Opposition Brief — Solties v. Massey-Ferguson, Inc.

_ Supreme Court, U.S,

f EILED

MAR LS 1987

No. 86-1441 JOSEPH F. SPANIOL, JR.

CLERK

ay

4

IN THE

Supreme Court of the United States

October Term 1986

LEONARD SOLTIES and CECILIA SOLTIES, h/w

Petitioners,

v.

MASSEY-FERGUSON, INC.,

Respondent.

BRIEF FOR RESPONDENT MASSEY-FERGUSON,

INC. IN OPPOSITION TO PETITION FOR

CERTIORARI TO THE SUPREME COURT

OF THE UNITED STATES

On Appeal From the Final Order Denying Reargument

Entered by the United States Court of Appeals

for the Third Circuit at No. 86-3092

Entered November 19, 1986.

Chester S. Fossee, Esquire

(Counsel of Record)

Lisa Ondich, Esquire

REALE, FOSSEE & FERRY, P.C.

900 Manor Complex

564 Forbes Avenue

Pittsburgh, Pennsylvania 15219

(412) 281-8117

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

ees

I.

II.

iil.

QUESTIONS PRESENTED FOR REVIEW

THE TRIAL COURT'S DENIAL OF PLAINTIFFS’

REQUEST FOR A CONTINUANCE DOES NOT

PROVIDE A BASIS FOR A CONSTITUTIONAL

CHALLENGE OF A VIOLATION OF DUE PRO-

CESS.

THE TRIAL COURT’S CHARGE WAS CONSIS-

TENT WITH PENNSYLVANIA LAW AND AS

SUCH DOES NOT CONSTITUTE A BASIS FOR

REVIEW BY THIS COURT.

THE TRIAL COURT'S EXCLUSION OF

PLAINTIFFS’ REBUTTAL TESTIMONY WAS

PROPER AND DOES NOT PROVIDE A BASIS

FOR A CONSTITUTIONAL CHALLENGE OF A

VIOLATION OF DUE PROCESS.

PARTIES TO THE PROCEEDINGS BELOW

Plaintiffs below: Leonard and Cecilia Solties, hus-

band and wife.

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

ternational Harvester Company.

International Harvester Company was dismissed as

a party defendant before trial and did not participate in

the trial or appellate proceedings below.

Massey-Ferguson, Ltd. is the parent corporation 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. This information was included on

the disclosure of corporate affiliations and financial in-

terest statement filed with the United States Court of

Appeals for the Third Circuit at No. 86-3092 on February

11, 1986.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...... i

PARTIES TO THE PROCEEDINGS BELOW .... | ii

EY WIPO OR 0K occ ncecg cb alcceces coves iii

MT EIT, ons nck pk sewed kee en cee. iv

COUNTERSTATEMENT OF THE CASE........ 1

PIs oe Oh olde 0d Ls ok WEG Bork vse 6

I. THE TRIAL COURT'S DENIAL OF

PLAINTIFFS’ REQUEST FOR A CONTINU-

ANCE DOES NOT PROVIDE A BASIS FOR A

CONSTITUTIONAL CHALLENGE OF A VI-

OLATION OF DUE PROCESS ............. 6

II. THE TRIAL COURT’S CHARGE WAS CON-

SISTENT WITH PENNSYLVANIA LAW AND

AS SUCH DOES NOT CONSTITUTE A BA-

SIS FOR REVIEW BY THIS COURT........ 10

Iii. THE TRIAL COURT’S EXCLUSION OF

PLAINTIFFS’ REBUTTAL TESTIMONY

WAS PROPER AND DOES NOT PROVIDE A

BASIS FOR A CONSTITUTIONAL CHAL-

LENGE OF A VIOLATION OF DUE PRO-

SE ae bik PENG die diy Fhenie gale a UES Oh ae 13

NESS 0 PGA cw Sen Jeo eawe's ogc 05% 17

CERTIFICATE OF SERVICE................... 18

TABLE OF CITATIONS

Cases: Page

Azzarello v. Black Brothers Co., 480 Pa. 547, 391

Ae Be FEA ik eee cceeranpesess tea ee 10

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

rey ge BF). See Pape a renin rarer 10

Bowman v. General Motors Corp., 427 F.Supp. 234

CH Be WU EER ahi oe hec eves padseeeuenyes 13, 14

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

SIND oi bck xeekan pen didnys +4 14 dea eek 7

Erie Railroad Co. v. Tompkins, 304 U.S. 64

Gree rok r ag | oD bee rere ts eee 10

Fehlhaber v. Fehlhaber, 681 F.2d 1015 (1982) re-

hearing denied 702 F.2d 81, cert. denied 464

ee ee CR ios Seno ees ene eek, Tek 9

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

PT hr cage vb bi teehee een beah<s > Gg

Gaspar v. Kassam, 493 F.2d 964 (3d. Cir., 1974).. 7

Gedders v. United States, 425 U.S. 80 (1976)..... 14

Grothusen v. National Railroad Passenger Corp.,

603 F.Supp. 486 (3d. Cir., 1984)............. 6

Harvey v. Andrist, 754 F.2d 569 (5th Cir., 1985). 6

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

PTO svn 6 v0 i000 6055 Dee ba reo 7

McGowan v. Devonshire Hall Apartments, 278 Pa.

Super. 229, 420 A.2d 514 (1980) ............ 12

Smith-Weik Machinery Corp. v. Murdock Machine

& Engineering Co., 423 F.2d 842 (5th Cir.,

PEGE Ai eare nama opa ge. ies 2 a ae 7

iv

TABLE OF CITATIONS—(Continued)

Cases: Page

United States v. Bernhardt, 642 F.2d 251 (8th Cir.,

oo I AES CB ie FEI toe ot ape 6

United States v. Peltier, 585 F.2d 314 (8th Cir.,

1978) cert. denied 440 U.S. 945 (1979) ...... 13

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

(3rd Cir., 1969) cert. denied 397 U.S. 946

Ee. BS Paes SS Le ieck she Ae eins 9

Upshur v. Sheperd, 538 F. Supp. 1176 (E.D. Pa.

8 IEE rir We NY ew cam Mey Fi gt ee 14

Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).. 10

Rules:

Federal Rules of Civil Procedure 51.............. 12

Federal Rules of Evidence 403.................. 14

Federal Rules of Evidence 611(a)................ 14

suspmreeme Gouet Mute 17.1...............cecc. 13, 17

Other Authorities:

Restatement (Second) of Torts §402A............ 11

COUNTERSTATEMENT OF THE CASE

The instant action was filed as a result of an accident

which occurred on November 2, 1982, at which time

Leonard Solties sustained injuries to his right hand and

leg while attempting to unplug a corn picker by reaching

into an area where snapping rolls and gathering chains

were rotating. Mr. Solties did this in spite of being fully

aware of all of the hazards and dangers involved in at-

tempting to unplug a corn picker while it was still oper-

ating. (R. 189a-190a).

The instant action was commenced as a diversity

jurisdiction/products liability action against Massey-

Ferguson, contending that there were two defects in the

equipment that caused the injuries sustained by Mr.

Solties. The first contention was that there should have

been “stripper plates” over the snapping rolls to act as a

guard and the second item was that there should have

been an emergency cutoff device in the form of a wire

placed on the shield to the right of the snapping rolls

which could shut off the equipment in case the plaintiff

became caught in the rollers. (T.R. 218).

After a three-day trial on liability only before Judge

Willson and a jury, a verdict was returned in favor of

Massey-Ferguson. Thereafter, Petitioners appealed this

matter to the Court of Appeals for the Third Circuit,

which affirmed the trial court. A Petition for Reargument

was subsequently denied. Plaintiff filed the instant Pe-

tition for Certiorari, alleging that there exists a sufficient

basis for this Honorable Court to grant Certiorari.

The corn picker involved in the accident was man-

ufactured by the Respondent under its prior corporate

name of Massey-Harris in 1950 or 1951, slightly more

than 30 years before the accident. It is a single row pull

type corn picker that is connected to a tractor at the

power takeoff unit. Through the use of gears and chains,

the various components of the corn picker operate. (R.

132a-133a).

2

The plaintiff's injuries occurred at the head of the

corn picker, which contains two separate moving parts.

The first part is the gathering chains which are used to

gather the corn stalks and move them into the head and

up the snapping rolls. The second part is the snapping

rolls which rotate toward each other and are designed to

grip and pull the corn stalks in a downward motion and

to snap the ears of corn from the stalks in such a manner

that between 75 to 90 percent of the husks are also re-

moved. These moving parts are contained within a V-

shaped structure of smooth metal so that the corn stalks

will slide easily over them and through the snapping

rolls. (T.R. 311-312, 314-316).

The ears of the corn then pass through an opening

in the sheet metal of the head onto an elevator that car-

ries them to the husking bed. The small husking bed

removes the balance of the husks from the picked corn.

(T.R. 311). From the bed, the corn is then carried by

means of an elevator to a position from which it is

dropped into a wagon or similar container that is pulled

behind the corn picker. (R. 134a).

It is necessary to coordinate the speed of the tractor

over the ground with the speed of the gathering chains

and the snapping rolls. Ideally, the corn stalks will re-

main in a vertical position as they move throush the head

of the picker. The head has pointed metal snouts which

help to pickup bent over stalks of corn. The gathering

chains then help move these stalks into snapping rolls.

(T.R. 314-316). For the gathering chains to function,

they have metal fingers attached which grab on to the

stalks of corn.

The snapping rolls have sharp ridges of metal so that

they can grip stalks to impart the necessary downward

motion so that the corn picker can move through the

stalk at the appropriate rate of speed. Due to different

varieties of corn, the snapping rolls are adjustable as far

as their separation is concerned. (T.R. 229). In addition,

the set screws can be utilized to impart a more aggressive

3

grip to the corn stalk to facilitate its movement through

the snapping rolls. (R. 160a).

The type of corn involved in the instant case is field

corn, utilized to feed farm animals. Since the corn is to

be stored, it is essential that all of the husks be removed

since husks will spoil the corn. (R. 156a, 263a).

On the morning of the accident, the plaintiff found

that the worn snapping rolls of the corn picker would not

pull the damp corn stalks through in an appropriate

manner thereby causing the corn picker to plug. Despite

knowing that he was to shutof the PTO before attempt-

ing to unplug the picker, (R. 189a-190a), Mr. Solties did

not do so and when he attempted to unjam the head of

the corn picker with the snapping rolls stil! rotating, the

stalks began to move through and his right hand was

pulled into the very rear portion of the corn picker head.

Mi. Solties’ hand was still in the form of a fist when it

came in contact with the rolls as the injury he sustained

was to the knuckle portion of his right hand. (R. 178a).

As a result of the downward pull of the corn stalk

through the rolls, or in an effort to get his balance and

brace himself, Mr. Solties’ right leg entered the front por-

tion of the head so that the lower leg was caught by the

gathering chains.

Leonard Solties did not testify that the accident oc-

curred as set forth above, but rather, testified that while

walking around the operating machine in an effort to lo-

cate a noise, he slipped, causing his right hand to first

come into contact with the inside surface of the snout

and then slide down into the snapping rolls. However,

this version of the accident was contradicted at the trial

by either direct testimony, circumstantial evidence or

physical facts.

The contradictions began with the acquisition of the

corn picker and carried on all through Mr. Solties’ story

including what he did immediately after the injury oc-

curred. His testimony as to how he obtained the equip-

ment was contradicted by the prior owner of the -.

4

equipment, Homer Barber. (R. 260a). His testimony as

to what he accomplished on the morning of the accident

was contradicted by Neal Chelton and Petitioner’s

brother, Anthony Solties. (R. 264a-265a, 298a). Mr.

Solties’ testimony as to the condition of the snapping

rolls was contradicted by the testimony of Neal Chelton

and his brother, Anthony Solties. (R. 266a, 298a-299a).

Mr. Solties’ version as to how the accident occurred was

contradicted by the testimony of his brother Anthony

Solties, and by the physical facts of the construction and

location of the items within the equipment and the in-

juries themselves. As an example, Anthony Solties tes-

tified that his brother toid him he was injured while

trying to unjam the equipment. (R. 299a).

The Petitioner’s description of how he fell into the

equipment would have necessitated severe injuries to

his upper right extremity caused by the gathering chains

which pass over the snapping rolls. However, the phys-

ical facts reveal that the injury was limited to the knuckle

portion of his hand. Therefore, the only place that he

could have contacted the snapping rolls was toward the

rear of the head where there were no gathering chains.

(R. 285a). Since his hand entered the equipment in the

form of a fist, based upon his injury, it is far more likely

that he encountered the rolls as a result of having been

grasping a corn stalk rather than having fallen.

Petitioners attempted to support their liability claim

by alleging that there were two defects in the equipment

that caused the injuries sustained by the plaintiff, the

lack of “stripper plates” over the snapping rolls and the

lack of an emergency shutoff device which could be used

to shutoff the equipment in the case of someone becom-

ing caught in the rollers. However, the expert testimor: y

introduced by the plaintiff was overshadowed by the ex-

tremely credible testimony of Respondent’s expert, John

Zich. Mr. Zich has an engineering degree in agriculture

and 48 years of direct experience in the farm machine

5

industry. (T.R. 287). He was directly involved in the de-

sign and construction of one of the corn pickers built

with stripper plates that plaintiff’s expert referred to in

his testimony. (T.R. 305). Contrary to plaintiff's expert,

Mr. Zich testified that the stripper plates were thor-

oughly investigated, tested and utilized by various man-

ufacturers. As a result of this experience, it was clear that

the pickers using stripper plates would not husk the corn

which, while desirable for sweet corn or popcorn, was

detrimental to field corn which was what Mr. Solties was

farming. (T.R. 309-312).

As was stated by the Peititioner himself and Neal

Chelton, husks on field corn cause it to spoil. (R. 156a,

263a).In addition, stripper plates will not prevent inju-

ries since they are underneath the gathering chains and

are wider apart than the snapping rolls. (R. 283a-284a).

Therefore, since they are not designed to be guards, they

would not protect a farmer from injury if he chose to

ignore the warnings and attempted to unjam an operat-

ing corn picker.

Petitioners also attempted to prove that the equip-

ment should have had an emergency stop mechanism.

This of course would not have prevented plaintiff's in-

jury and based upon the mechanism of Mr. Solties’ in-

jury, it would not have even reduced the severity. The

design recommended by Petitioners’ expert would have

interfered with the effective operation of the picker and

increased the incidence of plugging thereby increasing

the possibility of injury by farmers having to unplug the

equipment. (T.R. 320-321), (R. 276a). In addition, the

mechanism advocated by Petitioners’ expert would have

been physically impossible for Mr. Solties to utilize be-

cause of its location and the amount of strength required

to activate it. (T.R. 320-322).

The evidence was clearly supportive of Mr. Zich’s.

opinion that the product in question was not defective

and therefore not a cause of plaintiff’s injuries. (R.

277a). The matter was submitted to the jury in such a

6

manner that if the jury found that a product was defec-

tive, they would return a verdict for the plaintiff. The jury

was not charged that they could find the defendant was

not liable because the plaintiff assumed a risk. The jury’s

verdict for Massey-Ferguson was a clear statement that

they did not find the product to be defective.

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

QUEST FOR A CONTINUANCE DOES NOT PROVIDE

A BASIS FOR A CONSTITUTIONAL CHALLENGE OF

A VIOLATION OF DUE PROCESS

It is well-established that the granting or refusal of a

continuance is a matter within the sound discretion of

the trial court, and shall not be reversed unless there is

_an abuse of discretion. See generally Grothusen v. Na-

tional Railroad Passenger Corp., 603 F. Supp. 486 (3rd

Cir., 1984); Harvey v. Andrist, 754 F.2d 569 (5th Cir.,

1985). When presented with a constitutional challenge,

“(T]he determination of whether a denial of a continu-

ance is arbitrary enough to violate due process depends

on the circumstances present in every case, particularly

in the reasons presented to the trial judge at the time the

request is denied.” United States v. Bernhardt, 642 F.2d

251, 252 (8th Cir., 1981), citing Ungar v. Sarafite, 376

U.S. 575 (1984). A review of the circumstances present

in the instant case, and the reasons presented for the

continuance, clearly indicate that the trial court did not

abuse its discretion by refusing Petitioners’ request and

likewise, did not deprive Petitioners of due process.

The record reveals that prior to the subject request

for a continuance, the trial court had continued the case

on two occasions. The first continuance occurred be-

cause the case was not ready for trial. The second con-

tinuance was due to the unavailability of counsel. At an

argument held on November 4, 1985, the Court made it

clear that the case would be tried commencing January

7

13, 1986, and that a final pre-trial would take place on

January 7, 1986. (T.R. 35).

In addition to the fact that the case had already been

previously continued, the trial judge was not certain as to

his future status as a senior judge. Judge Willson was the

sole judge to handle this matter from the time of its initial

transfer to the Western District and as such, did not want

to leave this matter to be tried by a judge totally unfa-

miliar with the facts and the parties. (R. 115a-116a).

While the trial judge had valid reasons for desiring to

dispose of the trial of this case when scheduled, Peti-

tioners failed to provide the Court with substantial jus-

tification for continuing this matter. The cases relied on

by the Petitioners as support for their position that the

trial judge abused his discretion, are not controlling on

the instant case. In Smith-Weik Machinery Corp. v.

Murdock Machine & Engineering Co., 423 F.2d 842 (5th

Cir., 1970), the trial court had significantly advanced the

trial date and refused a request for a continuance of four

days. Nor is Latham v. Crofters, Inc., 492 F.2d 913 (4th

Cir., 1974), controlling on the instant situation, where

the attorney was also the defendant and was ill and un-

able to attend the trial. Likewise, in Cornwell v.

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

Kassam, 493 F.2d 964 (3rd. Cir. 1974), the requests for

continuances were because of the iliness of a party to the

respective actions.

In the case at bar, Petitioners’ request was vague and

indefinite both as to the reason for the request and-the

duration of the continuance. The only explanation ever

given for the continuance was set forth by Mr. Johnson,

one of Petitioners’ counsel when he said “They’ve ex-

plained to me it’s a serious problem with the wife and for

the next 30 to 45 days that may tell the answer on it, and

he’s very upset.” (R. 107a). Based on this vague state-

ment, Judge Willson denied the request and stated:

“.. .[W]e can’t postpone a case on that statement.” (R.

8

107a). In spite of Petitioners being advised that their rea-

son for a continuance was insufficient, the record is void

of any additional justification for the continuance. There

was never any explanation given as to what the “serious

problem” involved, nor was there any explanation as to

why Mr. Rosenbleeth could not appear to try the case for

the relatively short period of time it would have required.

The Petitioners argue that Mr. Rosenbleeth was

their lead counsel and that they were forced to find sub-

stitute counsel for him at the last minute. The record

does not support these contentions. To begin, Mr.

Rosenbleeth did not take an active part in the prepara-

tion of the case. Out of nine depositions that were taken,

he attended three. In addition, out of all the pre-trial con-

ferences that were held, he attended only one. On the |

other hand, Mr. Haft, who also represented the Petition-

ers, attended all of the depositions and all of the pre-trial :

conferences. It is little wonder that the trial judge had |

difficulty accepting Petitioners’ statements that Mr. |

Rosenbleeth was the lead counsel in this case.

With regard to Petitioners’ contentions that they

were required to substitute counsel at the last minute,

the facts indicate that a week before trial, Petitioners

were aware of the fact that the case would proceed. Pe- |

titioners had the Court’s permission to utilize Mr. |

Rosenbleeth on only the important matters, so that he

would not have to remain during the entire trial. (R.

116a-117a). Mr. Haft was present through the entire

" pre-trial stage of the case and was also present during the

trial. It is clear that if in fact substitute counsel was nec-

essary, ample time and assist >1ce were available to pre-

pare for and try this case.

Petitioners attempt to find a basis for a violation of |

due process by arguing that they were denied their op- |

portunity to be represented by counsel of their choice at |

|

|

the time of trial. Initially, it must be pointed out that

Petitioners’ reliance on case law involving criminal pro-

ceedings as support for their position that there was a

ie calil

9

violation of due process, is not dispositive of the instant

case. The right of a defendant in a criminal proceeding:

to be represented by counsel of his choice is guaranteed

by the Constitution. In such a case, due process de-

mands that a defendant be afforded a fair opportunity to

obtain the assistance of counsel of his choice and to pre-

pare and conduct his defense. This constitutional man-

date is satisfied so Jong as the accused is afforded a fair

or reasonable oppcrtunity to obtain particular counsel,

and so long as there is no arbitrary action prohibiting the

effective use of such counsel. However, the conclusion is

inescapable that “[A]ithough the right to counsel is ab-

solute, there is no absclute right to a particular counsel.”

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

1215 (3rd. Cir., 1969), cert. denied, 397 U.S. 946 (1970).

(emphasis supplied). As was stated in Gandy v. Ala-

bama, 569 F.2d 1318 (5th Cir., 1978), “at some point,

that right [to counsel of choice] must bend before

countervailing interests involving effective administra-

tion of the courts.” Gandy, 569 F.2d at 1323, n. Q.

Petitioners attempt to argue that they had a Consti-

tutional right to be represented at trial by Mr.

Rosenbleeth. However, it must be noted that in a crim-

inal matter, involving life and liberty interests, there is

no absolute right to a particular counsel. Therefore, in a

civil case where only property interests are at stake, the

due process requirements are much less stringent, and

an absolute right to a particular counsel does mat exist.

Ordinarily, “all that due process requires in a civil case is

proper notice and service of process and a court of com-

petent jurisdiction.” Fehlhaber v. Fehlhaber, 681 j 2d

1015, 1027 (1982), rehearing denied 702 F.2d 81, cert.

denied 464 U.S. 818 (1983).

Petitioners cannot argue that they were not granted

sufficient notice of the trial of this matter, and that they

were not given a fair opportunity to present their case.

There is no contention by the Petitioners that they were

not adequately represented at the trial by competent

10

counsel. To the contrary, Petitioners’ position is that they

were entitled to be represented by Mr. Rosenbleeth

alone. As is clear from the case law, such an absolute

right to particular counsel is not constitutionally pro-

tected.

Based upon the substantial advance notice as to the

dates for commencing the trial, the reasons for the case

to proceed on schedule, the number of lawyers involved

in the representation of the Petitioners throughout the

proceedings, and the vague unexplained reasons given

by Petitioners for the continuance, it is clear that the de-

nial by the trial judge of Petitioners’ request for contin-

uance did not constitute an abuse of discretion and

further, did not constitute any violation of Petitioners’

due process.

Il. THE TRIAL COURT’S CHARGE WAS CONSISTENT

WITH PENNSYLVANIA LAW AND AS SUCH DOES

NOT CONSTITUTE A BASIS FOR REVIEW BY THIS

COURT.

Pursuant to the well-established principles of Erie

Railroad Co. v. Tompkins, 304 U.S. 64 (1938) and its

progeny, it is clear that Pennsylvania law is applicable to

the instant action. Furthermore, it is clear that under

Pennsylvania law, strict liability under §402A requires

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

condition” and that the defect caused the injury.

Azzarello v. Black Brothers, 480 Pa. 547, 391 A.2d 1020

(1978); Berkebile v. Brantly Helicopter Corp., 462 Pa.

83, 337 A.2d 893 (1975); Webb v. Zern, 422 Pa. 424, 228

A.2d 853 (1966). As is evident from a review of the trial

court’s charge, Judge Willson properly instructed the

jury on these principles.

Petitioners aver that the Erie. doctrine was repudi-

ated by the trial court’s failure to include the words “sub-

stantial factor” in the charge on causation. A review of

ee ee

11

the trial court’s charge in its entirety, which was af-

firmed by the Third Circuit, establishes that Petitioners’

arguments are without merit.

The trial court’s charges on causation began as fol-

lows:

So this machine today though was under 402(a),

the Restatement of the Law, and that simply says

this: the issue I mentioned a half dozen times and I

guess I better talk to it one more time, and that’s

when a manufacturer manufactures a product, and

guarantees its safety for the use for which it was in-

tended. If a defect — if it has a defect which causes

an injury, liability is certain. (R. 329a).

Instructing the jury on the definition of cause, the

trial 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 is a defect there,

that does not cause it, then there’s the problem in

your case is of course, what caused this thing, what

caused this thing? (R. 339a). (emphasis supplied).

Judge Willson continued by stating:

If you find that lack of a cutoff switch or guards

over the snapping rolls made this corn picker defec-

tive, that it is unsafe for its use, Massey-Ferguson

caused the harm. (R. 343a). (emphasis supplied).

As is indicated by the excerpts from the charge, the

trial judge properly instructed the jury. In fact, as was

stated by the Third Circuit, far from prejudicing the Pe-

titioners, the trial court instructed the jury that if it

found a defect in the corn picker, Massey-Ferguson

caused the harm to Leonard Solties. This charge by

Judge Willson was tantamount to a directed verdict

against Massey-Ferguson if a defect in the corn picker

was found by the jury.

12

A review of the trial court’s charge does not indicate

any instruction, or inference to the jury, that there must

be a finding of “no other cause of the injuries” as a pre-

requisite to liability. Contrary to Petitioners’ arguments,

the trial court’s charge was not contrary to Pennsylvania

law on causation, but rather, eliminated from the jury’s

discretion the possibility of alternate or concurrent

causes.

Petitioners also aver that the trial court’s charge in-

jected contributory negligence into a products liability

case which was contrary to Pennsylvania law. However,

as was indicated by the Third Circuit, the Petitioner did

not properly object to the charge as is required under

Rule 51 of the Federal Rules of Civil Procedure. A failure

to object to an instruction precludes the Petitioner from

now alleging error as a basis for a new trial on appeal.

It is well-established that a trial judge has the dis-

cretion to summarize the evidence gathered at trial and

the extent of his review depends largely upon the cir-

cumstances of the case and is left within the judgment

and discretion of the trial judge. McGowan v. Devonshire

Hall Apartments, 278 Pa. Super. 229, 420 A.2d 514

(1980). Petitioners attempt to rely on an isolated portion

of the charge, arguing that it amounted to an instruction

on the contributory negligence of Leonard Solties, con-

trary to Pennsylvania law. It is clear, however, from the

text of the charge (R. 340a-342a), that the commen:s on

the testimony related directly to credibility.

Petitioners also make reference to the issue of as-

sumption of the risk. While Massey-Ferguson believed

that sufficient evidence had been introduced to permit a

charge on assumption of the risk, the trial court refused

to grant said charge. As such, Petitioners have no basis

to allege that the trial court’s charge was contrary to

Pennsylvania law on this issue.

In an effort to allege a basis upon which this Court

may grant Certiorari, Petitioners aver that they were

forced to satisfy some “novel burden of proof.” A review

en ee ae ee ee ee we ae ee

a ee

13

of the trial court’s charge in its entirety clearly indicates

that the charge was proper under Pennsylvania law ard

did not present any novel burdens. The Third Circuit,

upon reviewing the charge, held that errors were not

present on either the issue of causation or contributory

negligence.

Petitioners have failed to present the mandated spe-

cial and important reasons required by Supreme Court

Rule 17.1 for review on Writ of Certiorari, and as such,

the Petition should be denied.

Ill. THE TRIAL COURT'S EXCLUSION OF

PLAINTIFFS’ REBUTTAL TESTIMONY WAS

PROPER AND DOES NOT PROVIDE A BASIS FOR

A CONSTITUTIONAL CHALLENGE OF A VIOLA-

TION OF DUE PROCESS.

The exclusion by the trial court of the Petitioners’

offer as rebuttal testimony the deposition of Frances

Solties, the Petitioner’s brother and the videotape depo-

sition of Dr. John Lubahn, one of Petitioner’s treating

physicians, does not constitute a violation of the Consti-

tutional right of procedural due process. Under the Fed-

eral Rules of Evidence, a trial court has broad discretion

in determining the relevancy and admissibility of evi-

dence. “It is only when the trial court excludes relevant

evidence without sufficient justification that a

defendant’s right to compulsory due process is violated.”

United States v. Peltier, 585 F.2d 314, 332 (8th Cir.,

1978), cert. denied 440 U.S. 945 (1979).

In the instant case, the excluded evidence was re-

buttal testimony, for which the standard of review is

well-established. In Bowman v. General Motors Corp.,

427 F. Supp. 234 (E.D. Pa. 1977), the Court stated:

There is a unanimous agreement that on rebut-

tal it is properly within the discretion of the trial

judge to limit testimony to that which is precisely

14

directed to rebutting new matter or new theories pre-

sented by the defendant’s case in chief. (Citations

omitted).

Conversely, the only cases in which the District

Court’s discretion to exclude rebuttal testimony has

been found to be abused are those in which

defendant’s witnesses have presented an alternative

theory or new facts or have otherwise created a need

for a particularized response. (Citations omitted).

Id. 427 F. Supp. at 240. See also,-Upshur v. Shephard,

538 F. Supp. 1176 (E.D. Pa. 1982).

Pursuant to Rule 403, Federal Rules of Evidence,

the District Court may exclude relevant evidence which

is otherwise cumulative, a waste of time, misleading or

confusing to the jury which causes undue delay or unfair

prejudice. The District Court’s control is further en-

hanced by the discretionary powers under Federal Rule

of Evidence 611(a) which states that the Court shall ex-

ercise control over the mode and order of interrogating

witnesses and presenting evidence. As the “governor of

the trial for the purpose of assuring its proper conduct,”

the District Court exercises broad powers to “determine

generally the order in which parties will adduce proof.”

Gedders v. United States, 425 U.S. 80, 86 (1976).

The proffered deposition testimony of Frances

Solties was sought to be introduced to contradict the tes-

timory given by Solties’ other brother, Anthony. As was

stated by the Third Circuit, Frances’ testimony would

not have gone to the substance of Anthony's testimony,

but would only have contradicted it insofar as it related

to the time at which Leonard told Anthony about the ac-

cident. The Third Circuit also found that the testimony

sought to be contradicted related to assumption of the

risk, a defense on which the jury was never instructed.

Finally, the Third Circuit determined that even if the

at

15

proffered deposition testimony was proper for rebuttal,

Petitioners’ substantive rights were not affected by its

exclusion.

Petitioners also aver that the testimony of Dr.

Lubahn was erroneously excluded. However, the testi-

mony of Dr. Lubahn was not proper rebuttal. Respon-

dents intended to present as an expert Dr. Peter Fuller.

A report filed by Massey-Ferguson, and attached to their

Pre-Trial Statement, indicated that Dr. Fuller opined

that the injuries sustained by Leonard Solties were the

result of his attempts to unplug the corn picker while it

was in operation. (See Massey-Ferguson Pre-Trial State-

ment). However, Dr. Fuller was not permitted to testify.

(T.R. 393). Since Massey-Ferguson was prevented from

introducing as evidence in their case in chief the theory

presented by Dr. Fuller, the proffered testimony of Dr.

Lubahn was not proper rebuttal.

As was stated above, the trial judge did not instruct

the jury on the assumption of the risk. Therefore, the

offered testimony of Dr. Lubahn did not go to the issue

of causation. In light of the fact that Massey-Ferguson’s

expert was not permitted to testify as to how the accident

occurred, and the jury was not instructed on assumption

of the risk, any basis for Petitioners to introduce Dr.

Lubahn’s testimony was eliminated.

Finally, the portion of Dr. Lubahn’s testimony of-

fered by Petitioners as rebuttal was obtained over objec-

tion of Massey-Ferguson’s counsel. Dr. Lubahn’s

opinion that the injuries to Leonard Solties’ hand were

not consistent with Leonard having reached into the ma-

chine as contended by Dr. Fuller was beyond any report

filed by Dr. Lubahn or supplied by Petitioners’ counsel.

As such, the offered testimony of Dr. Lubahn was in con-

travention of the rules governing pre-trial procedure and

experts’ opinions. Thus, this particular portion of Dr.

Lubahn’s testimony was neither admissible in plaintiff ’s

16

case in chief nor did it constitute proper rebuttal and as

such, was properly excluded and did not violate any pro-

cedural due process.

Petitioners’ argument that the exclusion of this tes-

timony rises to the level of a due process violation is com-

pletely unsupported by case law. The case law cited by

Petitioners as controlling involved situations where liti-

gants were not given adequate notice, or were denied

such rights as the ability to communicate freely with

their counsel. Petitioners have failed to come forth with

any case law which supports their contentions that re-

buttal testimony, such as was excluded in the instant

case, constitutes a violation of procedural due process

which would provide a basis for review by this Court.

17

CONCLUSION

Petitioners have failed to present the mandated spe-

cial and important reasons required by Supreme Court

Rule 17.1 which indicates the basis for review on Writ of

Certiorari by this Honorable Court. As such, the Petition

for Writ of Certiorari should be denied.

Respectfully submitted,

REALE, FOSSEE & FERRY,

P.C. /]

BY: |) ai

C. S. Fossee, Esquire

Lisa Ondich, Esquire

900 Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

Attorneys for

Massey-Ferguson, Inc.,

Respondent