Petition for Writ of Certiorari — Solties v. Massey-Ferguson, Inc.

Supreme Court, US.

T | . YT. 1)

FEB 14 (98!

86 - 144) JOBEPH F. oA wUL, JR.

cena

SUPREME COURT OF THE UNITED STATES

LEONARD SOLTIES AND CECILIA SOLTIES. h/w

Petitioners.

No.

o .

NIASSEY-FERGUSON, INC.

Respondent,

PETITICN FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

On Appeal From the Final Order Denving

Reargument Entered by the United States Court

of Appeals for the Third Circuit at No. 86-3092

Entered November 19, 1986

Richard M. Rosenbleeth

C. Gary Wynkoop

1200 Four Penn Center Plaza

Philadelphia, Pennsylvania 19103

(215) 569-5500

Of Counsel:

BLANK, ROME, COMISKY & MCCAULEY

1200 Four Penn Center Plaza

Philadelphia, PA 19103

PACKARD PRESS LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

QUESTIONS PRESENTED FOR REVIEW

1. Is a plaintiff in a civil action denied procedural due pro-

cess when his unopposed request for a brief continuance because

of family illness is denied and he is compelled to go to trial with

substituted counsel?

2. May a federal court sitting in diversity ignore controlling

state law as that law has been declared by the highest court of that

state?

3. Is a plaintiff in a civil action denied procedur.] due pro-

cess when the trial court arbitrarily and erroneously excludes

critical rebuttal testimony contrary to the Federal Rules of Civil

Procedure and established precedent?

PARTIES TO THE PROCEEDINGS BELOW

Plaintiffs below: Leonard and Cecilia Solties, husband and

wife.

Defendants below: Massey-Ferguson, Inc., and Interna-

tional Harvester Co.

International Harvester Co. was dismissed as a party de-

fendant before trial by agreement of the parties. It did not par-

ticipate in the trial or appellate proceedings below.

Massey-Ferguson, Ltd., is the parent company of Massey-

Ferguson, Inc. The shares of Massey-Ferguson, Inc., are held by

Massey-Ferguson (Delaware), Inc., which shares are owned by

Massey-Ferguson, Ltd., a Canadian corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ “ i

PARTIES TO THE PROCEEDINGS BELOW ......... — ii

UE be ho csc de ccsdwusecesssceses iii

EE EIIOUD oo vcs tnweccascceceuseccess iv

REPORTS OF OPINIONS IN THE COURT BELOW .. l

THE BASIS FOR THIS COURT'S JURISDICTION .... ]

CONSTITUTIONAL PROVISIONS INVOLVED IN THE

ee eae En ee can ow ius sé <n.cb os <ceeen 2

RMR UIPU GPE BURES SAREE 6 psec cece cnscesenenes 2

REASONS RELIED UPON FOR ALLOWANCE OF

cide seeks 6h ek bee se nth nees 60408 04-0 8

I THE TRIAL COURTS DENIAL OF

PLAINTIFFS UNOPPOSED REQUEST FORA

SHORT CONTINUANCE BASED UPON THE

SERIOUS ILLNESS OF PLAINTIFFS TRIAL

COUNSEL'S WIFE DEPRIVED PLAINTIFFS

_ 4 3 4 EEA ee 8

ll. THE HOLDINGS OF THE COURTS BELOW

ARE SO GREAT A DEPARTURE FROM

PENNSYLVANIA LAW AS TO AMOUNT TO A

REPUDIATION OF THE ERIE DOCTRINE... 11

Ill. THE TRIAL COURTS ERRONEOUS RE-

FUSAL TO PERMIT PLAINTIFFS TO CALL

TWO CRITICAL REBUTTAL WiTNESSES

DENIED PLAINTIFFS DUE PROCESS...... 15

ROME UN MOLES GPE GRGEEVOUES 00... ec cee e cece eeees 18

Appendix

TABLE OF CITATIONS

Cases Page

Allen v. Prince George's County, 737 F.2d 1299, (4th Cir.

MEE a ucadkcie cdatade eee else cebaaadaeh oes 16

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ....... 10, 17

Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d

I wooo enle-a wa wkd a nce ee Re ee ha eee 5

Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337

pM ee oe 14

Byrd v. Blue Ridge Royal Electric Corp., 356 U.S. 525

ERS a toga pipe ne ely a eC iy eae 12

Cornwell v. Cornwell, 118 F.2d 396 (D.C. Cir. 1941)... 9

David v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir.

DE hice CAL OA Cree Abe Crk Sade oe Leds oeA aes 10

Derewicki v. Pennsylvania Railroad Corp., 353 F.2d 436,

ee eS I ee a cL ere Cues os 6 « 15

Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19 (3d Cir.

Rae Bsc bbc CRM EN AAK RS CeO NOt eae EON 16

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)...... 1]

Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746

SEG ac cane dase Wa wa dekee au caean deters eee 14

Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973) 12

Ford v. Jeffries, 474 Pa. 588, 379 A.2d 11] (1977)....... 12

Frederick v. Yellow Cab Co. of Philadelphie , 200 F.2d 453

RE Pere peer Poorer Teer ree 15

Friend v. C.1.R., 102 F.2d 153 (7th Cir. 1939).......... 16

Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978)....... 10

Gaspar v. Kassm, 493 F.2d 964 (3d Cir. 1974).......... )

Goldberg v. Kelly, 397 U.S. 254 (1970) ................ 16

Grannis v. Ordean, 234 U.S. 385 (1914)................ 16

1V

TABLE OF CITATIONS—~ Continued)

Cases Page

Greenfield v. Villager Industries, Inc., 483 F.2d 824 (3d

Ray Se cos boss Gu be Odsal ace camees ere 17

Grigsby v. Mabry, 637 F.2d 525, (8th Cir. 1980)........ 10

Guaranty Trust Co. of New York v. York, 326 U.S. 99

CR sca hae hades be 066 ene RA ee 1]

Hammond v. International Harvester Co., 691 F.2d 646

re Ge PP, sus ak vcd hn dka eee ee 14

Holloway v. J]. B. Systems, Ltd., 609 F.2d 1069 (3d Cir.

sds thccee ks vaeenendded eae Lede ean 14

Lagnes v. Green, 282 U.S. 53], (1931)................. Y

Latham v. Crofters, Inc., 492 F.2d 913 (4th Cir. 1974)... 9

Martin v. Laver, 686 F.2d 24 (D.C. Cir. 1982) ......... 17

Martin v. Weaver, 666 F.2d 1013 (6th Cir. 1981), cert. de-

led GO Te ee Cee ics cae bk a sadankn ca seawas 16

Morgan v. Commercial Union Assurance Co., 606 F.2d

i os ook da swank oe 16

National Surety Corp. v. Heinbokel, 154 F.2d 266 (3d Cir.

“aa ae MoM Ree SiS 16

Pollock v. Baxter Manor Nursing Home, 716 F.2d 545 (8th

RN yw oa eS Wend ve eek oS eee ee 16

Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d

I i odes bed ode Ree aT aoe eae 5

Smith-Weik Machinery Corp. v. McCormack Machine and

Engineering Co., 423 F.2d 842 (5th Cir. 1970)...... 10

Sutherland Paper Co. v. Grant Paper Box Co., 183 F.2d

926 (3d Cir.) cert. denied, 340 U.S. 906 (1956)...... g

United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d

Cir. 1969), cert. denied, 397 U.S. 946 (1970)........ 10

TABLE OF CITATIONS—~ Continued)

Cases

Zurich v. Wher, 163 F.2d 791, 793 (3d Cir. 1947)

Statutes

28 U.S.C.A. §1254(1)

Rules

Supreme Court Rule 21. 1(k)(i

F.R.C.P. 32(a)

Miscellaneous

5 Am. Jr., Trials 527 (1966)

vi

Page

16

No.

IN THE

SUPREME COURT OF THE UNITED STATES

LEONARD SOLTIES AND CECILIA SOLTIES. h/w

Petitioners,

eo.

MASSEY-FERGUSON, INC..

Respondent,

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPORTS OF OPINIONS IN THE COURTS BELOW

The United States District Court for the Western District of

Pennsylvania did not issue an opinion. The opinion of the panel

of the Third Circuit Court of Appeals is unpublished. The opin-

ion of the Third Circuit Court of Appeals is attached hereto as

part of the appendix pursuant to Supreme Court Rule 21. 1(k)(i).

THE BASIS FOR THIS COURT'S JURISDICTION

The judgment of the Third Circuit Court of Appeals to be

reviewed was entered on October 23, 1986. A Petition for Re-

hearing was timely filed on November 6, 1986. The Petition for

Rehearing was denied by the Third Circuit Court of Appeals by

Order dated November 19, 1986. The judgment of October 23,

1986, and the Order of November 19, 1986, are attached hereto

in the appendix pursuant to Supreme Court Rule 21. 1(k)(i).

This Court may exercise jurisdiction over this case pursuant

to 28 U.S.C.A. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

IN THE CASE

The Fifth Amendment:

“No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment of

a Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be de-

prived or life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.”

The Fourteenth Amendment:

“Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

STATEMENT OF THE CASE

This action was commenced in the United States District

Court for the Eastern District of Pennsylvania on July 6, 1983,

and subsequently transferred to the United States District Court

for the Western District of Pennsylvania. It was commenced as

a diversity jurisdiction/product liability/negligence case and

sought damages for injuries suffered by Leonard and Cecilia

Solties arising out of an accident on November 2, 1982, when

Leonard Solties became entangled in a corn picker designed and

manufactured by Massey-Ferguson. As a result of that accident,

Leonard Solties lost his right leg below the knee and suffered

3

severe, disabling and disfiguring injuries to his dominant right

hand. The theory of liability under which the case was tried was

that the corn picker was defective because of a lack of guarding

over the parts in which Mr. Solties became entangled and the

absence of any means for him to turn off the machine once he was

caught in it. The principal defense theory was that Leonard

Solties had deliberately reached in to the moving parts of the

machine in order to remove an alleged obstruction.

The bifurcated case was tried before Senior Judge Joseph

Willson and a jury from January 13, 1986, until January 16, 1986.

The jury returned a verdict for Massey-Ferguson. There were no

special interrogatories shedding light on the bases of the verdict.

A timely appeal to the Circuit Court of Appeals for the Third

Circuit was filed on January 31, 1986. By opinion and order

dated October 23, 1986, the Third Circuit affirmed. A timely

petition for reargument was filed on November 6, 1986, which

was denied by order dated November 19, 1986. This Petition for

Certiorari was timely filed thereafter.

This Petition raises three issues. The first is the constitu-

tionality and propriety of the District Court's refusal to grant an

unopposed, short continuance based upon the unavailability of

plaintiffs’ trial counsel necessitated by family illness. The second

is the trial court's gross deviation in its charge from the dictates

ot the controlling law of the Commonwealth of Pennsylvania, as

declared by the Pennsylvania Supreme Court, which deviation

constituted a repudiation of the Erie doctrine and was so great a

departure from the accepted and usual course of judicial pro-

ceedings as to call for an exercise of this Court’s power of su-

pervision. The third concerns the trial court's erroneous refusal

to allow crucial witnesses to testify, thereby depriving plaintiffs

uf an opportunity to present their case and rising to the level of

a violation of procedural due process.

The corn picker was made by Massey-Ferguson in the early-

mid-1950's when Massey was doing business as Massey-Harris,

Inc., (R. 192a, 232a-233a).' It was an implement that picked and

1. Citations to the record refer to the reproduced record filed with the

Third Circuit.

4

husked corn by means of a series of mechanical processes.

(R.223a-24a).

Power to the corn picker was supplied by a tractor which

pulled and drove the corn picker by what is known as a “power

take off,” (“PTO”) at the tractor’s rear. (R.133a). The corn picker

had no source of power of its own. (R.223a). The PTO is a

driveshaft type of arrangement which transmits power to the

corn picker by rotation. (R.133a). The means of turning the PTO

on and off was a lever located behind the tractor’s seat. (R.151a).

There was no other means of turning the PTO on and off. A

farmer entangled in the corn picker could not reach this lever.

(R.113a-14a).

The corn picker was designed to harvest one row of corn at

a time. At its front was a single “V-shaped snout at the opening

of which was a series of gathering chains and snapping rolls.

(Drawings of the corn picker from the operators manual are in-

cluded in the Third Circuit appendix at 354a, 359a and 374a.

Copies are included in the appendix filed herewith.) The gath-

ering chains, one on each side of the opening, pulled the corn

stalks in to the snout and kept them moving toward the rear of

the snout. The snapping rolls, located beneath the gathering

chains, consisted of two circular rolls with raised spiral fluting

running their entire length. These rolls were designed to grab

the corn stalks and pull them downward at a speed of approxi-

mately seven feet per second. (R.133a). The rolls rotated toward

each other at high speed creating an “in-running nip point.”

(R.266a). The space between the rolls was adjustable but invari-

ably set at a distance smaller than the diameter of an ear of corn.

(R.138a, 137a). This high speed downward motion of the stalks

through this narrow in-running nip point “snapped” the ears of

corn off the corn stalks. (R.133a-143a). The ears were then fur-

ther processed in other parts of the machine until a husked ear

was dropped by an elevator in to a wagon trailing the tractor and

picker. (R.134a, 137a). There was no guard or shielding of any

sort over the area in which the gathering chains and snapping

rolls operated. An operator caught in these ro!'s and/or chains

would be unable to turn the corn picker off.

5

On November 2, 1982, Leonard Solties, according to his

testimony, fell while walking around the operating machine in an

effort to aurally locate the source of a suspicious noise. Two prior

efforts to locate the source of the noise while the machine was

turned off had been unsuccessful. (R.130a, 139a, 140a-42a, 166a,

169a, 175a). His right hand came in to contact with the inside

surface of the snout and slid down in to the totally unguarded

snapping rolls. (R.174a). The dorsal surface of his hand became

engaged in the snapping rolls and could not be extricated.

(R.175a-76a). The machine could not be turned off. In his frantic

struggles to escape the machine, Mr. Solties’s right leg also be-

came caught. (R. 143a).

This case was instituted under the law of strict of liability as

adopted and declared by the Pennsylvania Supreme Court in

cases such as Azzarello v. Black Brothers Co., 480 Pa. 547, 391

A.2d 1020 (1978) and Salvador v. Atlantic Steel Boiler Co., 457

Pa. 24, 319 A.2d 903 (1974). A claim for negligence was also

pleaded.

The defects alleged to support the product liability claim

were the total absence of guarding over the exposed chains and

rolls and the absence of any means of turning off the machine that

could be operated by a farmer trapped in the snout area. (R. 11 1a-

12a). Plaintiffs’ expert advocated at trial the use of “stripper

plates’, flat metal plates, above the snapping rolls to narrow the

width of the opening, (R.228a-30a), and a cable-activated shut-off

device reachable by a trapped operator. (R.32a-36a, 234a-37a,

242a). A claim for punitive damages, on which the trial court

refused to permit evidence (R.119a), was premised upon proof

that Massey marketed 4 defective corn picker despite its knowl-

edge of an extraordinary number of accidents involving its corn

pickers and pickers substantially similar to its own, and its par-

ticipation in industry association committees and meetings at

which the dangers of these machines were acknowledged and

discussed, but never cured. The evidence would have shown

such knowledge as early as the 1930's. Evidence would have

been presented on the availability of cut-off technology dating

back to the turn of the century. (R.32a-36a).

Massey's main defense at trial was its contention that

Leonard Solties had deliberately reached in to the machine to

remove a clog. (Tr. 28-9, 432, 434). It argued that its theory was

supported by a statement allegedly made by Leonard Solties to

his brother Anthony within a day or two of the accident while he

was in intensive care. (R.299a, 302a). Massey also premised its

theory upon arguments that the corn picker was badly worn de-

spite testimony by another farmer that the machine had served

him well during that same harvest season. Finally, Massey ar-

gued that the safety devices advocated by plaintiffs were unwork-

able even though no evidence of any tests, studies, or experience

with such devices was offered.

Three business days before trial plaintiffs moved on the

record, without opposition, for a short continuance based upon

the serious illness of plaintiffs’ trial counsel's wife. (R. 105a, 106a-

08a, 115a-17a). Judge Willson denied this request, characteriz-

ing the situation of a serious illness as “nothing”, (R.107a), and

insisting, incorrectly, that designated trial counsel had failed to

appear at pretrial conferences. (R.88a, 100a, 106a). This denial

forced a last minute substitution of trial counsel — a point for

some unknown reason highlighted by Judge Willson at the very

opening of the trial and frequently, and unnecessarily, empha-

sized by him throughout the trial in the presence of the jury.

(R.118a, 158a, 177a, 202a, 203a, 190a-9la, 303a).

Plaintiffs were precluded at trial from referencing their

claim for punitive damages. (R.119a-193a-94a). This ruling was

based upon an alleged failure to raise the claim in plaintiffs’ pre-

trial narrative or in pretriat conferences — notwithstanding a

clear reference to it in the complaint, the narrative and at an

August 27, 1985, pretrial conference. (E.g. R.26a). Judge

Willison also based his ruling on an alleged absence of relevant

discovery, although how that would justify precluding a claim

was never explained, and notwithstanding a substantial list of

relevant exhibits in the pretrial narrative. (R.28a-30a). (Compare

R.10a-lla and 25a with 220a-22a; Tr. of 8/27/85, pp. 30-31.).

Judge Willson refused to permit plaintiffs’ expert to diagram

the corn picker for the jury in order to assist the jury's under-

standing of the machine and the safety devices he advocated.

7

Judge Willson ruled that to be admissible, evidence must be

“heard”. (R.224a).

Judge Willson refused to permit plaintiffs’ expert to testify

regarding the history of corn pickers on the issue of knowledge

of their dangers and frequency of injuries caused by them.

(R.193-97a). He unilaterally refused, for no discernible reason,

to permit plaintiffs to present a case based upon negligence the-

ories which had been pleaded in the complaint. (R.101a-02a). He

refused to permit plaintiffs’ expert to testify that the age and

condition of the machine were irrelevant to the circumstances of

this accident even though Massey was arguing to the contrary.

(R.239a). The purported basis for this ruling was his sua sponte

substitution of a brief letter written by plaintiffs’ expert to

plaintiffs’ counsel for the extensive discovery materials supplied

by plaintiffs to the defendant and the court regarding the expert's

testimony, and his requirement that the expert's testimony be

confined to the scope of the letter even though it was never sub-

mitted or intended as a report or expert witness interrogatory

answers. (R.32a-87a, 205a-22a). The extensive material supplied

by plaintiffs in discovery, including interrogatory answers, pa-

pers authored by the expert, test results, etc., had been pro-

vided to Massey and the court and were apparently satisfactory

to Massey because it withdrew a request for the expert’s depo-

sition after receiving them. (Proceedings of 8/27/85, pp. 16-17).

Judge Willson refused to charge the jury on the settled

Pennsylvania concept of substantial factor in his instructions on

causation, as requested by both parties. Instead, using lay dic-

tionary definitions, he charged the jury that the alleged defects

had to be the cause of the accident. No basis was given for this

charge which represented a marked departure from Pennsylva-

nia law. (R.312a, 339a).

Judge Willson charged the jury on contributory negligence

notwithstanding that there is no such detense to a strict liability

claim under Pennsylvania law, (R.229-41a), and he had ruled for

unknown reasons that plaintiffs would not be permitted to

present a negligence case. (R.101a-02a).

Judge Willson refused at trial to permit plaintiffs to use as

rebuttal the deposition of Frances Solties, another of Leonard's

a

8

brothers, which would have contradicted the testimony of

Anthony regarding Leonard's alleged conversation in intensive

care. Judge Willson based his ruling solely on the erroneous con-

clusion that since Frances resided in the Western District of

Pennsylvania he could be subpoenaed and, therefore, his dep-

osition could not be used. Judge Willson adhered to this mis-

taken view even after it was pointed out to him that the witness

resided more than one hundred miles from the court house.

(R.306a-09a, 395a).

Judge Willson, finally, refused to permit Leonard’s treating

physician, Dr. John Lubahn, to testify on rebuttal that Leonard's

injuries were inconsistent with the manner in which Massey

claimed the accident happened. (R.462a-65a). The doctor would

have testified that because all of the damage to Leonard’s hand

was to the dorsal surface, and did not involve the palm or knuck-

les beyond the first joints, it was improbable that Leonard was

reaching into the machine since under such circumstances the

typical injury involves the entire hand being drawn in to the

machine with circumferential injuries, i.e., to all sides of the

hand over three hundred and sixty degrees. (R.465a). Judge Wil-

lson ruled that this was not proper rebuttal even though it went

exclusively to refuting Massey's version of how the accident did

happen.

REASONS RELIED UPON FOR ALLOWANCE

OF THE WRIT

I. THE TRIAL COURT'S DENIAL OF PLAINTIFFS’ UNOP-

POSED REQUEST FOR A SHORT CONTINUANCE

BASED UPON THE SERIOUS ILLNESS OF

PLAINTIFFS’ TRIAL COUNSEL’S WIFE DEPRIVED

PLAINTIFFS OF DUE PROCESS.

The week before trial plaintiffs moved for a continuance be- }

cause of the serious illness of the wife of plaintiffs’ trial counsel,

Richard M. Rosenbleeth. The request was unopposed. There is

nothing of record to suggest, and no suggestion has ever been

made, that the request was motivated by anything other than the

utmost good faith, without any desire to delay the trial for more

9

than a brief period. The trial court denied the request for no

apparent reason other than its completely mistaken belief that

Mr. Rosenbleeth had never appeared before the court and had

not signed documents filed with the court. (R.106a). For many

months prior to trial Mr. Rosenbleeth’s name had appeared on

every paper filed with the court. (R.37a, pretrial narrative). He

had appeared before the court to identify himself as trial counsel.

(R.100a).

While the grant or denial of a continuance is ordinarily en-

trusted to the sound discretion of the trial court, it has been held

that that discretion can be abused when the trial court’s zeal to

dispose of litigation prejudicially deprives litigants of substantive

rights. Sutherland Paper Co. v. Paper Box Co., 183 F.2d 926 (3d

Cir.), cert. denied, 340 U.S. 906 (1950); Latham v. Crofters,

Inc., 492 F.2d 913 (4th Cir. 1974). That discretion must always

be exercised in the interest of justice. Cornwell v. Cornwell, 118

F.2d 396 (D.C. Cir. 1941). This Court has held:

“The term ‘discretion’ denotes the absence of a hard and fast

rule, . . . When invoked as a guide to judicial action, it

means a sound discretion, that is to say, a discretion exer-

cised not arbitrarily or willfully, but with regard to what is

right and equitable under the circumstances of the law, as

directed by the reason and conscience of the judge to a just

result.”

Lagnes v. Green, 282 U.S. 531, 541 (1931). See, Gaspar v.

Kassm, 493 F.2d 964 (3d Cir. 1974) (Denial of a continuance

based upon illness of a party reversed; consideration given to

length of delay, absence of prior delay, absence of prior requests

for continuance, diligence in making the request, lack of evi-

dence request was not made in good faith, absence of prejudice

to the opposing party and absence of opposition to the request. ).

Here, the request was unopposed. There was no delay by

plaintiffs. There had been one prior continuance resulting from

the case not being reached on the trial list. Another continuance

was by agreement of all of the parties. A third continuance re-

sulted from Massey's error, unquestionably made in good faith,

in failing to identify certain witnesses. There was no question

10

here that the request was not being made in good faith and there

was no delay in bringing the request before the trial court. Nor

was there any indication by the lower courts that they viewed the

request as being to the slightest degree indicative of bad plan-

ning or procrastination. Simply put, there was no logical reason

to deny the request. Under these circumstances, continuances

are rarely, if ever, denied. See, e.g., Smith-Weik Machinery

Corp. v. McCormack Machine and Engineering Co., 423 F.2d

842 (5th Cir. 1970); David v. Operation Amigo, Inc., 378 F.2d

101, 103 (10th Cir. 1967).

As a result of the trial court’s refusal of the continuance, a

last minute substitution for plaintiffs chosen counsel was neces-

sitated. (R.118a). The magnitude of this case required experi-

enced counsel and no other attorney familiar with the case could

lay claim to such experience. (R.107a). The Solties had sought

out and retained experienced trial counsel and were entitled to

that benefit at trial. See United States ex rel. Carey v. Rundle,

409 F.2d 1210 (3d Cir. 1969), cert. denied, 397 U.S. 946 (1970)

(habeas cprpus proceedings). (Due process requires an oppor-

tunity to retain counsel of choice and bars arbitrary action pro-

hibiting effective use of that counsel.).

Minimal due process requires an opportunity for litigants to

have their case heard at a reasonable time and in a meaningful

manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Under

appropriate circumstances a denial of a continuance may rise to

the level of a violation of due process. Grigsby v. Mabry, 637

F.2d 525, 527 (8th Cir. 1980) (habeus corpus proceedings).

Where without reason a party is deprived of counsel, even in a

civil case, due process must be of concern. The meaningfulness

of the right to be heard is lost, if that right is conferred at the

same time the litigant is deprived of counsel for reasons beyond

counsel's or the litigant’s control. If, as has been said, Gandy v.

Alabama, 569 F.2d 1318 (5th Cir. 1978), the test to be applied

in such cases is a weighing of the competing interests of the par-

ties and the court, in this case that balance was overwhelmingly

tipped in plaintiffs’ favor. Their request was unopposed and was

for but a brief period. The only “interest” advanced by the trial

1]

court's rush to trial in the face of these circumstances was, ad-

mittedly, its own by way of a case disposition. (R. 115a-16a). This

is not sufficient basis for depriving plaintiffs of their chosen coun-

sel, and by so doing deprive them of due process.

Il.

THE HOLDINGS OF THE COURTS BELOW ARE SO

GREAT A DEPARTURE FROM PENNSYLVANIA LAW

AS TO AMOUNT TO A REPUDIATION OF THE ERIE

DOCTRINE:

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), estab-

lished the well-settled principles governing the law that will con-

trol federal cases brought under diversity jurisdiction:

“Except in matters governed by the Federal Constitution or

by acts of Congress, the law to be applied in any case is the

law of the state. And whether the law of the state shall be

declared by its Legislature in a statute or by its highest court

in a decision is not a matter of federal concern. There is no

federal general common law. Congress has no power to de-

clare substantive rules of common law applicable in a state

whether they be local in their nature or ‘general,’ be they

commercial law or a part of the law of torts. And no clause

in the Constitution purports to confer such a power upon

the federal courts.” 304 U.S. at 78.

In Guaranty Trust Co. of New York v. York, 326 U.S. 99

(1945), Justice Frankfurter explained Erie as follows:

“In essence, the intent of that decision was to insure that, in

all cases where a federal court is exercising jurisdiction

solely because of the diversity of citizenship of the parties,

the outcome of the litigation in the federal court should be

substantially the same, so far as legal rules determine the

outcome of a litigation, as it would be if tried in a State

court. The nub of the policy that underlies /Erie/ is that for

the same transaction the accident of a suit by a non-resident

litigant in a federal court instead of in State court a block

away, should not lead to a substantially different result.” 326

U.S. at 109.

12

See also, Byrd v. Blue Ridge Royal Electric Corp., 356 U.S. 525

(1958).

The application of the Erie doctrine arises in this case be-

cause of two portions of the trial court's charge to the jury. First,

the trial court refused a charge requested by both parties that the

jury be instructed that plaintiffs carried their burden of proof on

causation if they convinced the jury that the defects alleged were

a “substantial factor” in causing the injuries. Second, the trial

court told the jury that Leonard Solties had departed in his con-

duct from that which the “ordinary user” of the corn picker

would have done, that he knew there was a danger but pro-

ceeded nevertheless to confront it, and that he was injured while

“playing” with the corn picker. Nowhere in the court’s charged

was there an instruction that under Pennsylvania law contribu-

tory negligence was not a defense. Pennsylvania’s comparative

negligence statute was not alluded to. The requirements for a

defense of assumption of the risk in a product liability case were

never mentioned.

The law of Pennsylvania, which the courts below were

bound to follow, is that a plaintiff has proven causation if the

alleged defect is found by the jury to have been a “substantial

factor” in causing the injuries complained of. Ford v. Jeffries,

474 Pa. 588, 379 A.2d 111 (1977); Flickinger Estate v. Ritsky, 452

Pa. 69, 305 A.2d 40 (1973). So uniformly accepted is this concept

by the courts of Pennsylvania that a charge on “substantial factor”

has been included in the Pennsylvania Suggested Standard Civil

Jury Instructions.”

2. “In order for the plaintiff to recover in this case, the defendant's . . .

conduct must have been a substantial factor in bringing about the accident.

That is what the law recognizes as legal cause. A substantial factor is an actual,

real factor, although the result may be unusual or unexpected, but it is not an

imaginary or fanciful factor or a factor having no connection or only an insig-

nificant connection with the accident.” 3.25.

“Where the negligent conduct of a defendant combines with other cir-

cumstances and other forces to cause the harm suffered by the plaintiff, the

defendant is responsible for the harm if his negligent conduct was a substantial

contributive factor in bringing about harm, even if the harm would have oc-

curred without it.” 3.27

13

The trial court nevertheless refused this charge without ex-

planation. In its stead, it defined cause according to lay dictio-

naries and repeatedly emphasized that for plaintiffs to prevail

they had to prove that the defect was the cause of the injuries.

(R.312a, 339a). This departure from Pennsylvania law, as to

which the parties were in agreement, amounted to a repudiation

of the Erie doctrine. The Third Circuit affirmed by searching the

record for an isolated, supposedly correct, instruction and found

no error. Overlooked by the majority were numerous contradic-

tory statements in the charge. See Mansmann, J., dissenting.

Elsewhere in the charge, the trial court instructed the jury

as follows:

“I dont decide the facts, you do, but I want to point this out

to you. Is Mr. Solties [sic] testimony and his deposition and

what he said here, are you satisfied that he told you what he

remembered, his memory of what happened, the man was

hurt, blood all over him. He told his wife. She says he didn’t

know, various stories have been told here now. Does she

know? Do we know today? What caused — whether that any

defect, if [sic] was one or two of those defects, did they play

any part in it or whether he walked around and fell down

inspite of everything, and did he get hurt on account of fall-

ing into the machine, and he left a free running machine.

“This man is a mechanic, he’s run garages, he’s made his

living at it for years and he walked away twice. He didn’t —

he turned it off, he knew it was a danger to walk around

there and play with that machine while it was running. The

third time he thought, well, I can’t find it, maybe I'll turn

it on, but he got into trouble.

“Now, was that trouble he got into caused by one of the two

or three things they claim here? The guard, the cable that

would shut it off. There was shut off devices, you know, not

only, on the switch, on the wires that the witnesses talked

about, but there was a lever there that shut off the P.T.O.

. . turn the lever and it was disconnected — that’s what

ordinarv users of it would do. . . .” (R.340a-41a).

l4

These factually inaccurate, (No witness testified that there

was a cut-off switch on any wires and Leonard Solties most cer-

tainly was not “playing” with the corn picker.), prejudicial com-

ments injected contributory negligence into the case in a way

grossly prejudicial to the plaintiffs and totally contrary to Penn-

sylvania law. The Third Circuit found no error in this charge by

reasoning that a comment that the plaintiff was negligent is

harmless if the jury is not also told that such negligence is a

defense. The dissent, however, correctly pointed out that the

harm arises from the failure to instruct the jury that the negli-

gence is not a defense. The majority, ignoring the plain error

rule, also reasoned, in the alternative, that the objection was not

preserved, without addressing the dissenting judge's conclusion

that the objection made was, under the circumstances, sufficient

to alert the trial judge to the claim of error.

Under Pennsylvania law contributory negligence has never

been a defense to a product liability action and it has been held

repeatedly and without deviation, until now, that the plaintiffs’

alleged negligence is utterly and totally irrelevant. E .g., Ham-

mond v. International Harvester Co., 691 F.2d 646 (3d Cir.

1982); Holloway v. J]. B. Systems, Ltd., 609 F.2d 1069 (3d Cir.

1979); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337

A.2d 893 (1975). Furthermore, while assumption of a risk is a

defense under Pennsylvania law to a product liability action, its

elements were never defined for the jury, i.e., that the defen-

dant must prove a subjective knowledge and appreciation of the

nature, character and extent of the danger and a voluntary de-

cision to confront it. Ferraro v. Ford Motor Co., 423 Pa. 324,

223, A.2d 746 (1966).

The upshot of these errors was that plaintiffs were forced to

satisfy a novel burden of proof, in flat contradiction of the un-

disputed law of Pennsylvania, and the jury was told that Leonard

Solties had been careless without also being told that the care-

lessness was absolutely irrelevant. In each instance the charge to

the jury was directly and completely contrary to Pennsylvania

law to such a degree that Pennsylvania law was effectively re-

pudiated and, with it, the Erie Doctrine.

15

Ill. THE TRIAL COURTS ERRONEOUS REFUSAL TO

PERMIT PLAINTIFFS TO CALL TWO CRITICAL RE-

BUTTAL WITNESSES DENIED PLAINTIFFS DUE

PROCESS.

Plaintiffs sought to call two rebuttal witnesses. The first was

Francis Solties, whose testimony, by deposition, would have

been that at the time Leonard was supposedly making an adverse

statement to Anthony Solties about how the accident happened,

Leonard was, in fact, permitted absolutely no visitors. The sec-

ond witness was Dr. John Lubahn, a surgeon specializing in hand

injuries, who had treated Leonard since the day of the accident.

His testimony would have been that the nature of Leonard's in-

juries was inconsistent with him having reached into the ma-

chine.

As to Frances, the trial court refused to permit him to testify

on the erroneous ground that since he was within the court's

subpoena range his deposition could not be used. The trial court

adhered to this incorrect position even after it was pointed out

that Frances resided more than one hundred miles from the

courthouse. It can not be disputed that this holding ran flatly

contrary to F.R.C.P. 32(a) which permits the use of any witness's

deposition if the witness resides more than one hundred miles

from the courthouse. See Derewicki v. Pennsylvania Railroad

Co., 352 F.2d 436, 441 (3d Cir. 1965); Frederick v. Yellow Cab

Co. of Philadelphia, 200 F.2d 483 (3d Cir. 1952). The Third Cir-

cuit affirmed on the ground that since Frances’s testimony would

only have contradicted Anthony as to the time and place of the

alleged statement, its exclusion from the record was harmless,

thereby apparently adopting the view that testimony proving

that a conversation could not possibly have happened at the time

and in the manner testified to by another witness is irrelevant,

regardless of the importance of the alleged statement.

As to Dr. Lubahn, the trial court ruled only that the testi-

mony was not proper rebuttal. It did so despite the obvious and

palpable fact that Dr. Lubahn’s testimony was limited in its pur-

pose to establishing that the accident did not happen in the man-

ner contended by Massey. It was not offered to prove how the

16

accident happened, only to prove how it did not happen. The

Third Circuit affirmed on the basis that since, according to its

reading of the record, the jury was not told that contributory

negligence was a defense this evidence was irrelevant. The fact

that the jury was told Leonard Solties had been careless, while

not being told that such carelessness was not a defense, was over-

looked by the Court.

Rebuttal has been defined as “a term of art, relating to ev-

idence introduced by a plaintiff to meet new facts brought out in

his opponent's case in chief.” Morgan v. Commercial Union As-

surance Co., 606 F.2d 554, 555 (5th Cir. 1979). It is “evidence

which dispels, explains, disapproves or contradicts evidence

given by the adverse party.” 5 AM. Jur., Trials 527 (1966). The

general rule is to exclude evidence in rebuttal not made neces-

sary and relevant by the opponent's case in chief and to permit

only such evidence that goes to counter new facts presented in

the defense case in chief. Allen v. Prince George's County, 737

F.2d 1299, 1305 (4th Cir. 1984); Zurich v. Wher, 163 F.2d 791,

793 (3d Cir. 1947). Where there can be no surprise or prejudice

to the opposing party, and the Third Circuit did not point to any,

these rules may be departed from. Zurich v. Wher, supra;

Emerick v. U.S. Suzuki Motor Corp., 750 F.2d (3d Cir. 1984)

(The true purpose of the evidence is controlling.) Merely be-

cause evidence could have been admitted in the plaintiff's case

in chief does not automatically preclude its use as rebuttal. Mar-

tin v. Weaver, 666 F.2d 1013 (6th Cir. 1981), cert. denied, 446,

U.S. 962 (1982); National Surety Corp. v. Heinbokel, 154 F.2d

266 (3d Cir. 1946). A plaintiff has no duty to rebut a defense yet

to be heard. Friend v. C.1.R., 102 F.2d 153 (7th Cir. 1939).

In Goldberg v. Kelly, 397 U.S. 254 (1970), it was held by

this Court that a fundamental requisite of procedural due process

is the opportunity to be heard. Accord, Grannis v. Ordean, 234

U.S. 385 (1914). In a trial context this opportunity to be heard

must, by inescapable logic, include the opportunity to offer ev-

idence and, if required under the circumstances in order to pre-

serve the right to be heard, an abridgement of that opportunity

may be violative of due process. See Pollock v. Baxter Manor

Nursing Home, 716 F.2d 545 (8th Cir. 1983).

17

Equally fundamental to due process is the right and oppor-

tunity to be heard at a reasonable time and in a meaningful man-

ner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). A hearing,

without a meaningful opportunity to be heard, may be as fatal to

due process as a total denial of a hearing, Greenfield v. Villager

Industries, Inc., 483 F.2d 824 (3d Cir. 1973), and without an

opportunity to be heard, all other rights become illusory. Martin

v. Laver, 686 F.2d 24 (D.C. Cir. 1982).

The trial court's erroneous exclusion of this rebuttal evi-

dence effectively precluded plaintiffs from presenting their case

by tying their hands at the moment they should have been af-

forded an opportunity to challenge Massey's defenses. Without

Frances Solties's testimony there was no way to rebut Anthony's

testimony. Without Dr. Lubahn’s testimony, Massey's conten-

tion of how the accident happened was permitted to stand

unchallenged by irrefutable physical evidence. In both instances

the evidence was pure rebuttal. And in both instances, its ex-

clusion rose to the level of a due process violation by erroneously

depriving plaintiffs of an opportunity to present evidence crucial

to their case.

Respectfully submitted,

BLANK, ROME, COMISKY & McCAULEY

By:

Richard M. Rosenbleeth

C. Gary Wynkoop

1200 Four Penn Center Plaza

Philadelphia, Pa. 19103

(215) 569-5500

18

CERTIFICATE OF SERVICE

I, hereby certify that three true and correct copies of the

foregoing were served by first-class mail upon the following

counsel of record:

CHESTER S. FOSSEE, ESQUIRE

Reale, Fossee & Ferry, P.C.

900 Manor Building

564 Forbes Avenue

Pittsburgh, Pa. 15219

Richard M. Rosenbleeth

DATED: February 13, 1987 and March 5, 1987

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

October 23, 1986

TO: C. Gary Wynkoop, Esquire

Herbert J. Johnson, Jr., Esquire

C.S. Fossee, Esquire*

NOTICE OF JUDGMENT

This Court's opinion was filed and Judgment was entered

today in case No. 86-3092 and copies are enclosed herewith.

PETITION FOR REHEARING (FRAP 40)

Your attention is specifically directed to Chapter VIII B of

the Court's Internal Operating Procedures.

B. Rehearing In Banc.

Rehearing in banc is not favored and ordinarily will not be

ordered except:

(1) where consideration by the full court is necessary to

secure or maintain uniformity of its decisions, or

(2) where the proceeding involves a question of excep-

tional importance.

This Court does not ordinarily grant rehearing in banc

where the panel's statement of the law is correct and the

controveried issue is solely the application of the law to the

circumstances of the case.

Nor, except in rare cases, has the court granted rehearing in

banc where the case was decided by a judgment order, a mem-

orandum opinion, or unpublished per curiam opinion.

When a petition for rehearing has been filed by a party as

provided by FRAP 35(b) or 40(a), unless the petition for panel

rehearing under 40(a) states explicitly it does not request in banc

hearing under 35(b), it is presumed that such petition requests

both panel rehearing and rehearing in banc.

A-2

FOR THE THIRD CIRCUIT

No. 86-3092

Ds.

MASSEY-FERGUSON, INC.

and

INTERNATIONAL HARVESTER, CO.

(D.C. Civil No. 84-229 E)

Argued

September 29, 1986

UNITED STATES COURT OF APPEALS

LEONARD SOLTIES and CECILIA SOLTIES, his wife,

Appellants

Appeal from the United States District Court

for the Western District of Pennsylvania — Erie

Before: ALDISERT, Chief Judge and WEIS and MANSMANN,

Circuit Judges.

October 23, 1986

Richard M. Rosenbleeth, Esq.

C. Gary Wynkoop, Esq. (ARGUED)

Blank, Rome, Comisky & McCauley

1200 Four Penn Center Plaza

Philadelphia, Pa. 19103

Of Counsel:

Herbert J. Johnson, Jr. Esq.

Evans, Johnson, Scarpitti,

McCollough & Witmann

416 Marine Bank Building

Erie, Pa. 16501

Counsel for Appellants

C. S. Fosee, Esq. (ARGUED)

Lisa Ondich, Esq.

Reale, Fossee & Ferry, P.C.

900 Manor Complex

564 Forbes Avenue

Pittsburgh, Pa. 15219

Counsel for Appellee

- ee nein tr, ae

is I aN e Ny w e e

A-3

OPINION OF THE COURT

(Filed , 1986)

ALDISERT, Chief Judge.

This is an appeal from a products liability action, tried on the

issue of liability only, in which the jury found for the defendant

manufacturer of a corn picker. The appeal presents questions

whether a new trial should be ordered because of error in jury

instructions, and rulings of the trial judge refusing the admission

of demonstrative evidence, denying rebuttal testimony, and de-

nying a continuance of trial. We find no error and will affirm.

I.

Leonard Solties received serious injuries when he at-

tempted to release a jam in an operating corn picker manufac-

tured by the defendant Massey-Ferguson, Inc. In a diversity

case under Pennsylvania law, Solties and his wife, Cecilia,

brought a products liability action against the manufacturer, con-

tending that there were two defects in the equipment that

caused the injuries: that there should have been “stripper plates”

over the cob-snapping rolls of the corn picker to act as a guard;

and that there should have been a cable-activated emergency

shutoff that could be activated by a person who got caught in the

rollers. Appellants have summarized their contentions:

“Plaintiffs theories of liability were that the corn picker was de-

fectively designed because of Massey's complete failure to guard

in any way the in-running nip point created by the snapping rolls

and its total failure to provide any means for an operator trapped

in those rolls to turn the machine off.” Appellants’ brief at 22.

Solties is a farmer. After his corn picker became inoperable,

he purchased the Massey corn picker (manufactured 30 years

prior thereto) from a neighboring farmer. While Solties was op-

erating the corn picker, it jammed. Yet, while the equipment

was still operating, Solties attempted to clear the jam with his

hand. His hand came into contact with the picker’s snapping rolls

and was pulled into the rear of the picker’s head. As a result of

the downward pull of a corn stalk through the rolls, or an effort

A-4

to get his balance or brace himself, his right leg entered the front

portion of the picker’s head, so that the lower leg was caught by

the picker’s gathering chains. He sustained serious injuries. The

case was tried before Judge Willson and a jury on the issue of

liability only. The jury found for Massey-Ferguson.

Appellants’ brief presents five issues for our consideration:

whether the trial court erred when it refused to instruct the jury

that the defendant could be found liable if its defective product

was a substantial factor in causing Leonard Solties’ injuries, and

instead instructed the jury that the defect had to be the cause of

the injuries; whether the trial court erred by instructing the jury

that Solties was guilty of contributory negligence; whether the

trial court abused its discretion when it refused to permit

plaintiffs expert witness to utilize a hand drawing to illustrate his

testimony; whether the trial court abused its discretion when it

refused to permit plaintiffs to present a rebuttal; and whether the

trial court abused its discretion when it refused to grant an un-

opposed request for a brief continuance that was based on an

alleged personal condition of one of plaintiffs’ trial counsel.

Il.

Appellants contend that the jury instruction was improper.

Although we note at the outset that appellants’ objection to the

instruction was inartful, we nevertheless will give them the ben-

efit of the doubt and notice their contention. Appellants rely on

section 431 of the Restatement (Second) of Torts, which pro-

vides:

The actor's negligent conduct is a legal cause of harm to

another if

(a) his conduct is a substantial factor in bringing about

the harm, and

(b) there is no rule of law relieving the actor from lia-

bility because of the manner in which his negligence has

resulted in the harm.

Restatement (Second) of Torts §431(a)-(b).

|

A-5

Under Pennsylvania law, strict liability under section 402(a)

requires the plaintiff to prove that the product was “in a defective

condition” and that the defect caused the injury. Berkebile ©.

Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Ap-

pellants contend that it was error for the district court not to have

charged the jury on the “substantial factor” component of cau-

sation. The court’s failure to do so, however, cannot be said to

have substantially prejudiced appellants’ case.

Preliminarily, we observe that the substantial factor com-

ponent of causation is intended to reduce the attenuation be-

tween cause and effect. See Restatement (Second) of Torts §431

comment a; see also id. 8433 & comments thereto. Therefore,

the recitation of the component in a jury charge would narrow

the field of possible legal causes, not broaden it. Accordingly,

appellants’ argument, that the inclusion of that component

would have allowed the jury to consider more possible causes of

Solties’ accident, is misplaced.

From our study of the court's entire charge, it appears that

the jury was properly instructed on the law of causation. In

speaking to the generic definition of “cause,” the court stated:

The cause of it, the cause of my hurting my fist is if I

bang it against that side of this desk maybe. See, a cause, a

cause. Now, if there’s a defect there, that doesn't cause it,

then that’s the problem in your case is of course, what

caused this thing, what caused this thing?

App. at 339 (emphasis supplied).

When explaining causation as it related to the issues in the

case at bar, the court instructed:

What caused — Whether that any defect, if [it] was one

or two of those defects, did they play any part in [the ac-

cident] or whether he walked around and fell down in spite

of everything, and did he get hurt on account of falling into

the machine, and he left a free machine running.

App. at 340-41 (emphasis supplied).

A-6

It can be seen from the court's instruction that, contrary to

appellants’ contentions, the court did not require too close a re-

lationship between cause and effect, not did it exclude the pos-

sibility of multiple causes. Indeed, one could forge a strong

argument that this instruction required less a connection be-

tween defect and accident than does the Restatement.

Finally, we note that, far from prejudicing appellants, the

trial court at one point gave appellants what was tantamount to

a directed verdict should a defect be found, by instructing the

jury:

If you find that lack of a cut off switch or guards over the

snapping rolls made this corn picker defective, that it’s un-

safe for its use, Massey-Ferguson caused the harm.

App. at 343. This instruction omits the requirement of causation

altogether. Appellants cannot at this point claim that the court

instructed the jury on too stringent a formulation of causation.

Il.

Appellants next argue that the court erred in charging the

jury on contributory negligence. Appellants’ brief at 24-26; see

text at App. 340-41, reprinted in appellants’ brief at 24. They

contend that, under Pennsylvania law, contributory negligence

is not a defense to a products liability action. Appellants’ brief at

25. Our examination of the record, however, indicates that plain-

tiff did not object to the charge as required under Rule 51. Fail-

ure to object to an instruction precludes one from assigning any

alleged error in that instruction as a basis for a new trial on ap-

peal. Moreover, even if the point was properly preserved, we are

not persuaded that the court’s language amounted to a charge on

contributory negligence.

IV.

The trial judge refused to permit an expert to make a hand-

drawing to augment his testimony and other exhibits. Photo-

graphs of the corn picker were freely used by counsel for both

parties and also were made available to the jury. Under these

ae A Ny ne eta re

A-7

circumstances, the failure to permit a hand drawing of the snap-

ping rolls was not an abuse of discretion.

¥.

At the conclusion of Massey-Ferguson’s case-in-chief, ap-

pellants attempted to offer as rebuttal testimony the deposition

of Solties’ brother Francis and a videotape deposition of Dr. John

Lubahn. The court denied the offer. Here, too, we find no abuse

of discretion. Francis’ deposition testimony allegedly was sought

to be introduced to contradict testimony given by Solties’ other

brother, Anthony. Francis’ testimony would not have gone to the

substance of Anthony's testimony, but would only have contra-

dicted it insofar as it related to the time at which Leonard told

Anthony about the accident. Moreover, the testimony sought to

be contradicted related to assumption of risk, a defense on which

the jury was not instructed. Accordingly, even if the proffered

deposition testimony was proper for rebuttal, appellants’ sub-

stantial rights were not affected by its exclusion.

The purpose of Dr. Lubahn’s testimony was to counter the

defense theory that Leonard Solties did not injure his hand as the

result of any defect, but because he tried to disengage corn from

the jammed picker with his hand, while the motor was still run-

ning. In light of the fact that the jury was never instructed on

contributory negligence or assumption of risk, however, appel-

lants could not have been prejudiced by the absence of Dr.

Lubahn’s testimony. Moreover, a case can be made that the tes-

timony of Dr. Lubahn should have been introduced in the

plaintiffs’ case-in-chief and was not proper rebuttal.

VI.

Finally, appellants request a new trial on the basis that the

court improperly denied a continuance requested on behalf of

one of appellants’ counsel, Mr. Rosenbleeth. Upon being told

that Mr. Rosenbleeth had a serious illness in his family, the trial

judge stated, “[WJe can’t postpone a case on that statement.”

App. at 107. The only further explanation for the requested con-

tinuance was forthcoming from Mr. Johnson, another of

A-8

appellants’ counsel: “They explained t- me it's a serious problem

with [Rosenbleeth’s] wife and for the next 30 to 45 days that may

tell the answer on it, and he’s very upset.” Id. No explanation

appears in the record describing what the “se cious problem” in-

volved, nor was there any explanation why counsel could not

appear to try the case for the relatively short period required. At

trial, appellants were represented by co-counsel Haft, who was

fully involved with all stages of the case. The trial court already

had extended the time for discovery once and had reopened dis-

covery once. Futhermore, the court made it clear as early as

November 4, 1986 that trial would commence on January 14,

1986. We find no abuse of discretion.

Vil.

We have carefully considered all the contentions of the ap-

pellants. |

The judgment of the district court will be affirmed.

TO THE CLERK:

Please file the foregoing opinion.

Chief Judge

A-9

Leonard Solties and Cecilia Solties, his wife. v.

Massey-Ferguson, Inc.

No. 86-3092

MANSMANN, Circuit Judge, dissenting.

Among the allegations of error the plaintiffs bring before us

are two issues regarding the trial judge's charge to the jury which

I believe are so basic and fundamental that reversal is warranted.

These issues involve the trial judge's repeated emphasis of the

words “the cause” without accurately explaining legal causation

and his descriptions of the husband-plaintiff’s activity with the

cornpicker which might have led the jury to infer erroneously

that contributory negligence was a defense in a §402A case. I part

company with the majority because my reading of the charge as

a whole leads me to conclude that the charge did not fairly and

adequately submit the issues to the jury and was so confusing and

misleading that the verdict should not stand. See United States

v. Fischbach and Moore, Inc., 750 F.2d 1183 (3d Cir. 1984).

I.

For even lawyers sophisticated in §402A litigation, causa-

tion often poses semantical problems. Indeed, where an injured

party s damages are based on allegations of the manufacturer's

failure to provide guards or safety devices to protect against a

user s inadvertent actions or mishaps, as frankly is often the case,

the lawyers present diftering proposed points for charge on the

question of causation.

While Pennsylvania law is now settled that, as the majority

opinion states, “the product was ‘in a defective condition’ and

that the defect caused the injury”, citing Berkebile, (Typescript

p.5), it is also accepted Pennsylvania law that causation be clearly

defined for the jury — legal cause as opposed to causation in fact.

See Whitner v. Lojeski, 437 Pa. 448 (1970). It is precisely because

multiple factual causes may bring about the injury that causation

correctly defined is crucial to a jury's correct understanding of

the legal issues.

The applicable standard for determining legal or proximate

cause under Pennsylvania law is whether the alleged wrongful

A-10

acts were a substantial factor in bringing about the plaintiffs’

harm. E.J. Stewart, Inc. v. Aitken Products, Inc., 607 F. Supp.

883 (E.D. Pa.), aff'd, 779 F.2d 42 (3d Cir. 1985). Indeed, the

Pennsylvania Suggested Standard Civil Jury Instructions recom-

mend the use of this standard as follows:

If you find that the product was defective, the defen-

dant is liable for all harm caused by such defective condi-

tion. A defective condition is the legal cause of harm if it was

a substantial factor in bringing such harm about. Pa. SSJI

(Civ) §8.04 (June 1984).

This is precisely the point for charge proposed by the plain-

tiff and the one summarily dismissed by the trial judge. Indeed,

at oral argument before our court, counsel for the defendant-

manufacturer admitted that the substantial factor charge is one

regularly and routinely given by Pennsylvania trial judges in

§402A cases.

Instead, the trial judge chose to define causation by relying

on Webster's Seventh Collegiate and the American Collegiate

Dictionaries. As he explained in his charge,

Now, cause is not a word that takes the Supreme Court

Justice of the United States or me or anybody else to worry

about what it means. It’s cause. It’s used in the sense but I

had my secretary look up a couple of them this morning. It's

in a couple of dictionaries . . .

(App. at 338-339.) The jury was led to believe that the lay, non-

legal or “dictionary definition” was correct.’

1. The Pennsylvania Suggested Standard Civil Jury Instructions de-

fine legal cause as follows:

3.25 (Civ) LEGAL CAUSE

In order for the plaintiff to recover in this case, the defendant's (neg-

ligeut) (reckless) (intentional) conduct must have been a substantial factor

in bringing about the accident. This is what the law recognizes as legal

cause. A substantial factor is an actual, real factor, although the result may

be unusual or unexpected, but it is not an imaginary or fanciful factor or

a factor having no connection or only an insignificant connection with the

accident. Pa SSJI (Civ) $3.25 (June 1954).

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A-1l

Rather than explaining clearly that more than one “cause”

may co-exist and the manufacturer still be found liable, the trial

judge chose to dismiss cause as if it were an all-or-nothing, ex-

clusive concept. The trial judge repeatedly stated “the cause”

instead of “a cause” and chose to disregard plaintiffs’ counsel's

exception properly called to his attention at the close of the

charge.

While I believe the charge is fatally flawed by the failure to

give the standard “substantial factor” instruction, I also believe

that the numerous instructions given regarding “the cause” over-

ride the correct but isolated §402A instruction. Some examples

are as follows:

. . . the protection which is required is attained by the ne-

cessity of proving that there was a defect in the manufacture

or design of the product and that such defect was the legal

cause of the injuries. Defect is the cause. (App. at 338)

The cause of it, the cause of my hurting my fist is if I

bang it against that side of this desk maybe. See, a cause, a

cause. Now if there's a defect there, that doesn’t cause it,

then that’s the problem in your case is of course, what

caused this thing, what caused this thing? (App. at 339)

.. . If he did it, if he didn’t do it, was it the cause by these

failures to put on these devices that they — that counsel says

should have been on there? Was that the legal cause? . .

(App. at 341-42)

.. . If you find, however, that Massey-Ferguson manufac-

tured or sold a defective product, which was the cause in

bringing about the Solties harm, then Massey is liable for all

of the harm caused by the defect. . . . (App. at 343)

See, what's the cause? If the defect is the cause, if it is

in fact, it might have been in other injuries, some greater or

lesser and so on, whether he could forsee it or whether they

couldn't. (App. at 344)

A-12

The omission of an explanation or definition of substantial

factor may have led the jury to believe that an “either/or” situ-

ation existed. As well, the charge could have been construed to

require the jury to impose liability on defendant

Massey-Ferguson only if there was no cause of injury other than

the defect(s) alleged. This charge was therefore in error and war-

rants reversal.

Il.

During trial great emphasis was placed on the farmer's ac-

tivities in attempting to repair the machine. This information,

coupled with the confusion over legal and factual causes, made

it incumbent upon the trial judge to explain and to dispel any

thoughts about contributory negligence which the jury would

have had. As we said in Holloway v.]. B. Systems Ltd., 609 F.2d

1069, 1073 (3d Cir. 1979), “The Pennsylvania Supreme Court, in

Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d

1020 (1978), condemned the use of instructions that might lead

a jury, in a §402A action, to believe that the reasonableness of

the defendant’s conduct was an issue in the case.”

Far from dispelling such notions, however, the trial judge's

comments were directed to the issue of contributory negligence

in such a way as to be prejudicial to plaintiffs’ case. The following

portion of the jury charge illustrates the nature of the judge's

error:

What caused -— whether that any defect, if it was one

or two of those defects, did they play any part in it or

whether he walked around and fell down in spite of every-

thing, and did he get hurt on account of falling into the ma-

chine, and he left a free machine running.

There’s a mechanic, he’s run garages, he’s made his

living at it for years, and he walked away twice. he didn't —

He turned it off, he knew it was a danger to walk around

there and play with that machine while it was running.

(App. p. 340-341)

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I would find that the combination of the judge’s remarks

about the plaintiff “playing with the machine” and walking

around and falling down “in spite of everything” coupled with

the incorrect definition of causation could easily impel a jury to

be improperly prejudiced by the farmer’s activity.

The charge, in addition to being prejudicial to the plaintiffs,

was inadequate in describing the law which governs the farmer's

activity and the defect in question. Pennsylvania law is clear that

contributory negligence has no relevance in a products liability

action. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337

A.2d 893 (1975). The charge does not adequately delineate the

circumstances under which the risk of loss should be placed on

the manufacturer. When the charge is read as a whole, I find that

there is an impermissible implication of contributory negligence

as a defense. As such, I cannot say that the error was harmless.

See Bailey v. Atlas Powder Company, 602 F.2d 585 (3d Cir.

1979).

The majority relies upon its finding that plaintiffs’ counsel

failed to object, under Rule 51, to the judge’s factual recitation.

To the contrary, I believe a clear, if abbreviated, objection was

made at sidebar and would find that the issue is properly subject

to our review (App. at 349). The objection made, coupled with

prior discussion between counsel and the court in reviewing the

proposed points for charge, makes it evident that the trial judge

knew what counsel meant. It is the trial judge’s comprehension

and understanding that are important in situations such as these,

not only the literal meaning of the words.

Il.

Because I believe the trial judge’s charge on either the issue

of causation or the issue of contributory negligence merits re-

versal, I do not find it necessary to reach appellants’ other issues.

For the reasons stated, I respectfully dissent.

A-14

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-3092

LEONARD SOLTIES and CECELIA SOLTIES, his wife,

Appellants

vs.

MASSEY-FERGUSON, INC.

and

INTERNATIONAL HARVESTER, CO.

(W.D. Pa. Civ. No. 84-229 E)

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, and SEITZ, ADAMS, GIBBONS,

WEIS, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON and

MANSMANN, Circuit Judges.

The petition for rehearing filed by appellants in the above

entitled case having been submitted to the judges who partici-

pated in the decision of this court and to all the other available

circuit judges of the circuit in regular active service, and no

judge who concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in regular active

service not having voted for rehearing by the court in banc, the

petition for rehearing is denied.

BY THE COURT,

Chief Judge

Dated: November 19, 1986

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