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Schmid v. Milwaukee Elec. Tool Corp.

filed: January 3, 1994.

ERIC ESHER SCHMID
v.
MILWAUKEE ELECTRIC TOOL CORPORATION ERIC SCHMID, APPELLANT



On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 92-01370).

Before: Stapleton, Mansmann and Hutchinson, Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

In this products liability action, plaintiff appeals from a grant of judgment as a matter of law in favor of the defendant pursuant to Federal Rule of Civil Procedure 50(a). The primary issue raised is whether the district court erred by striking the testimony of plaintiff's expert witness in its entirety on the ground that the expert altered the allegedly defective product during the course of his examination. Because we conclude that the district court's decision constituted reversible error, we will reverse and remand for further proceedings.

I.

On August 31, 1990, a co-worker of plaintiff Eric Schmid was using a circular saw manufactured by defendant Milwaukee Electric Tool Corporation ("Electric Tool") to cut wooden forms for concrete steps. Schmid was holding the board as his co-worker cut. Allegedly, with no warning, the saw "kicked back" and severely cut Schmid's hand causing permanent injury. Schmid theorizes that the saw suffered from a design defect: the guard was prevented from properly snapping back over the blade by debris collected in the guard mechanism.

Following the accident, Schmid's counsel sent the saw in question to an expert, Dr. Jeffrey Bratspies, for examination. According to his videotaped deposition, Dr. Bratspies noted that the guard was closing sluggishly and that there was a grating noise. He disassembled the guard to find out why. This disassembly, according to Bratspies, revealed particles trapped in the guard mechanism, some of which fell out during the course of the examination. Some of the trapped particles had caused scoring of the metal on the mating areas of the blade guard. Dr. Bratspies took photos of the assembled saw, the disassembled saw, the scoring, and the debris and the disassembled saw was then forwarded to Electric Tool's expert. Upon reassembly by that expert, the saw apparently worked properly; the guard snapped back as it was designed to do.

During cross examination of Dr. Bratspies, the following colloquy occurred:

Q. Now, as I understand it, you -- you took the blade off and you -- you took the guard apart. Am I correct?

A. I removed the guard, yes.

Q. And there were some particles that fell out and that sort of thing?

A. Yes.

Q. Were you -- were you aware that if any other expert was to look at the saw that they would be unable to examine the saw as you examined it ...


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