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June 1, 1995

ROBIN STRALEY and JEANNAE STRALEY, his wife, Plaintiffs,
UNITED STATES OF AMERICA, LEACH COMPANY, a Wisconsin Corporation, EL INDUSTRIES, INC., a Delaware Corp., formerly known as Elgin Leach Corporation and also formerly known as ELGIN CORP. and SCA SERVICES, INC., a Massachusetts Corp., WASTE DISPOSAL, INC., a New Jersey Corp., WHITE BROS. TRUCKING COMPANY, a New Jersey Corporation, CAMBRIA AUTOMOTIVE COMPANIES, INC., and/or CAMBRIA MACK TRUCKS, INC., a New Jersey Corporation, SANITATION EQUIPMENT CORP., a New Jersey Corporation, and MACK TRUCKS, INC., a Pennsylvania Corporation, Defendants.

The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, Senior District Judge.

 Plaintiffs submit ten motions in limine. Defendants submit various parallel motions in limine, as well as motions for summary judgment and partial summary judgment. The plaintiffs' first, second, third, fourth, fifth, seventh, and tenth motions in limine will be granted. The plaintiffs' sixth and ninth motions in limine will be granted in part and denied in part. The plaintiffs' eighth motion in limine will be denied.

 Furthermore, the motion for summary judgment by defendant White Brothers Trucking Company will be denied in its entirety. The motions for summary judgment by defendants SCA Services, Inc. and Waste Disposal, Inc. will be granted.


 On January 15, 1991, the plaintiff, Robin Straley, was working as a garbage collector on a truck owned by Circle Carting, Inc. ("Circle Carting"). Straley and his co-worker, Rodney Gumaer, admit to drinking four 7-ounce beers between 2:00 and 3:00pm on that day. The parties dispute whether that admission is an understatement and whether the men were intoxicated at the time of the accident.

 At approximately 3:12pm, Straley was standing on the right rear riding step of the truck while directing Gumaer, who was driving the truck in reverse, down a street between garbage pickups. At the same time, a mail truck was driving up the street, and Straley directed the driver of the mail truck, Thomas Brown, to stop so that the garbage truck could maneuver past. The parties dispute whether the mail truck came to a complete stop.

 The maneuver was unsuccessful, and as the garbage truck drove past the mail truck, Straley was either struck from behind by the driver's mirror or slipped while trying to avoid being struck, and fell to the ground whereupon his legs were crushed by the rear wheels of the garbage truck. They were both later amputated about four inches below the knees.

 At the accident scene, Gumaer failed a field sobriety test and was noted as smelling of alcohol from three feet, having red and watery eyes, and a "mellow" demeanor. At approximately 5:00pm, Gumaer was given a breathalyzer test, which indicated a blood alcohol content of between .08 and .09%. Although one defense expert concluded that the evidence suggested that Gumaer's alcohol level at the time of the accident was .08%, the other stated that he could draw no opinion as to the exact level. Gumaer ultimately pled guilty in Randolph Township Municipal court to careless driving, improper backing and driving without a license.

 Straley was admitted to the Dover General Hospital Emergency Room at 3:53pm. At approximately 4:30pm, blood was drawn from Straley which was found to have a serum alcohol level of .147 percent, which, according to defendants' expert opinion, converts to a true blood alcohol level of approximately .12 percent. Defendants' experts also admit that that level was likely to have been artificially elevated due to Straley's loss of blood.

 The plaintiffs instituted this action on March 13, 1992. The amended complaint sets forth five claims, the first sounding in negligence against defendant the United States of America as imputed through the driver of the mail truck. The second count sets forth a related loss of consortium claim by Straley's wife against the United States. The third count alleges that the truck was defective and asserts pendent state law products liability claims against the remaining defendants as being within the chain of distribution and therefore subject to strict liability. The fourth count asserts negligence claims against each of the remaining defendants and alleges that they negligently removed warnings from the truck and that the lack of such necessary warnings was the proximate cause of Straley's injuries. The fifth count asserts a related loss of consortium claim on behalf of Straley's wife against the remaining defendants.

 The following facts relate to the chain of distribution of the garbage truck. The chassis and cab of the garbage truck were manufactured in 1979 by defendant, Mack Trucks, Inc. ("Mack"). The truck's garbage compactor was also manufactured sometime in 1979 by Defendant Leach Company ("Leach").

 Defendant Sanitation Equipment Corporation ("Sanitation") assembled the garbage truck by combining the chassis manufactured by Mack and the compactor manufactured by Leach. The garbage truck was ordered from Sanitation by SCA Services, Inc. ("SCA") and drop-shipped in October, 1979, to its subsidiary, Waste Disposal, Inc. ("Waste Disposal"). SCA never took title to the truck. Waste Disposal took delivery of the vehicle in Elizabeth, New Jersey, and obtained title as the first owner of the assembled garbage truck on November 17, 1979.

 Waste Disposal owned the vehicle until January 14, 1984, when the entirety of its Elizabeth operations, including the garbage truck, was sold to its competitor, White Brothers Trucking Company ("White Brothers"). White Brothers owned the truck until December 23, 1986, when it was sold to Defendant Cambria Mack Trucks, Inc. ("Cambria"). On the same day, Cambria sold the truck to Circle Carting.

 It is undisputed that, at the time of the accident, the garbage truck lacked safety decals warning of the dangers posed by riding on the riding step while the truck was being operated in reverse. In 1980, Leach began placing such warning decals at the location of the riding step and providing additional decals for application in the assembled truck cab. Leach claims to have mailed "safety bulletins" to its customers in June of 1986 recommending that such warning decals be added to trucks that did not already display them. Although White Brothers was on a mailing list produced by Leach, it denies having received any safety bulletins. It is undisputed that Leach did not send safety bulletins directly to Circle Carting, the subsequent owner of the truck and Straley's employer.

 It is also undisputed that, at the time of the accident, the garbage truck lacked a working backup alarm. Leach claims that since July of 1979, it had installed audible backup alarms on all Leach compactors.


 I. Plaintiffs' Motions in Limine

 1. Admissibility of Straley's Alcohol Consumption

 The plaintiffs' first motion in limine seeks to bar admission of evidence regarding Straley's consumption of alcohol prior to the accident. Defendants Leach and EL Industries submit a parallel motion to permit the introduction of such evidence in which Sanitation, Mack, SCA and Waste Disposal have joined.

 Plaintiffs initially argue that under Rovegno v. Geppert Bros., Inc., 677 F.2d 327 (3d Cir. 1982), the Third Circuit has held that state law controls the question of whether evidence of alcohol intoxication is admissible. Defendants argue that the Federal Rules of Evidence govern admissibility.

 In Rovegno, the Third Circuit upheld a district court's reliance on Pennsylvania law in excluding such evidence. Relying on its prior decision in Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d. Cir. 1976), the Third Circuit held that the Erie doctrine compelled the application of state law to the question of admissibility of evidence regarding alcohol consumption. Id. at 89 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938)). Under Erie, a federal court sitting in diversity is constitutionally required to apply state substantive law, but looks to federal law as to questions of procedure. See Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 163-64 (3d Cir. 1976).

 Federal jurisdiction is invoked in this action, not through diversity of citizenship, but rather under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., as a personal injury claim involving an employee of the United States. Nevertheless, "the law of the state in which the alleged tort occurred . . . governs all substantive issues in a Federal Tort Claims case." Kruchten v. U.S., 914 F.2d 1106, 1107 (8th Cir. 1990). Therefore, as under Erie, the fundamental question in determining whether state or federal law applies to a particular issue in this action depends on whether the issue is ultimately substantive or procedural. Unfortunately, that question is not always easy to resolve, especially when it relates to the potential admissibility of evidence.

 The Rovegno court, reviewing the trial court's admissibility decision under an "abuse of discretion" standard, stated,

Although we are required by our decision in [Greiner], to apply [Pennsylvania law] in this appeal, Rule 403 of the Federal Rules of Evidence provides that "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." We observe that the Pennsylvania decision implicitly requires the same discretionary weighing required by Rule 403. Thus, in interpreting [Pennsylvania law], we may draw on our own decisions dealing with review of Rule 403 exercises.

 Rovegno, 677 F.2d at 329 (quoting Fed. R. Evid. 403).

 The Third Circuit thus upheld the district court's reliance on Pennsylvania law as set forth in Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (Pa. 1956), which held that, "while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive." Id. at 329 (quoting Fisher, 125 A.2d at 476).

 In his vigorous dissent in Rovegno, Judge Van Dusen questioned the need for the majority to refer to the Federal Rules of Evidence if state law exclusively controlled the question of admissibility. Id. at 331, 338. Furthermore, he pointed out:

All of our past decisions on this issue have either assumed or explicitly stated that state law controls the admissibility of evidence of intoxication in a diversity case. . . . From my reading of these cases, however, the possible applicability of federal law . . . was never suggested to or considered by the court.

 Id. at 338 (Van Dusen, J., dissenting) (citing Greiner, supra, among other cases). The only potentially contrary indication he noted was a footnote comment stating that "there is no Federal or state rule of evidence which would permit the testimony as to drinking . . . ." Id. (quoting Rosa v. City of Chester, 278 F.2d 876, 883 n.8 (3d Cir. 1960)).

 Judge Van Dusen went on to point out that at least two circuit courts had concluded that federal law controls the admissibility of evidence of intoxication. Id. (citing Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1153 (5th Cir. 1981); Levitt v. H.J. Jeffries, Inc., 517 F.2d 523 (7th Cir. 1975) (The First Circuit subsequently joined those circuits, specifically rejecting the analysis in Rovegno. See McInnis v. A.M.F., Inc., 765 F.2d 240, 245 & n.6 (1st Cir. 1985)).

 He further noted that the Third Circuit had recently ruled that "the Federal Rules of Evidence, and not state law, 'govern the admissibility of documentary evidence in Federal diversity cases.'" Id. (citing Pollard v. Metropolitan Life Ins. Co., 598 F.2d 1284, 1286 (3d Cir. 1979).

 He concluded, "I believe that these cases, as well as a close analysis of what has been called broadly the 'Erie doctrine,' casts substantial doubt on some assumptions concerning the admissibility of evidence in diversity cases which underly our previous decisions." Id. Continuing in a footnote, he stated, "Because it is not clear to me whether we have ever actually held--rather than simply assumed--that state law controls, it is equally unclear to me whether we are 'bound' by Greiner or any other cases on this issue." Id. & n.21.

 The Rovegno decision has also been the subject of academic criticism, which has questioned its basis and suggested that the potential applicability of federal law to the question of admissibility may have been overlooked by counsel. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence P 1101[02] (1994); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure §§ 5201, 5224 (Supp. 1994) ("The Third Circuit has apparently held that in a diversity case the trial court must apply state law in exercising power of discretion exclusion, a questionable result if Rule 403 is properly understood." Wright § 5224 & n.45 (Supp. 1994)).

 At least four trial courts have subsequently dealt with the Rovegno decision, with some apparent confusion about whether the Third Circuit was directly applying a Rule 403 analysis or merely noting the applicability of Rule 403 decisions given that Pennsylvania law incorporated the same standard.

 In Smith v. Deere & Company, Civ. A. No. 87-7998, 1989 WL 24904 (E.D. Pa. March 17, 1989), the court began by setting forth the Rule 403 standard and then stated, "In [Rovegno], the Third Circuit, in reviewing the district court's application of F.R.E. 403 where Pennsylvania law applied, held [that evidence corroborating actual impairment was required]." Id. at *1. The court continued in a footnote, "In [Rovegno], the Third Circuit observed that Pennsylvania law on the admissibility of evidence of intoxication "implicitly requires the same discretionary weighing required by Federal Rule of Evidence 403." Id. at *1 & n.1. The Smith court went on to hold that evidence of a blood alcohol content above the legal presumption of intoxication and an admission of drinking prior to the accident was sufficiently corroborative of impairment to make the evidence of intoxication admissible. Id.

 In Kempe v. Dometic Corp., 866 F. Supp. 817 (D. Del. 1994), the court also set forth the Rule 403 standard, but then went on to cite Rovegno as providing, "In a diversity action, the Third Circuit applies state law to determine admissibility of evidence concerning one's alcohol consumption." Id. at 819. The court then applied state law to determine the admissibility of evidence of intoxication. Id. at 819-21. Likewise, in Clement v. Conrail, 130 F.R.D. 530 (D.N.J. 1990) (Wolfson, M.J.), Magistrate Judge Wolfson cited Rovegno as holding that "in cases brought under diversity jurisdiction, the admissibility of prejudicial evidence is to be decided in accordance with the laws of the state where the district court sits." Id. at 532-33.

 In Beirne v. Security Heating-Clearwater Pools, 759 F. Supp. 1120 (M.D. Pa. 1991), the court stated,

Although the defendant questions the applicability of Pennsylvania common law, we think it clear under the most recent decision by the Third Circuit on this issue, [Rovegno], that Pennsylvania law governs. In [Rovegno], the Third Circuit cited the federal rules of evidence, but based its decision on Pennsylvania precedent.

 Id. at 1123.

 With all of this in mind, there are several possible ways of viewing the Third Circuit's holding in Rovegno. Perhaps the most straightforward interpretation would be to read Rovegno as requiring the application of state law to determine admissibility of potentially prejudicial evidence, at least with regard to alcohol consumption. Its reference to Rule 403 could therefore be viewed as arising only because Pennsylvania law incorporated that same standard, therefore making the court's Rule 403 decisions relevant, but not necessarily controlling. Although that reading is shared by Kempe, Clement, and Beirne, it is also the reading that has drawn the most intense criticism, both academic and jurisprudential.

 Another potential reading is that the district court's reliance on Pennsylvania's rule regarding admissibility was upheld under an abuse of discretion standard because the Pennsylvania rule was not inconsistent with Rule 403. That reading is arguably more consistent with Smith, although Smith seems to go somewhat further by characterizing the district court's analysis itself as a Rule 403 analysis.

 Given that the court had the benefit of Judge Van Dusen's dissent, however, it seems unlikely that the majority was basing its decision on a Rule 403 analysis under federal law. This is especially true given that the majority addressed Rule 403 only after noting that Pennsylvania law incorporated the same standard, concluding, "Thus, in interpreting [Pennsylvania law], we may draw on our own decisions dealing with review of Rule 403 exercises." Rovegno, 677 F.2d at 329. That language supports the conclusion that the majority felt a discussion of Rule 403 was relevant only because Pennsylvania law incorporated the same standard.

 Yet another means of analyzing Rovegno is presented in Weinstein, supra, based on Professor Wellborn's article The Federal rules of Evidence and the Application of State Law in the Federal Courts, 55 Tex. L. Rev. 371 (1977), in which the concept of relevancy is broken into two distinct elements. Wellborn states that

a ruling that an offer of evidence . . . is not relevant may mean either (1) that it does not tend--or by application of the principle of rule 403, does not tend sufficiently in light of other effects--to establish the proposition for which it is offered, or (2) that the proposition for which the evidence is apparently offered--or at least one of them--is immaterial, in other words, not provable in the case. A ruling that an offer is relevant means that the evidence satisfied both criteria. Only the first aspect of relevancy is a matter of evidence or procedure; the second aspect is of substantive law. . .

 Weinstein at P 1101[02] (quoting Wellborn at 396). The distinction is therefore between the evidence's probative/prejudicial value, which is procedural and arises under federal law, and materiality, which is a question of substantive, and therefore state, law. Id.

 Relevancy in defined under the Federal Rule of Evidence by Rule 401, which reads, "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Professor Wellborn suggests that

in the language of Rule 401, the determinations whether offered evidence has "any tendency to make the existence of" a fact "more probable or less probable than it would be without the evidence" is a matter of entirely federal law; state law governs, in diversity cases, the determination of which facts are "of consequence to the determination of the action," that is, material.

 Weinstein at P 1101[02] (quoting Wellborn at 396).

 Applying that analysis to Rovegno, Weinstein states,

in order to determine whether a federal court must apply the Pennsylvania rule on the admissibility of blood alcohol results, a federal judge would have to ask: does Pennsylvania exclude blood alcohol results in the absence of "other evidence" because drinking, standing alone, is not probative of a degree of intoxication which proves unfitness to drive, or does the Pennsylvania rule mean that drinking is not a material proposition that is provable to show negligence? As Professor Wellborn's article demonstrates, it is frequently difficult to ascertain whether a particular rule is "only evidentiary or is meant to prescribe rights and obligations of the parties not related to factfinding."


 Therefore, if Rovegno could be read as requiring the application of state law because of the materiality of an issue, as opposed to the potential prejudice of evidence offered to prove that issue, it could potentially be reconciled with other circuit decisions and overcome current criticisms.

 Turning back to the holding in Rovegno, the Third Circuit had determined that it was bound by its decision in Greiner to apply Pennsylvania law to the question of admissibility. But before the court in Greiner even discussed the Pennsylvania rule, it stated, "[Erie] compels us to follow the law of Pennsylvania." Greiner, 540 F.2d at 89. There was no apparent consideration, therefore, of potential distinctions between materiality and probativeness as the basis for state law application. Furthermore, the court's subsequent discussion of the state law rule illustrated that it has been adopted in Pennsylvania because "only such evidence supporting an inference of unfitness due to intoxication is sufficient to outweigh possible prejudice." Id. It is therefore clear from the precedent upon which the Rovegno court relied that the application of state law was directly on the issue of the probative/prejudicial value of the evidence, not its materiality.

 Although defendants argue that the current interpretations of Rovegno are incorrect, I am compelled to join the other trial courts in this circuit in concluding that, on the question of admissibility of alcohol consumption, it requires the application of state law rules on admissibility. Although that distinction may turn out to be more academic than practical, it nonetheless governs the format of my analysis.

 Under New Jersey law, as with Pennsylvania law, evidence of consumption of alcohol is deemed inadmissible as unfairly prejudicial unless coupled with evidence tending to show actual impairment. The leading case on point is Gustavson v. Gaynor, 206 N.J. Super. 540, 503 A.2d 340 (App. Div. 1985), in which the court held,

The mere fact that a driver had consumed some alcoholic beverages is by itself insufficient to warrant an inference that the driver was intoxicated and that the intoxication was of such a degree as to render him unfit to drive at the time of the accident. The admission of such testimony without supporting evidence is unduly prejudicial in view of its capacity to inflame the jury.

 Id. at 545.

 Applying that standard, the court held that a driver's veering two or three feet out of his lane was not so erratic as to suggest probable intoxication and therefore was not sufficient supporting evidence to permit testimony on the driver's prior consumption of alcoholic beverages. Id. at 545-46.

 The evidence was therefore excluded under New Jersey's former Evidence Rule 4 because "its probative value was substantially outweighed by the potential for undue prejudice created by its admission." Id. at 543. Although New Jersey's rules of evidence were amended in 1993 to mirror the federal rules, there is no functional change in the standard for exclusion of relevant but prejudicial evidence. New Jersey's current Rule of Evidence 403 states, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury . . . ." N.J.R. Evid. 403.

 In Clement, Magistrate Judge Wolfson applied Gustavson and the analogous cases it considered, including cases from Pennsylvania, to determine that evidence of even an extremely high blood alcohol content was not sufficiently corroborative of unfitness to drive to justify introduction of evidence of alcohol consumption. Clement, 130 F.R.D. at 534-35. It was noted, however, that the alcohol level considered in Clement was below the .10% level of legal intoxication in New Jersey and that recent case law in Pennsylvania had given greater weight to that state's adoption of the .10% legal intoxication standard. Id. at 535 & n.8. Gustavson held that although there was no rigid standard for factors satisfying the supplementary evidence requirement for unfitness to drive, factors that have been considered include excessive drinking, driving at excessive speed, reckless or erratic driving, and drunken behavior at the accident scene. Id. at 535 (citing Gustavson, 206 N.J. Super. at 545, citing in turn, Rovegno, 677 F.2d at 330-31).

 Whether operating under the Federal Rules of Evidence or New Jersey's version thereof, the first question that has to be asked is whether the evidence offered is relevant. Rule 401 defines relevant evidence as being probative of a fact which is of consequence to the determination of the action, in other words, evidence that helps to prove or disprove a fact, which in turn, helps to resolve an issue which is material to the case. See N.J. R. Evid. 401; Fed. R. Evid 401. As discussed above, Professor Wellborn believes that the materiality of an issue arises from state law, whereas the probativeness of evidence remains the province of federal law. As I have already concluded, the Third Circuit requires the application of state law to both elements, at least with regard to evidence of alcohol consumption.

 The next step in the evidentiary framework involves Rule 402, which is again functionally the same under the Federal and New Jersey Rules of Evidence. The rule states that except as otherwise provided by law or rule, relevant ...

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