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Petree, David and Petree v. Victor Fluid Power Inc.

argued: July 11, 1989.


Higginbotham, Becker and Nygaard, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT A. Leon Higginbotham, Jr., Circuit Judge

In this appeal, we review a district court's refusal to allow evidence of a warning decal to be used for impeachment, under the impeachment exception to Fed.R.Evid. 407, on grounds that such evidence was inadmissible under Fed.R.Evid. 403. Upon our review of the record and relevant case law, we conclude that the district court committed error and vacate the judgment of the district court in favor of the defendants.


The facts of this case are well summarized in our previous opinion, Petree v. Victor Fluid Power,Inc., 831 F.2d 1191 (3d Cir. 1987) ("Victor Fluid I"). To the extent that it is necessary for a complete understanding of the present appeal, we review those facts.

David Petree ("Petree") brought this Pennsylvania diversity action*fn1 to recover for injuries he sustained on April 20, 1983 while working at Empire Steel Castings, Inc. ("Empire Steel"), his place of employment, when he was struck in the side of the face by a steel spacer bar that was ejected from a hydraulic press being operated by a fellow employee. The press had been manufactured and sold to Petree's employer in 1959 by Rodgers Hydraulic, Inc., the predecessor corporation to the defendant Victor Fluid Power, Inc. ("Victor Fluid").

Petree filed an action for damages in district court, pleading both strict liability and negligence. In particular, Petree claimed that the offending machine had been defectively designed, and that there had been a failure to warn of dangers inherent in the use of the product. Victor Fluid claimed in defense that the machine was not unreasonably dangerous when it left the manufacturer's possession, and that the accident had been caused by substantial changes in the press and by improper care that could not have been foreseen by the manufacturer.

Although Petree had abandoned his theory of negligence at pretrial conference, immediately prior to trial he moved to amend the pretrial order to include a theory of negligent failure to warn, and to admit into evidence a decal warning of projectile hazard that Victor Fluid had begun placing on all new hydraulic presses in 1980.*fn2 The district court denied the motion to amend the pretrial order, holding that Petree's negligence theory, which was based on a manufacturer's continuing duty to warn of hazards discovered after the product is sold, had no support in Pennsylvania law. The district court also denied admission of the warning decal on grounds that it was irrelevant under § 402A of the Restatement (Second) of Torts,*fn3 and even if relevant, Rule 407 of the Federal Rules of Evidence would apply to exclude the decal.

The matter proceeded to a jury trial and, at the close of Petree's case, Victor Fluid moved for a directed verdict on Petree's strict products liability claims. The district court granted the motion with respect to the issue of failure to warn, and, accordingly, did not submit that issue to the jury. Subsequently, the jury returned a verdict in Victor Fluid's favor on the defective design issue. Judgment for Victor Fluid was entered in accordance with the jury's verdict, and Petree appealed.

On appeal, we determined that there was sufficient evidence to go to the jury on question of failure to warn, and thus vacated the district court's grant of a directed verdict to Victor Fluid and remanded for a new trial on this issue.*fn4 We also addressed Petree's contention that the 1980 warning decal was admissible because it showed that Victor Fluid was aware of the projectile hazard before the time of Petree's injury in 1983, and that Rule 407 did not apply since it only excluded evidence of remedial measures taken after an injury occurs.*fn5 Petree further contended that the decal was admissible to impeach the testimony of Victor Fluid's expert witness, William Eaton ("Eaton"), who allegedly denied the feasibility of precautionary measures.

We noted that the application of Rule 407 to strict products liability actions based on § 402A of the Restatement had been reaffirmed in Josephs v. Harris Corp., 677 F.2d 985, 991 (3d Cir. 1982).*fn6 In that case, evidence of a warning sticker placed on a printing press, subsequent to plaintiff's injury, was ruled inadmissible under Rule 407. However, Josephs had not addressed the question -- before us in Victor Fluid I -- of the relevance or admissibility, in a strict products liability action, of subsequent remedial measures taken after the date of sale but prior to the date of injury.

In affirming the district court's denial of Petree's motion to admit the warning decal into evidence, we held that the decal, while relevant, was inadmissible under Rule 407 "where the manufacturer's liability is predicated on a theory of failure to warn of danger from improper use of the product by the customer." 831 F.2d at 1198. We reasoned that

[the] danger from a particular use by the customer must be foreseeable at the time of sale [in order to invoke products liability]. Consequently[,] the policies supporting Rule 407 counsel exclusion of proof of subsequent remedial measures when offered in strict liability cases as an admission that the product was defective at the time of sale.

Id. Yet, we did not rule out Petree's claim that the warning decal was admissible to impeach Eaton's testimony. We noted that "evidence of remedial measures which is inadmissible for one purpose under Rule 407 would still be available if offered for the purpose of impeachment." Id. We declined to discuss the matter further, however, since the issue of impeachment was moot in light of our decision to remand the case for a new trial on the question of failure to warn.

Upon remand, as in the first trial, Victor Fluid called Eaton, a professional engineer, as an expert witness to testify. Eaton opined that the danger of metal spacers being ejected from the hydraulic press while in operation had been designed out of the equipment as it was sold in 1959. He testified that Empire Steel had added the risk of projectile hazard back into the press when it permanently set the bolster table of the press in its lowest position -- thereby creating the need for use of large metal spacers -- and operated the press with a bent ram dripping hydraulic fluid. Eaton ...

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