces the excavating arm, and the counterweight swi ngs out behind his back. The cab has no mirrors, so the ope rator has no view to the area behind him and only limited side visibility while operating the controls.

On the morning of the accident, Mr. Parks and two c oworkers, at the direction of their supervisor, ende avored to break some blocks of carbon. The machine's regular shovel had been replaced by Mr. Parks' employer with a chi pper attachment used for carbon-breaking. From outside t he machine, Mr. Parks directed his co-workers, who occ upied the two cabs and controlled the truck. Alan McMunn, sitting in the front cab, drove the machine to the back of a shed where the carbon was stored. William Kline, in the second cab, operated the excavator arm and boom.

Mr. Parks walked to the back of the shed. As McMunn pulled the machine into the shed, Mr. Parks directe d him. Mr. Parks told Kline to swing the boom to the left. The instruction sent the excavating arm's counterweight on a collision course with Mr. Parks. Mr. Parks was pres sed between the counterweight and the wall, causing his death.

Mrs. Parks sought to hold AlliedSignal liable on th e theory that it failed to install a rear-view mirror or alternative safety device on the Gradall machine. S he alleged that this omission made the product "unreas onably dangerous" because it caused the vision of the seco nd cab's operator to be needlessly circumscribed. Over objec tions by Mrs. Parks, the district court admitted evidence co ncerning Mr. Parks' conduct immediately prior to his death. The district court refused to charge the jury that Mr. Parks'

3conduct could be viewed as a legal cause of his dea th only

if it were unforeseeable.

The jury found that the product was indeed defectiv e, but

nevertheless returned a verdict for the manufacture r. The verdict was presumably based on the finding of the jury

that the defect was not "a substantial factor" in c ausing the

death. Parks' motion for a new trial was denied. Mr s. Parks argues that the district court erred when it failed to charge the jury that if Mr. Parks' conduct were foreseeabl e, such conduct could not have broken any chain of causatio n linking the alleged defect to his death.

In addition, during the trial Mrs. Parks sought to compel disclosure of information that she had requested du ring pre-trial discovery, but which allegedly had not be en divulged. That information concerned other accident s involving similar machines and the placement of mir rors on those machines. The district court granted the moti on to compel,1 but the record on appeal raises serious qu estions as to whether defendants properly complied with dis covery orders.

II.

The district court exercised jurisdiction pursuant to 28 U.S.C. § 1332 (1993), diversity of citizenship. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1993). Concerning the propriety of the charge deli vered to the jury, our standard of review is plenary, as we are reviewing whether the district court erred in formu lating a legal precept. See Hook v. Ernst & Young , 28 F.3d 366, 370 (3d Cir. 1994)(citing Griffiths v. CIGNA Corp. , 988 F.2d 457, 462 (3d Cir. 1993)(citing Rotondo v. Keene Corp , 956 F.2d 436, 438 (3d Cir. 1992))). We review the supervisio n of discovery by the district court for abuse of discre tion. See

United States v. 27.93 Acres of Land , 924 F.2d 506, 510 (3d Cir. 1991); Marroquin-Manriquez v. INS , 699 F.2d 129, 134 (3d Cir. 1983).

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1. App. at 528-531.

4III.

We initially review two key questions raised on thi s appeal. First, what must a plaintiff show in order to recover in a strict products liability tort action under Pe nnsylvania law, which incorporates section 402A of the Restate ment (Second) of Torts? Second, having admitted evidence of a decedent's conduct immediately before an accident, what must a district court do to fulfill its obligation to explain to a jury the appropriate use of such information?

A. Section 402A

Section 402A, which was adopted by the Supreme Cour t of Pennsylvania in Webb v. Zern , 220 A.2d 853, 854 (Pa. 1966), "imposes strict liability for injuries cause d by defective product design."2 Pacheco v. Coats Co., I nc. , 26 F.3d 418, 421 (3d Cir. 1994)(citing Lewis v. Coffin g Hoist Div., Duff-Norton Co. , 528 A.2d 590, 592 (Pa. 1987)). See also Phillips v. A-Best Products Co. , 665 A.2d 1167, 1170 (Pa. 1995)(acknowledging Pennsylvania's adoption of section 402A). In the words of the Pennsylvania Sup reme Court, "Section 402A . . . requires only proof that a product was sold in a defective condition unreasonably dang erous

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2. Section 402A provides:

(1) One who sells any product in a defective condit ion unreasonably dangerous to the user or consumer or t o his property is subject to liability for physical harm thereby c aused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selli ng such a product, and

(b) it is expected to and does reach the user or c onsumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies altho ugh

(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 produc t from or

entered into contractual relations with the seller.

RESTATEMENT (SECOND) OF TORTS § 402A (1965).

5to the user or consumer, and that the defect was th e

proximate cause of plaintiff's injuries." Walton v. Avco Corp. , 610 A.2d 454, 458 (Pa. 1992). "Manufacturers are held as guarantors upon a finding of defect and cau sation."

Id. at 462.

In order to prevail in a section 402A action, the p laintiff must show that a product is "unreasonably dangerous to
intended users for its intended use." Pacheco , 26 F.3d at 422 (emphasis omitted). In interpreting the phrase "intended use", we have held that "the intended use of a product `includes all those [uses] which are reason ably

foreseeable to the seller.' " Id . (quoting Sheldon v. West Bend Equip. Corp. , 718 F.2d 603, 608 (3d Cir. 1983)(alteration added)). Under the strict liabilit y test, therefore, a defendant is liable for causing injury to a person who was behaving in a foreseeable manner. Th is principle is reflected in the jury instruction reco mmended by Pennsylvania's Committee for Proposed Standard J ury Instructions, which the Pennsylvania Supreme Court endorsed in Azzarello v. Black Bros. Co., Inc. :

The product must . . . be provided with every eleme nt necessary to make it safe for [its intended] use, a nd without any condition that makes it unsafe for [its intended] use. If you find that 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[its intended] use, then the product was defective, and the defendant is liable for all harm caused by such def ect.

391 A.2d 1020, 1027 n.12 (Pa. 1978). See also Lewis v. Coffing Hoist Div., Duff-Norton Co. , 528 A.2d 590, 593 (Pa. 1987).

1. Foreseeability

Section 402A liability cannot be found if, at the t ime of the accident, the product was being used in an unforeseeable manner. The requirement of foreseeabi lity therefore enables strict liability to exist without transforming manufacturers into absolute insurers o f their products. The importance of this rule has been repe atedly

6demonstrated in the courts. In Sheldon , 718 F.2d at 608,

we held that "the district court[ ][should not] fai l[ ] to instruct the jury to the effect that the intended u se of a product includes any use which is reasonably forese eable to the seller." See also Schell v. AMF, Inc. , 567 F.2d 1259,1263 (3d Cir. 1977)(quoting Kuisis v. Baldwin-LimaHamilton Corp. , 319 A.2d 914, 921 n.13 (Pa. 1974))("whether a particular use of a product is ab normal depends on whether the use was reasonably foreseeab le by the seller."). In Eck v. Powermatic Houdaille , 527 A.2d 1012, 1019 (Pa. Super. 1987), the Superior Court of Penns ylvania reversed a trial court on the grounds that "the est ablished rule of law . . . requires consideration of `forese eability' " in the jury instruction in a strict products liability action.

The concept of foreseeability is relevant to strict products liability cases for the purpose of determining whet her the use that was made of a product at the time of the a ccident was one that the manufacturer could have reasonably anticipated. See Schell , 567 F.2d at 1263. In order to prevail in a section 402A products liability action , then, the plaintiff must show that: (1) a product defect (2) caused a harm (3) while the product was being used in a fore seeable

manner.

As the Pennsylvania Superior Court held in Sweitzer v. Dempster Sys. , 539 A.2d 880, 882 (Pa. Super. 1988)(citing

Salvador v. Atlantic Steel Boiler Co. , 319 A.2d 903, 907 (Pa. 1974)(emphasis added)):

The role of foreseeability in a product liability c ase is consistent with the broad and sound social policy underlying § 402A; that is, as between an innocent user of a product and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from t he use of a defective product shall be borne by the

manufacturer and/or seller

.

Of course, a defect may produce manufacturer liabil ity in a given case only when the harm caused is of the type threatened by the defect.

72. "Substantial Factor" Causation as it Relates to

Foreseeability

In determining how the elements of foreseeability a nd causation may properly be demonstrated in the insta nt case, we are again guided by Pennsylvania law. When addressing causation, Pennsylvania has rejected the "but for" test and adopted the "substantial factor" test as embodied in the Restatement (Second) of Torts § 431 , which provides:

The actor's negligent conduct is a legal cause of h arm to another if: (a) his conduct is a substantial fac tor in bringing about the harm, and (b) there is no rule o f law relieving the actor from liability because of the m anner in which his negligence resulted in the harm.

See Trude v. Martin , 660 A.2d 626, 632 (Pa. Super. 1995)(citing Whitner v. Von Hintz , 263 A.2d 889 (Pa. 1970)).

The courts of other states following the Restatemen t have

defined a "substantial factor" as one that is not " merely negligible." ACandS v. Asner , 686 A.2d 250, 260 (Md. 1996). "Stated differently, `[l]iability attaches n ot only to the dominating cause but also to any cause which consti tutes at any event a substantial factor in bringing about the injury .' " Dawson v. Bunker Hill Plaza Assocs. , 673 A.2d 847, 853 (N.J. Super. App. Div. 1996)(quoting Peer v. City

of Newark , 176 A.2d 249 (N.J. Super. App. Div. 1961)(emphasis added)). The substantial factor test has replaced the "but for" causation test in strict lia bility contexts precisely because in design defect cases i t is typically a matter of speculation whether the prese nce of a safety device would, in a given instance, have actu ally prevented a harm. See Yukon Equip., Inc. v. Gordon , 660 P.2d 428, 433 (Alaska 1983)(stating that "but for" causation jury instruction was improper in manufacturer's des ign defect case), overruled on other grounds , Williford v. L.J. Carr Invs., Inc. , 783 P.2d 235 (Alaska 1989).

Our review of Pennsylvania law dictates that a plai ntiff's conduct may be introduced to undermine a plaintiff' s claim that the defect caused his accident only insofar as the plaintiff's conduct was unforeseeable to the defend ant, even where the plaintiff played some part in settin g the

8accident in motion. Evidence concerning a decedent' s

possible role in bringing about his or her own deat h is admissible only to support defendant's claim that t he conduct was so "extraordinary" or "[un]foreseeable" that it would be unjust to hold the defendant liable for th e harm. See. e.g., Holloway v. J.B. Sys., Ltd. , 609 F.2d 1069, 1074 (3d Cir. 1979). When courts admit such testimony, t hey must elucidate the limited permissible uses of that evidence, as it is highly susceptible to misinterpr etation by the jury.

In determining causation, therefore, the task of th e jury is not simply to determine whether the plaintiff pl ayed a part in causing the accident. Rather, the threshold question is whether the plaintiff's actions were foreseeable . As noted above, the manufacturer is responsible for making t he product safe for all foreseeable uses. Decorative P recast Stone Erectors, Inc. v. Bucyrus-Erie Co. , 493 F. Supp. 555, 557 (W.D. Pa. 1980), aff'd , 642 F.2d 441 (3d Cir. 1981), informs us that under Pennsylvania products liabili ty law, if both a manufacturer's defect and a plaintiff's c onduct are found to be proximate causes, the plaintiff will re cover unless the defendant meets the burden of proving th at plaintiff's conduct was so unforeseeable as to cons titute a superseding cause. See infra , Sec. III.A.3. If foreseeable, the jury must find for the plaintiff unless it finds th at the defect did not play even a substantial, or more than negli gible, role in causing the plaintiff's injury. In Schell , 567 F.2d at 1263 (citing Barkewitch v. Billinger , 247 A.2d 603, 605)(Pa. 1968)), we explained that recovery is allowed where the absence of a safety device caused an injury of the type that could be expected from the foreseeable use of the p roduct.3

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3. The dissent writes that

The result the majority reaches does not take into account the distinction in Pennsylvania law between treatment o f a plaintiff's negligence which is the sole cause of the injury an d a plaintiff's negligence which combines with the defect in the pr oduct to cause the injury. Negligence of the second kind could def eat the claim only

if it is . . . unforeseeable.

Dissent at 29. The instant case is precisely of the second type: the jury explicitly answered yes to the question, "Was the G radall excavator

9The element of causation, while required, is not th e

primary focus of section 402A cases. Causation may be shown by process of elimination or circumstantial e vidence. In cases dealing with product malfunction, for inst ance, Pennsylvania appellate courts have consistently rev ersed trial courts for not sending to the jury cases in w hich causation had not been directly demonstrated. See, e.g. , Ducko v. Chrysler Motors Corp. , 639 A.2d 1204 (Pa. Super. 1994); Agostino v. Rockwell Mfg. Corp. , 345 A.2d 735 (Pa. Super. 1975); Burchill v. Kearney-Nat'l Corp. v. Pennsylvania , 468 F.2d 384 (3d Cir. 1972). Similarly, in MacDougall v. Ford Motor Co. , 257 A.2d 676, 680 (Pa. Super. 1969) overruled on other grounds , REM Coal Co. v. Clark Equip. Co. , 563 A.2d 128, 134 (Pa. Super. 1989),4 the Pennsylvania Superior Court stated:

The evidentiary requirements of negligence law dema nd proof that injury is proximately caused by a specif ic defect in design or construction because liability hinges upon whether the accident could have been avoided b y the exercise of reasonable care. In contrast, the

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defective at the time it was manufactured and sold? " App. at 432. The machine's defect was impaired visibility of precise ly the area in which

the accident occurred. In accordance with the disse nt's above description, the manufacturer of the defective prod uct in this case should be held liable unless the plaintiff's action s were unforeseeable.

See also the criticism of Foley articulated in Dillinger , discussed infra in this opinion at 14-16. The dissent points out that the jury responded "no" to the question, "Was the defect in the excava tor a substantial factor in bringing about Mr. Parks' death?" Dissent at 32. But our holding today is that the jury instructions did not properly illuminate,

inter alia , what constitutes a substantial factor in a strict products liability action, so this question was not adequate ly explained to the jury. Having found that the Gradall machine was defective , the jury could

have found that the defect was not a substantial fa ctor in causing plaintiff's injury only if it found that had the mi rror been in place, the driver would not have glanced into it before backin g. Only in this sense does causation remain a factor susceptible to dispu te. As this is a strict products liability action, the plaintiff's foreseea ble actions remain immaterial to the question of causation.

4. We note that the dissent does not address these cases.

10concern of both section 402A and warranty law is wi th

the fitness of the product.

The de-emphasis of causation is a natural corollary of the distinction between negligence and strict products liability. In strict products liability, the focus is on wheth er the product was sold in an unreasonably dangerous condi tion for reasonably foreseeable uses. See Carpenter v. K oehring

Co. , 391 F. Supp. 206, 210-211 (E.D. Pa. 1975), aff'd , 527 F.2d 644 (3d Cir. 1976). In negligence, by contrast , the focus is on whether a duty of care was breached. Se e Kuisis , 319 A.2d at 920. In either negligence or strict products liability, proximate cause defines "such l imits on recovery as are economically and socially desirable ." Klages v. General Ordnance Equip. Corp. , 367 A.2d 304, 313 (240 Pa. Super. 1976). In the products liability area, Pennsylvania has determined that it is economically and socially desirable to hold manufacturers liable for accidents caused by their defective products, without introdu cing negligence concepts of comparative fault that would weigh the manufacturer's negligent conduct against that o f the injured product user. See Walton , 610 A.2d at 462. See also

infra , Sec. III.A.4.

3. Superseding or Intervening Cause

The test for what constitutes a superseding cause r eflects the de-emphasis of causation in strict products lia bility litigation. Klages explains that a reasonably foreseeable intervening act cannot "satisfy the requirements of a superseding cause."5 367 A.2d at 313. In a section 402A strict liability tort claim such as that in the ins tant case, "a

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5. The RESTATEMENT (SECOND) OF TORTS § 440 defines superseding cause as "an act of a third person or other force which by i ts intervention prevents the actor from being liable for harm to another whi ch by its antecedent negligence is a substantial factor in bringing abou t." Superseding cause (and the related intervening cause, defined in sect ion 441) is a comparative negligence concept, whereby an actor's liability is diminished due to the injured party's own negligenc e. In order to be compatible with strict products liability, the conc ept must be substantially narrowed to eliminate any foreseeable conduct of the injured party.

11negligent intervening act, to relieve defendant of

accountability, must be . . . `so extraordinary as not to have been reasonably foreseeable.' " Eshbach v. W.T. Gra nt's and

Co. , 481 F.2d 940, 945 (3d Cir. 1973)(quoting Dorsey v

. Yoder Co. , 331 F. Supp. 753, 764 (E.D. Pa. 1971)(quoting

Wilson v. American Chain and Cable Co. , 364 F.3d 558, 562 (3d Cir. 1966))). Similarly, in Baker v. Outboard M arine Corp. , 595 F.2d 176, 182 (3d. Cir. 1979), we held that t he intervening negligence of a third party could serve as a superseding cause of injuries to shield defendant manufacturer from liability to plaintiff only if it were "so extraordinary as not to have been reasonably forese eable."

Id. at 182 (quoting Eshbach , 481 F.2d at 945). See also

Williford , 783 P.2d at 237 (act may constitute superseding cause only if, in addition to being unforeseeable b y defendant, it was highly extraordinary).

In short, even if an intervening but foreseeable ac tion is responsible for the major share of a strict product s liability injury, that action cannot ordinarily be held to be the legal cause of the injury. Instead, it is removed from th e picture, and liability attaches to the remaining causal acto r or actors. Here, if the possibility of a person standi ng in the path of the Gradall is found to be foreseeable or o rdinary, Mr. Parks' actions cannot legally be viewed as disr upting or otherwise playing a part in the causal chain that

culminated in his death.

4. Rejection of Comparative Fault

The above-described approaches to foreseeability, causation, and superseding cause in Pennsylvania st rict products liability cases are compelled by Pennsylva nia's rejection of comparative fault. Of particular relev ance to the instant case, Walton explained that

[The Pennsylvania Supreme] Court has continually

fortified the theoretical dam between the notions o f negligence and strict "no fault" liability. It woul d serve only to muddy the waters to introduce comparative f ault into an action based solely on strict liability

.

610 A.2d at 462 (citations omitted)(emphasis added) . It has been noted by numerous courts that "[t]he Pennsylva nia

12Supreme Court, perhaps more than any other state

appellate court in the nation, has been emphatic in divorcing negligence concepts from product-liabilit y doctrine." Kern v. Nissan Indus. Equip. Co. , 801 F. Supp. 1438, 1440 (M.D. Pa. 1992)(quoting Conti v. Ford Mo tor Co

., 578 F. Supp. 1429, 1434 (E.D. Pa. 1983), rev'd on o ther grounds , 743 F.2d 195 (3d Cir. 1984)).

The Pennsylvania Supreme Court recently explained i ts reasons for not extending the defense of comparativ e negligence to a strict products liability action:

Our position is not based solely on the problem of the conceptual confusion that would ensue should negligence and strict liability concepts be comming led, although that concern is not negligible. Rather, we think that the underlying purpose of strict product liability is undermined by introducing negligence concepts into it. Strict product liability is premi sed on the concept of . . . liability for casting a defect ive product into the stream of commerce.

The deterrent effect of imposing strict product liability standards would be weakened were we to al low actions based upon it to be defeated, or recoveries reduced by negligence concepts

.

Kimco Dev. v. Michael D's Carpet Outlets , 637 A.2d 603, 606-607 (Pa. 1993)(emphasis added).

Similarly, in McCown v. Int'l Harvester Co. , 342 A.2d 381 (Pa. 1975), the plaintiff, as here, was injured by an industrial vehicle. According to the plaintiff, the machine's design was defective and caused his injuries. The d efendant argued that plaintiff's contributory negligence sho uld have been considered either to reduce the plaintiff's pe rmissible recovery or as a defense to liability. The Pennsylv ania Supreme Court disagreed, explaining that it would b e unwise to "create a system of comparative assessmen t of damages for 402A actions." Id. at 382.

Pennsylvania's wish to avoid "muddy[ing] the waters " dictates that in discussing causation, the comparat ive fault of the parties involved is immaterial. Rather, the focus is again on whether the activity engaged in by the pla intiff

13was foreseeable. If foreseeable, and the defect is found to

have been a cause of the injury, the plaintiff's ac tions cannot preclude defendant liability. Any other appr oach would require weighing negligence or lack of care, which would inject comparative fault into strict products liability.

In Dillinger v. Caterpillar, Inc. , 959 F.2d 430 (3d Cir. 1992), which undertook an extensive survey of Pennsylvania products liability law, the trial cour t's final charge expressly permitted the jury to consider pla intiff's alleged negligence when determining whether defenda nt's product caused his injuries: "The defendant denies that it is liable for plaintiff's injuries. Defendant conte nds that the 773 truck was not defectively designed, and that an y injuries sustained by plaintiff were caused by the acts of plaintiff himself." 959 F.2d at 440. In Dillinger , we reversed, disapproving this jury charge because we found that it "effectively framed the issue as one of contributor y negligence . . . ." Id. at 440 n.18. The defendant "point[ed] to a line of cases which suggest[ ] that, although evidence of a plaintiff's contributory negligence is ordinar ily inadmissible, it is admissible to rebut the `causat ion' prong of a products liability claim." Id. at 441.

We rejected the defendant's arguments and found the line of cases cited to be "in some instances[irreco ncilable] with the Pennsylvania Supreme Court's declarations on this subject." Id. at 441. We also distinguished that line of cases from the case then before us, by explaining that in the cases cited by the defendant, "the plaintiff's cond uct [had] actively contributed to the cause of the accident, [rather than] merely [failing] to prevent the accident attr ibutable to

the defect." Id. at 442. We reasoned in Dillinger that the evidence of the plaintiff's conduct was especially inadmissible when the conduct was "merely insuffici ent to prevent the accident attributable to the defect." I d. In Dillinger , therefore, we left open the question of whether a different result would obtain where the plaintiff's conduct had been more than "merely insufficient to prevent the

accident attributable to the defect." Id.

The argument of the defense in the instant case--th at a plaintiff's foreseeable conduct can break the causa l chain set in motion by a product defect--was championed i n

14Foley v. Clark Equip. Co. , 523 A.2d 379 (Pa. Super. 1987).

But as we stated in Dillinger and reiterate today, we believe that case is inconsistent with Pennsylvania strict products liability law. Dillinger , 959 F.2d at 443. In Foley , the Superior Court endorsed the admission of evidence o f a plaintiff's contributory negligence in a section 40 2A suit. There, as here, the plaintiff was struck by an indu strial vehicle when the operator failed to notice him. The plaintiff alleged that the manufacturer had defectively desig ned the vehicle in that, inter alia , the driver's view was improperly obstructed. The Superior court stated that "neglige n[t]

conduct is admissible where it is relevant to estab lish causation[,]" and plaintiff's allegedly negligent b ehavior is admissible for this purpose. Foley , 523 A.2d at 393. Nonetheless, we explained in Dillinger that

there is no meaningful way to reconcile the view th at a plaintiff's negligence of the type involved in Fole y should be admitted to undercut causation with the Supreme Court's prohibition of the introduction of a plaintiff's negligence to defeat liability. . . . I n Foley

, the plaintiff did not observe the oncoming forklift and did not move out of its way. Because the driver similarly had not noticed the plaintiff, the driver crashed into him. Although the plaintiff contended that the design of the forklift . . . was defective beca use, in part, . . . [of the] obstructed . . . view, the cou rt permitted the defendant to introduce evidence of th e plaintiff's inattention because the accident could have been avoided if the plaintiff had not acted neglige ntly. . . . [T]here is no principled reason to prohibit e vidence of the plaintiff's negligence in McCown but permit evidence of an almost identical character in Foley

.

959 F.2d at 443-44. The fact that the plaintiff in Foley could have moved out of the way does not mean that Foley caused the accident, and that the driver (who also could have moved out of the way) did not cause the accide nt. Obstructed vision was a proximate cause of plaintif f's injuries in Foley ; no meaningful distinction can be made between the operator's and the plaintiff's roles in causing

the accident.

15In Dillinger , although we did not endorse as dispositive

the distinction between plaintiffs who "set [their] accident[s] in motion" and those who merely fail to stop them, we limited our holding to cases in which the plaintiff merely failed to stop his injury from being caused by a pr oduct

defect. 959 F.2d at 444. This distinction is somewh at artificial, as plaintiff's conduct will often be su sceptible to characterization in either category. But assuming t hat in directing the operator to swing the boom, Mr. Parks "set the accident in motion," we will now address the questi on of the permissible uses of evidence of plaintiff's con duct where such conduct has actively "set the accident i n motion." Id.

Based on the foregoing discussion of the permissibl e uses of plaintiff's conduct evidence in section 402A act ions, we find that the evidence of Mr. Parks' actions preced ing his death were appropriate for the jury to consider onl y if they decided that those actions were not reasonably fore seeable or were otherwise extraordinary. In failing to put that test to the jury, the district court gave the impression that the jury's function was to assess the relative contribu tions of Mr. Parks and the machine's defect in causing Mr. P arks' death. As a matter of law, however, strict products liability demands that a plaintiff's foreseeable actions can never displace manufacturer liability when a product defe ct was a substantial factor in causing the plaintiff's inj ury.

B. Jury Instructions

When reviewing the sufficiency of jury instructions , our task is to determine whether the "instruction was c apable of confusing and thereby misleading the jury." Benn is v.

Gable , 823 F.2d 723, 727 (3d. Cir. 1987)(quoting United States v. Fischbach & Moore, Inc. , 750 F.2d 1183, 1195 (3d Cir. 1984)). Defendants contend that the district c ourt's instructions were sufficient. But the several pages of sometimes contradictory instructions nowhere state that the jury must not consider the foreseeable or ordin ary uses of a product to be a legal cause of an accident, in the sense

that foreseeable actions cannot limit a defendant's liability. The actions of Mr. Parks may be weighed in the caus ation calculation only if the jury finds them to have bee n

16unforeseeable or extraordinary. Omission of this

requirement is a clear violation of our holding in Sheldon

, 718 F.2d at 608 ("On remand . . . the district cour t should . . . charge the jury that the intended use of a pr oduct includes all those [uses] which are reasonably fore seeable to the seller.").

Furthermore, our holding in Baker demonstrates that

instructions that contain some characterizations of the law that are accurate will nonetheless be unacceptably tainted by the presence of other, misleading comments:

The district court stated in its opinion denying th e new trial motion that its instruction that there may be more than one proximate cause, and that Outboard would be liable if a defect [were] "[a] proximate cause," adequately informed the jury that it could find[the defendant] to be negligent, and further find her negligence to be . . . `a' proximate cause[,] was g reatly diminished [by other instructions]. . . . .[T]he ca se will

be remanded for a new trial.

Baker , 595 F.2d 176, 184 (citation omitted).

In Eshbach , we reversed the district court because it failed to either "remove the question of [third-par ty] negligence entirely from the case or, if it was to be considered, to instruct the jury as to the limits o f its application." 481 F.2d at 945. Strict liability mea ns that an entity is liable for all accidents caused unless th ey are extraordinary or unforeseeable, regardless of the l evel of vigilance demonstrated by others.

In the present case, the district court's instructi ons to the jury spread over several pages of the transcrip t, and the summary of the instructions offered at the end miss tated the appropriate analysis. The district court accura tely stated,

if you find that a defect in a product was a substa ntial factor in bringing about harm, the manufacturer and/or seller of the product is responsible for tha t harm even though you may have found that there were

other substantial factors as well as a defect in br inging

about the harm.

17App. at 414-15. But the district court impermissibl y

blurred the matter in summarizing the instructions:

If you determine that the defendants manufactured and sold the excavator lacking an element necessary to

make it safe for its intended use and that the lack of

this element or elements was a substantial factor i n bringing about the incident which resulted in Mr. Parks' death, then you will find that the defendant s are liable to the plaintiff. Otherwise, you will find i n favor of the defendants. Likewise, your verdict will be f or defendants if you find that either the conduct of t he decedent's employer . . . was a legal cause of the accident or if you find that the conduct of Mr. Par ks

himself or the conduct of his co-workers was also a legal cause of the accident and that the alleged de fect was not a legal cause of the accident.

So, in order to find for the defendants, you must find that the alleged defect was not the legal cause of the

accident

.

App. at 418-19 (emphasis added). Here, in concludin g, the court instructed that the defendant will prevail if "you . . . find . . . that the alleged defect was not the legal cause of

the accident." The use of "the" rather than "a" ind icated that the legal cause must be predominant, or greate r than all others, rather than one of several, of varying (albeit "substantial") weights.

As noted above, the primary reason that the instruc tion is fatally erroneous is not its particular wording but that it failed to require the jury to analyze whether Mr. P arks' actions were unforeseeable or extraordinary. If the jury

found that the actions were neither unforeseeable n or extraordinary, it could not have found his actions to be "a legal cause" of his injury. Yet in the above-quoted instruction, the court indicated that Mr. Parks' co nduct could be a "legal cause of the accident" without ex plaining that this was true only if the conduct were extraor dinary or

unforeseeable.

The centrality of foreseeability to Pennsylvania st rict products liability law was recently reaffirmed in C hilders v. Power Line Equip. Rentals, Inc. , 681 A.2d 201, 208-209 (Pa.

18Super. 1996), which held that evidence of an injure d party's

conduct was properly barred from a strict liability action

because the defendant had failed to demonstrate tha t the injured party acted in an "unforeseeable," "reckles s," "extraordinary," or "outrageous" manner. Here, havi ng admitted evidence of plaintiff's conduct, the distr ict court is obligated firmly to instruct the jury that a plaint iff's comparative fault is no defense to defendant liabil ity, and should not be weighed against the manufacturer's al leged defect as a potential cause of the injury.

IV.

We now shift our focus from the jury instructions a t trial to the discovery process. It appears that defendant s did not produce discovery information concerning other simi lar accidents, of which there were at least five. Defen dants

concede that all information on these five other ac cidents came from the investigation conducted by plaintiff, and was not disclosed by defendants in discovery. AlliedSig nal introduced specific information about these acciden ts only at trial, when arguing that evidence of their occur rence should be inadmissible. In addition, the record con tains

credible evidence that defendants failed to reveal the existence of safety mirrors on comparable machines, including the Gradall 880-C.

These apparent discovery abuses did not become evid ent
until trial. While we make no definitive assessment s as to the propriety of defendants' actions, on retrial th e district court is directed to superintend with care and be c onfident that defendants properly and adequately disclose ma terials to which the plaintiff is rightfully entitled. Spec ifically, discovery orders that the court entered in the orig inal trial, and which apparently were not heeded in full, shall be zealously policed by the district court.

V.

For the reasons stated above, we will reverse the d istrict court's April 1, 1996, denial of appellants' motion for a new

trial and remand for a new trial.

19McKEE, Circuit Judge , concurring:

I join Judge Cowen's opinion. However, I write sepa rately to state my understanding of what we hold today, an d to comment upon the problems I perceive in the approac h taken by our colleague, Judge Greenberg. In my view , that approach opens the door that the Pennsylvania Supre me Court closed in Azzarello v. Black Brothers, Co. , 391 A.2d 1020 (Pa. 1978), and beckons comparative fault to r eenter discussions of strict liability. Any discussion of strict liability must adhere to the policy considerations endemic to § 402A of the Second Restatement of Torts. As we noted in Dillinger v. Caterpillar, Inc. , 959 F.2d 430 (3d Cir. 1992) in our discussion of Berkebile v. Brantly Helicopte r Corp.

, 337 A.2d 893 (1975):

The law of products liability developed in response to changing societal concerns over the relationship between the consumer and the seller of a product. T he increasing complexity of the manufacturing and distributional process placed upon the injured plai ntiff a nearly impossible burden of proving negligence where, for policy reasons, it was felt that a selle r should be responsible for injuries caused by defect s in his products.

959 F.2d at 435 (citation omitted).

Judge Greenberg reads our decision in Dillinger as precluding "inject[ion]" of "negligence principles in strict liability actions" only in those circumstances wher e the plaintiff's conduct "exacerbated or failed to preve nt an injury caused by the defect." Dissent at 28. Judge Greenberg also states that the law of Pennsylvania does not preclude consideration of a plaintiff's conduct whe re that "conduct . . . caused an accident independently of the defect in the product." Dissent at 28. However, Jud ge Greenberg over simplifies the range of causes that typically lie behind an injury. In most cases (including thos e relied upon by Judge Greenberg) a reasonable fact finder c ould conclude that the injury resulted from a combinatio n of plaintiff's conduct and the challenged defect. Judg e Greenberg's analysis would seem to permit the use o f plaintiff's conduct in these cases. However, I thin k that

20neither our previous decision in Dillinger nor our decision today allows principles of contributory negligence to govern a dispute merely because "plaintiff's conduct set t he events leading to the accident in motion" as Judge Greenbe rg believes. Dissent at 28.

Judge Greenberg relies upon Bascelli v. Randy, Inc. , 488 A.2d 1110 (Pa. Super. Ct. 1985), and Gallagher v. I ng , 532 A.2d 1179 (Pa. Super. Ct. 1987) and our discussion of them in Dillinger

to support his conclusion that we have barred evidence of plaintiff's conduct only in situations where that conduct exacerbates an injury caused by the defect, or failed to prevent an injury caused by it, and not w here the conduct causes an injury independent of the defect. Clearly, one can not be held liable in a strict lia bility action unless the claimed defect actually caused the injury. In other words, the defect must have been "a substanti al factor in bringing about the harm." Powell v. Drumh eller

, 653 A.2d 619, 622 (Pa. 1995), see dissent at 26. Ho wever, plaintiff's conduct is not relevant to this inquiry simply because such conduct may have also contributed to t he injury. Before plaintiff's conduct can be admitted it must be viewed in context with the societal policies tha t lie behind strict liability and that assist in determin ing causation under Dillinger

.

In Bascelli , the Pennsylvania Superior Court did hold that evidence that the plaintiff had been driving a motorcycle 100 miles per hour was relevant to estab lish causation, and could not be excluded merely because it also intended to show contributory negligence. 488 A.2d at 113. However, as we noted in Dillinger , Bascelli no longer provides us with guidance. In deciding Bascelli , the Pennsylvania Superior Court cited Greiner v. Volkswagenwerk Aktiengeselleschaft , 540 F.2d 85 (3d Cir. 1976) which, as we noted in Dillinger , was decided prior to

Azzarello , supra , wherein the Pennsylvania Supreme Court "significantly broadened the scope of liability und er § 402A." Dillinger , 959 F.2d at 442. In Dillinger we did state the following:

Of more significance, the plaintiff's conduct in Ba scelli actively contributed to the cause of the accident, while [plaintiff's] conduct in this case was merely insuf ficient

21to prevent the accident attributable to the defect of the

[product]. Thus, here the evidence was compelling t hat the defect which resulted in the hose damage, rathe r than [plaintiff's] conduct, triggered the accident.

959 F.2d at 442.

That statement, however, is best understood when vi ewed in context with the policy repercussions of ignorin g conduct which, though foreseeable, is so unreasonable as to not justify finding the manufacturer liable even though the manufacturer is deemed to be the "guarantor" of its products.1 I submit that had Bascelli been exceeding the speed limit by only 5 miles an hour rather than roc keting through space at 100 miles per hour his conduct wou ld not have been relevant to determining if the alleged de fect (as opposed to his own behavior) was responsible for hi s loss of control. However, his conduct was so outrageous tha t it amounted to assumption of the risk, misuse of the p roduct, and highly reckless conduct. In Dillinger we hypothesized that all three of those theories continue to be per missible defenses in a § 402A proceeding. 959 F.2d at 445-46 . I believe that absent conduct which is so outrageous as to fall into one of those three categories the policy

considerations that hold a manufacturer liable as a guarantor of its product control. However, once the plaintiff's conduct becomes so unreasonable and extraordinary as to amount to either assumption of the risk, misuse of the product, or highly reckless con duct, that conduct becomes relevant to causation as society ha s no interest in protecting such plaintiffs from the con sequences of that kind of irresponsibility. Moreover, it is u njust to shift the cost of such injury from the person whose outrageous conduct caused it (or contributed to it) to the manufacturer who will in turn pass that cost on to

innocent consumers.

___________________________________________________ ______________

1. As we noted in Dillinger :

The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with every ele ment necessary to make it safe for [its intended] use, and without any condition that makes it unsafe for [its intended use].

959 F.2d at 436 (brackets in original).

22This policy concern is written into the law of stri ct

liability through the mechanism of causation. Accor dingly, we observed in Dillinger :

[t]he. . . issue of causation is raised when the plaintiff's action is so reckless that the plaintif f would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding clause.

959 F.2d at 446 (internal quotations omitted) (inte rnal citations omitted).

In Pennsylvania, products liability law "shift[s] t he loss to the party who can most easily bear it." Staymates v . ITT

Holub Industries , 527 A.2d 140, 143 (Pa. Super. Ct. 1987). However, this general policy does not operate where it would cause an inappropriate or unjust result. Gall agher v. Ing , 532 A.2d 1179 (Pa. Super. Ct. 1987) (cited by Jud ge Greenberg), is another example of this. There, the

administratrix of the deceased driver of an automob ile sued the manufacturer of the automobile alleging that a design

defect had caused the decedent driver to lose contr ol in a fatal car crash. The evidence that was produced at trial established that, at the time of the accident, the driver had a blood alcohol content of .18 percent. The jury wa s allowed

to consider that evidence as it tended to establish that the decedent was "unfit to drive a vehicle safely," 532 A.2d at 1181, and that the intoxication; not the alleged de fect, caused the accident. The Pennsylvania Superior Cour t noted that such evidence was appropriate, not becau se it established intoxication per se, but because it est ablished intoxication to the extent of rendering the deceden t unfit to drive. The court noted that the defendant had produ ced evidence that the decedent had been drinking scotch for a period of approximately 1-1/2 hours before driving his car

home and that some witnesses had observed that he h ad been "driving at a high rate of speed on a dark, wi nding and hilly road approximately one mile from the scen e of the

accident." Id . at 1182. The manufacturer had also produced expert testimony as to the ability of someone with a blood alcohol concentration of .18 percent to safely oper ate a car. On appeal the court noted that with a blood alcohol level that high,

23virtually every person, adult or child. . . is mark edly impaired with respect to . . . judgment, the respon se time, . . . the coordination. . . all of these thin gs are progressively and markedly impaired. . . forensic toxicologists and everybody else says that this kin d of a blood alcohol level, a person's likelihood of bei ng involved in a fatal accident is over 20 times great er than that of a sober person. . . He can still drive

.. . but not safely.

532 A.2d 1182-3. Accordingly, the evidence was prop erly admitted to show that the decedent was "incapable o f driving safely and that this was the legal cause of his loss of control of the vehicle he was driving." Id . at 1183.

Thus, Gallagher

does not support Judge Greenberg's position to the extent that might at first appear a lthough he correctly notes it as an example of a case where a plaintiff's conduct did set the events leading to the accident in motion. See dissent at 28. In theory, the conduct i n Gallagher would have set the events leading to the accident in motion had the evidence shown marginal impairmen t or that the driver had exceeded the speed limit by 5 m iles per hour. Yet, I do not believe that in those situation s a jury could consider plaintiff's conduct on the issue of causation -- even if a manufacturer could show that had the p laintiff not been exceeding the speed limit, or not been sli ghtly impaired, the particular defect would not have been sufficient by itself to cause loss of control. Few among us can honestly state that he or she has never exceede d a posted speed limit. That eventuality is most certai nly foreseeable. Yet, that circumstance will not consti tute an "intervening cause" and therefore justify considera tion of plaintiff's conduct in a strict liability action un less that

conduct rises to such a level as to constitute assu mption of the risk, misuse of the product, or highly reckless conduct. See Dillinger , supra . This is so even though plaintiff's conduct "set the events leading to the accident in motion." Thus, Judge Greenberg reads too much into the holdi ng of Gallagher . Moreover, the discussion in Gallagher focused upon the reliability of the blood test, and the pro priety of admitting evidence of intoxication in view of its p ropensity to generate bias. There is almost no discussion of the strict

24liability and causation issue that we address here. The

court's entire discussion of strict liability is at the very end of the opinion and is, in its entirety as follows:

Appellant also argues that the trial court erred in

,. . . (3) allowing appellee's counsel after ruling that comparative negligence principles had no applicatio n, to suggest to the jury that the defendant's neglige nce was the sole cause of the accident. We have examine d these contentions carefully and conclude that they have been adequately analyzed and properly decided by the trial judge. Suffice it to say that appellant's contentions are lacking in merit and do not warrant a new trial.

532 A.2d at 1185.

In summary, I believe Judge Cowen correctly summari zes the state of Pennsylvania law under § 402A of the

Restatement. Evidence of the decedent's actions in the instant case is appropriate only if a jury determin ed that such actions were "not reasonably foreseeable or we re otherwise extraordinary." Majority Op. at 16, (emph asis added). I do not feel that Judge Greenberg's analys is allows for any meaningful distinction between circumstance s where plaintiff's conduct becomes relevant to causa tion, and those where it is precluded by policy considera tions that drive the doctrine of strict liability as enun ciated by the Pennsylvania courts. If the alleged defect was "a substantial factor in bringing about the harm," abs ent assumption of risk, misuse of product, or highly re ckless conduct, it is irrelevant whether plaintiff's condu ct set the events in motion or merely failed to prevent an inj ury, and I do not read our decision in Dillinger to the contrary.

25GREENBERG, Circuit Judge , dissenting.

Judge Cowen has written a thoughtful opinion in a difficult field of law, but I am forced to dissent because I interpret aspects of Pennsylvania products liabilit y law fundamentally differently. I first will explain my view of the law and then explain my differences with the majori ty and the consequences stemming therefrom.

I agree with much of the majority's analysis of Pennsylvania law, including its discussion of the Pennsylvania Supreme Court's strong resistance to t he inclusion of comparative fault principles in strict liability actions. I emphasize, however, that the Pennsylvani a courts have been equally strong in maintaining the require ment that the plaintiff in a strict liability action bea r the burden of showing both that the product was defective and that the defect proximately caused the injuries in question. See Berkebile v. Brantly Helicopter Corp. , 337 A.2d 893, 898 (Pa. 1975) ("Neither can plaintiff recover by provi ng a defect in the product absent proof of causation, as where plaintiff sustains eye injury while not wearing defective saf ety glasses."); Carrecter v. Colson Equip. Co. , 499 A.2d 326, 329 (Pa. Super. Ct. 1985) (plaintiff must show defect w as a "substantial factor in bringing about" injuries suf fered); Sherk v. Daisy-Hedden , 450 A.2d 615, 617 (Pa. 1982) ("Liability in ... strict liability is not imposed upon a manufacturer simply for the manufacture of a defect ive product.").

Thus, evidence of the plaintiff's or a third party' s conduct, whether negligent or not, is admissible to rebut the allegation that a defect actually caused the in jury. Nevertheless, the Pennsylvania Supreme Court has he ld that a plaintiff's or third party's conduct does no t relieve the defendant of liability for a defect which was a substantial factor in bringing about the accident u nless the conduct constituted a superseding or intervening ca use of the injury. Thus, the defendant is liable as long a s the defect was "a substantial factor in bringing about the

harm." Powell v. Drumheller , 653 A.2d 619, 622 (Pa. 1995), citing Jones v. Montefiore Hosp. , 431 A.2d 920, 923 (Pa. 1981). Of course, for a superseding cause to reliev e a defendant whose conduct has been determined to be a

26substantial factor in causing the harm, it must be "so

extraordinary as not to have been reasonably forese eable."

Powell , 653 A.2d at 623; Kuisis v. Baldwin-Lima-Hamilton Corp. , 319 A.2d 914, 920 (Pa. 1974). Accordingly, ordina ry negligence will not do. The majority recognizes thi s point.

See , e.g. , Majority Op. at 7 ("[T]he plaintiff must show tha t: (1) a product defect (2) caused a harm (3) while th e product was being used in a foreseeable manner."); Majority Op. at 9 ("If foreseeable, the jury must find for the plai ntiff unless it finds that the defect did not play even a substa ntial, or more than negligible, role in causing the plaintiff 's injury.").

Plainly, then, there is a distinction between a pla intiff's conduct which, rather than the defective product, w as the cause of the injury and a plaintiff's conduct that was so extraordinary and unforeseeable that it was a super seding cause of the injury. Yet, if the injury is attribut able to a plaintiff's conduct of either character, i.e. , conduct that was the cause of the injury or unforeseeable supers eding conduct, the defendant will not be liable even if i ts product was defective. An understanding of Pennsylvania pro duct liability law requires that these concepts be kept separate so that a court understands the category into which the conduct fits when a defendant attempts to attribute the plaintiff's injury to his or her conduct.

The Pennsylvania Supreme Court has not spoken explicitly on the issue of how evidence of plaintiff and thirdparty conduct should be treated at trial, but the Pennsylvania Superior Court has addressed the issue in a number of cases. In Bascelli v. Randy, Inc. , 488 A.2d 1110 (Pa. Super. Ct. 1985), the Superior Court held that evidence of the plaintiff's negligent conduct in driving his motorcycle approximately 100 miles per hour at the time of the

accident was admissible to show that the excessive speed, and not the alleged defect in the product, caused t he

accident. Id. at 1113. In Gallagher v. Ing , 532 A.2d 1179 (Pa. Super. Ct. 1987), the court approved the admis sion of

evidence of the decedent's blood alcohol level "to show that the decedent was so intoxicated that he was incapab le of driving safely" and that the intoxication, rather t han a product defect, caused the accident. Id. at 1183. These cases illustrate the use of a plaintiff's conduct t o

27demonstrate that the injury cannot be attributed to a

defective product.

We considered how to treat a plaintiff's conduct in Dillinger v. Caterpillar, Inc. , 959 F.2d 430 (3d Cir. 1992). In Dillinger , we refused to allow evidence of the plaintiff's contributory negligence because the evidence could show only that he failed to prevent an accident resultin g from a sequence of events set into motion by a defect in t he product. Id. at 442. Although in Dillinger we characterized the trend in the Pennsylvania Superior Court increa singly to inject negligence principles into strict liabili ty actions as inconsistent with the rulings of the Pennsylvania S upreme Court, we drew a clear distinction between evidence of conduct which caused an accident independently of t he defect in the product and evidence of conduct which exacerbated or failed to prevent an injury caused b y the defect. We explicitly held only the latter type of evidence

inadmissible. Id. at 442, 444 n.23. Thus, we distinguished

Bascelli and Gallagher

as cases where the plaintiff's conduct set the events leading to the accident in m otion. A number of district courts in this circuit have appl ied this approach. See , e.g. , Ballarini v. Clark Equip. Co. , 841 F. Supp. 662, 665 (E.D. Pa. 1993), aff'd , 96 F.3d 1431 (3d Cir. 1996) (table); Kern v. Nissan Indust. Equip. C o. , 801 F. Supp. 1438, 1441-43 (M.D. Pa. 1992), aff'd , 16 F.3d 404 (3d Cir. 1993) (table).

A reading of Dillinger

which requires the exclusion of all evidence of foreseeable conduct by the plaintiff re lating to causation would violate the clear requirement of th e Pennsylvania Supreme Court that a plaintiff in a st rict liability action must prove that the defect in the product caused the injuries. See Berkebile , 337 A.2d at 898. See also Kramer v. Raymond Corp. , 840 F. Supp. 336, 338 (E.D. Pa. 1993) (holding that evidence of plaintiff's con duct is

admissible to demonstrate that defect was not a cau se of injury). After all, it hardly could be said that it is unforeseeable that a motorcycle driver will go at a high speed. Nevertheless, in Bascelli evidence of that speed was admissible to show that speed, rather than a produc t defect, caused the accident. Thus, Bascelli was not a superseding cause case.

28It seems to me that the majority erroneously reads

Dillinger to require the exclusion of all evidence of foreseeable conduct of a plaintiff relating to caus ation, for it indicates that the jury instruction was "fatally erroneous [because] it failed to require the jury to analyze whether Mr. Parks' actions were unforeseeable or extraordinary. " Majority Op. at 18. The majority then indicates, er roneously in my view, that "[i]f the jury found that the acti ons were neither unforeseeable nor extraordinary, it could n ot have found his actions to be a `legal cause' of his inju ry." Id. The result the majority reaches does not take into acco unt the distinction in Pennsylvania law between treatment o f a plaintiff's negligence which is the sole cause of t he injury and a plaintiff's negligence which combines with a defect in the product to cause the injury. Negligence of the second kind could defeat the claim only if so extraordinar y as to be

unforeseeable.

I now consider the jury charge. The district court instructed the jury that there were four possible c auses of the accident, the alleged defect in the product, Pa rks' conduct, his employer's conduct, and his co-worker' s conduct, all of which could be legal causes of the accident. App. at 416-17. The court further instructed the ju ry that

if it found a defect and that "the defect was a sub stantial factor in causing the harm, then your verdict will be for the plaintiff even if you find ... [that any other cond uct] were legal causes of the accident because I already told you there may be more than one legal cause. . . . So, in orde r to find for the defendants, you must find that the alleged defect was not the legal cause of the accident." Id . at 417-19.

I regard this charge as consistent with Pennsylvani a law. The charge recognized that if a combination of a de fect in the product and Parks' or another person's negligen ce caused the accident, the plaintiff would win. The m ajority makes much of the fact that the court used the phra se "the legal cause" rather than "a legal cause." Majority Op. at 17- 18. While I agree that "a" is the proper article to use in this situation, I do not agree that this error so taints the charge as a whole that it could have misled the jury. The judge told the jury to consider the conduct only as it re lates to

the initial causation of the accident to evaluate w hich

29events were substantial factors in bringing about t he accident. Furthermore, the interrogatory to which t he jury answered "No," thereby returning a verdict for the defendant, read as follows: "Was the defect in the excavator a substantial factor in bringing about Mr. Parks' d eath?" The jury of course, had the interrogatory when it

deliberated and in these circumstances I cannot bel ieve that the use of "the" rather than "a" in the charge mattered.

In my view, the majority's holding that a foreseeab ility charge was required is fundamentally wrong because the plaintiff and third-party conduct was not presented to the jury as a superseding cause of the accident. Rather , the

defense advanced that conduct as the sole cause of the accident. In a superseding cause situation, the def ect is still a "but for" cause of the accident, or a substantial factor, but the superseding cause of the accident may excus e the defendant from liability if not reasonably foreseea ble. Here, the court charged the jury to consider whether the alleged defect was a "substantial factor" in causing the ac cident and the jury found that it was not. It seems to me to be clear that when a court lays the precepts of Pennsy lvania law against the charge, it should conclude that the charge

did not include a reversible error.

The main difference between my view and the majorit y's view, besides the result we reach, is the majority' s holding that "the threshold question is whether the plainti ff's actions were foreseeable." Majority Op. at 9. I do not understand how it can make this statement, because it confuses substantial factor causation, i.e. , the responsibility of the defendant in the first instan ce, with superseding causation. A superseding cause, if not reasonably foreseeable, breaks the chain of causati on, but the jury must first find that there was a chain. Th e majority's holding eliminates this requirement and the majority says that "[c]ausation may be shown by pro cess of elimination. . . ." Majority Op. at 10. The majorit y does not have case law to support this conclusion. The cases it cites deal with accidents where superseding causes exist after

the defect first is found to be a substantial facto r, e.g. , Decorative Precast Stone Erectors, Inc. v. Buckrus- Erie Co.

, 493 F. Supp. 555, 557 (W.D. Pa. 1980), aff'd , 642 F.2d 441

30(3d Cir. 1981) (table), where the plaintiff alleged ly recklessly

exposed himself to a defect, Childers v. Power Line Equip. Rentals, Inc. , 681 A.2d 208-09 (Pa. 1996), where substantial change or misuse of a product is charge d, Eck

v. Powermatic Houdaille , 527 A.2d 1012, 1019 (Pa. 1987),

or where the existence of a defect rather than caus ation is at issue, see Schell v. AMF, Inc. , 567 F.2d 1259, 1262 (3d Cir. 1977).

We face none of those situations in this case. The issue at trial here was whether the defect in the product was a substantial factor in causing the accident. The jur y instructions correctly said that if it was the plai ntiff must win. The jury found for the defendant by answering an interrogatory expressly finding that the defect was not a substantial factor in bringing about the accident. The majority will not allow a verdict based on the jury 's answer to this interrogatory to stand because it holds tha t a foreseeable action by the plaintiff cannot be a "le gal cause" of an accident. Majority Op. at 17-18. "Instead, it is removed from the picture, and liability attaches to the remaining causal actor or actors." Majority Op. at 12. I believe that this approach is simply wrong for it e liminates the jury's role in determining whether a defect is a substantial factor in an accident. It turns all cas es involving causation into superseding cause cases in the sense that unless the plaintiff's or third party's conduct is not foreseeable, it cannot be the legal cause of th e accident.

As Bascelli , the 100 miles per hour motorcycle case, so clearly demonstrates, this is wrong. The majority o pinion overlooks the fact that the jury first must find a chain of causation before considering whether a superseding cause breaks the chain. It assumes that a chain exists.

Under the majority's view, a defendant could be fou nd

liable for a defect even if the defect did not cont ribute to the happening of the accident, because the majority rem oves from the case the possibility that foreseeable cond uct of the plaintiff or a third party was the cause of the acc ident. It is important to remember that just because an accident is a type which a defect might cause does not mean that the defect necessarily did cause the accident. It is up to the jury to make this determination, not the court. Thu s, I do

31not believe the Pennsylvania Supreme Court would co ndone

the result reached here. The majority's opinion wil l force the district court to try the case on the remand on incorrect principles of law and will require it to deliver an incorrect charge.

In responding to my dissent in which I emphasize th at the majority does not take into account the distinc tion between a plaintiff's negligence which is the sole cause of the injury and a plaintiff's conduct that was an unforseeable superseding intervening cause of the i njury, the majority sets forth the following:

The instant case is precisely of the second type: the jury explicitly answered yes to the question, `Was the

Gradall excavator defective at the time it was manufactured and sold?' App. at 432. The machine's defect was impaired visibility of precisely the are a in

which the accident occurred. In accordance with the dissent's above description, the manufacturer of th e defective product should be held liable unless the plaintiff's actions were unforseeable.

Majority Op. at 9-10 n.3.

I deduce from the foregoing analysis that the major ity, sitting as a court of appeals, must be determining as a matter of law that the nature of the defect meant i t had to be a substantial factor in bringing about the accid ent. I cannot understand how the majority can make this determination because it is deciding the proximate cause issue and deciding it contrary to the jury which ex pressly answered "no" to the following question: "Was the d efect in the excavator a substantial factor in bringing abou t Mr. Parks' death?" The fact that the machine had impair ed visibility no doubt led the jury to find that it wa s defective. Yet that finding simply did not determine that the defect was a substantial factor in bringing about the acci dent. Thus, just as I have indicated already, the majorit y turns all cases involving causation when a plaintiff's or third party's conduct is involved into superseding cause cases so that unless the plaintiff's or third party's conduc t is unforeseeable, it cannot be the legal cause of the accident.

32As far as I am concerned this appeal is being decid ed

incorrectly which in itself is unfortunate. But the consequences of the majority opinion go beyond this case. There are many diversity of citizenship products li ability cases under Pennsylvania law tried in this circuit. From the time of the publication of the opinion in this case the district courts will be confronted with following Pennsylvania law, as announced by the Pennsylvania courts and permit the jury to conclude that a plain tiff's or third party's conduct, even if foreseeable, can be the sole proximate cause of an injury, or following the majo rity's opinion which makes clear that the injury can be at tributed to plaintiff's or third party's conduct only if tha t conduct is not foreseeable. I presume that the district courts will follow the majority's opinion here and thus the out come of a case may be determined on whether it is tried in the state

or federal court. This is serious business.

Judge McKee's concurrence misinterprets the holding I suggest would be appropriate here and thus it does not persuade me that my views are wrong. I do not belie ve, as Judge McKee suggests I do, Concurrence at 20-21, th at a plaintiff's conduct can be used to relieve a defend ant of liability merely because it contributed to an accid ent caused by a defect. In fact, I believe the opposite to be true. Yet, a jury must determine whether the defect is ac tually a substantial factor in causing the accident and thus must consider what else, including a plaintiff's conduct , could

have caused the accident without contribution from the defect. Thus, I agree with Judge McKee when he stat es: " `[i]f the alleged defect was a substantial factor in bringing about the harm,' absent assumption of risk, misuse of product, or highly reckless conduct, it is irreleva nt whether plaintiff's conduct set the events in motion or mer ely failed to prevent an injury . . . ." Concurrence at 25. Unfortunately, however, the result being reached he re will not allow the jury to decide whether the defect is "a substantial factor in bringing about the harm."

Indeed, Judge McKee's explanation of Judge Cowen's opinion effectively admits this point because, quot ing Judge Cowen, he indicates that "[e]vidence of the deceden t's actions in the instant case is appropriate only if a jury

33determined that such actions were `not reasonably

foreseeable or were otherwise extraordinary.' " Con currence at 25. This statement simply cannot be correct beca use it removes from the jury the opportunity to consider w hether the defect was "a substantial factor in bringing ab out the harm." A plaintiff's unexceptionable conduct may ca use a plaintiff using a defective product to be injured w ithout the defect in the product contributing to the injury. F or example, a car might be delivered with defective br akes but if a plaintiff driving the car who is about to get into an accident, whether or not he is negligent, does not use the brakes, then the defect simply is not a substantial factor in bringing about the harm even if the brakes would no t have worked if the plaintiff had applied them. In such a case the

defendant should be able to establish that the defe ctive brakes had nothing to do with the accident and the defendant should win in a products liability case. See

Berkebile , 337 A.2d at 901 ("Whether decident actually attempted autorotation is relevant to the issue of causation. If the jury were to conclude, for example, that a n ondefective system would allow two seconds for autoro tation and that the decedent did not attempt autorotation for three seconds; even if a defect was shown, it would not have been the proximate cause of the crush.").

The fact in my brakes example that the plaintiff mi ght have been negligent is immaterial and thus if the p laintiff was negligent his negligence would not bar his clai m. Rather, he would lose because the defect was not a substantial factor in bringing about the accident. The district court properly tried the case applying the se principles which Pennsylvania law (and probably the law through the United States) establishes, and thus we should

affirm.

In the circumstances I am constrained to dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

34