942 F.

2d 210

33 Fed. R. Evid. Serv. 909, Prod.Liab.Rep. (CCH) P 12,949

Connie L. HABECKER, Individually and as Personal
Representative of the Estate of John R. Habecker, Deceased;
John Michael Habecker, Minor, by Connie L. Habecker, his
Parent, Natural Guardian and Next Friend, Appellants,
v.
CLARK EQUIPMENT CO.; Forklifts, Inc., Appellees.
No. 90-5645.

United States Court of Appeals,

Third Circuit.
Argued Feb. 28, 1991.
Decided Aug. 21, 1991.
Rehearing Denied Sept. 27, 1991.

Samuel Posner and Gerald F. Posner (argued), Posner, Posner and Posner,
Detroit, Mich., for appellants.
Richard W. Hollstein and William G. Downey (argued), Clark, Ladner,
Fortenbaugh & Young, Philadelphia, Pa., for appellee Clark Equipment
Co.
John A. Statler (argued), Goldberg, Katzman & Shipman, Harrisburg, Pa.,
for appellee Forklifts, Inc.
Before STAPLETON and ALITO, Circuit Judges, and CAHN, District
Judge* .OPINION OF THE COURT
STAPLETON, Circuit Judge:

Connie Habecker and John Michael Habecker, decedent's wife and minor child,
claim that defendants are strictly liable for John Habecker's death under the
doctrine of "crashworthiness" because a forklift without an operator restraint
system is a defective product. Appealing for the second time from a jury verdict
for defendants, the Habeckers raise two major claims.1 First, they argue that the

district court erred in admitting evidence of what was known in the industry
when the forklift was manufactured about the desirability of operator restraint
systems, evidence that they claim is irrelevant in a strict liability case. Second,
they claim that the district court erroneously believed that it could not permit
new legal theories and evidence on retrial. Because we conclude that evidence
of what was known at the time of manufacture about the desirability of a safety
feature is irrelevant in a crashworthiness case and that a substantial possibility
exists that the inadmissible evidence influenced the jury, we will reverse the
district court's judgment and remand for a new trial. On remand, the district
court may exercise its discretion as to whether the Habeckers should be allowed
to present new theories not barred by this court's mandate or its own prior
orders that were not appealed.
I.
2

John Habecker was killed while attempting to back a forklift down a ramp. The
forklift went off the side of the ramp; Habecker was thrown out and crushed
beneath the forklift. The forklift, manufactured by Clark Equipment Company
("Clark") and leased by Forklifts, Inc., ("Forklifts") was not equipped with
operator restraints, such as a seat belt or harness. The accident happened during
the course of Habecker's employment as a civilian employee of the New
Cumberland Army Depot.

Although this case originally included implied warranty and negligence claims,
those claims were eliminated from the case before the first trial. Once the case
was limited to strict liability, Forklifts appeared to be indemnified by Clark for
any potential liability; therefore, in a stipulation signed by all the parties,
Forklifts dismissed with prejudice its third-party claims against the Department
of the Army and the United States.

After the first trial, the district court granted a directed verdict for the
manufacturer of the ramp and a directed verdict for Clark and Forklifts on the
issue of whether the forklift's throttle was defective. The question of whether
Clark and Forklifts were strictly liable for the absence of operator restraints in
the forklift went to the jury, which ruled for defendants. On appeal, this court
concluded that the district court had violated Rule 702 of the Federal Rules of
Evidence by refusing to permit one of the Habeckers' expert witnesses to testify
and that this exclusion could well have affected plaintiffs' substantive rights.
893 F.2d 49, 53 (3d Cir.1990). Therefore, this court upheld the directed
verdicts, but remanded the case "for a new trial against defendants Clark and
Forklifts on the operator restraints issue." Id. at 54.

Throughout the first trial, the Habeckers argued only that the forklift was
defective at the time it was manufactured--making the liability of Clark and
Forklifts coterminous. Before the second trial, however, the Habeckers stated
for the first time that they wished to pursue an additional theory of strict
liability against Forklifts based on the hypothesis that Forklifts had placed the
forklift in the stream of commerce in a defective condition when it leased the
forklift to the Army in 1983 and 1984. The district court refused to allow that
theory or any other theory that had not been asserted at the first trial, apparently
concluding that our mandate deprived it of discretion to permit the assertion of
new theories of liability. The district court also refused to allow any evidence
or witnesses not listed for the first trial. The Habeckers then agreed to dismiss
Forklifts, without prejudice to their right to argue on appeal that they were
entitled to pursue liability arising from the leases. The trial was held from June
18, 1990 to June 25, 1990, and a jury verdict was returned in favor of
defendant. Final judgment was entered in favor of defendants, and the
Habeckers filed this timely appeal.

II.
6

In a motion in limine and throughout the trial, the Habeckers consistently

objected to evidence concerning what the industry knew about the efficacy of
operator restraint systems in 1977. In particular, they objected unsuccessfully to
evidence offered by Clark tending to show that the industry had been unable to
determine whether operator restraint systems reduced the risk of serious injury
to the operator and that it was only later, after the development of more
sophisticated computer modeling, that the industry decided it was desirable to
equip forklifts with such systems. As of 1977, Clark's evidence suggested, a
manufacturer simply could not have known whether operator restraint systems
created more risks than they eliminated.

The Habeckers claim that this evidence was inadmissible and, combined with
the defendant's closing argument, improperly focused the jury's attention on
Clark's conduct, rather than on the forklift itself. Because Clark conceded that
operator restraint systems were feasible at the time the forklift was
manufactured, the Habeckers argue that the only question for the jury was
whether--seen in light of all the evidence available today--a forklift without an
operator restraint system is "defective." While they acknowledge that evidence
of whether a restraint system results in a net reduction in the risk of serious
injury is relevant to that issue, the Habeckers insist that evidence of whether
one could have known of that net reduction in 1977, including evidence of
computer modeling capability at that time, is irrelevant to that issue. For the
reasons that follow, we agree.

A.
8

Section 402A of the Restatement (Second) of Torts, adopted in Pennsylvania,

states in relevant part,

9 One who sells any product in a defective condition unreasonably dangerous to

(1)
the user or consumer or to his property is subject to liability for physical harm
thereby caused....
(2) The rule stated in Subsection (1) applies although
10
11 the seller has exercised all possible care in the preparation and sale of his
(a)
product....
12

Pennsylvania law recognizes that a product may be "defective" not only

because of an error in manufacturing, but also because of its design:

13 jury may find a defect where the product left the supplier's control lacking any
the
element necessary to make it safe for its intended use or possessing any feature that
renders it unsafe for the intended use.
14

Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020, 1027 (1978). 2
Under the doctrine of crashworthiness, the manufacturer's liability for
producing defectively designed products includes liability for failing to provide
safety features and liability for providing inadequate safety features. As this
court has noted,

15
crashworthiness
... is a variation of strict liability theory.... [It] extends the
manufacturer's liability to situations in which the defect did not cause the accident or
initial impact, but rather increased the severity of the injury over that which would
have occurred absent the defective design.
16

Barris v. Bob's Drag Chutes & Equipment, 685 F.2d 94, 99 (3d Cir.1982).
Thus, crashworthiness imposes liability on the manufacturer for enhancing or
failing to minimize injuries suffered in an accident, rather than for causing the
accident.

17

This court first addressed crashworthiness in Huddell v. Levin, 537 F.2d 726
(3d Cir.1976), a case decided under New Jersey law. In that case, Dr. Huddell's
car stalled when he ran out of gas and was struck from behind by another
vehicle "at a considerable rate of speed." The impact caused Dr. Huddell's head
to hit his head restraint at about 10 m.p.h. Dr. Huddell died one day later of

brain damage. His wife sued the driver of the other vehicle, but also brought
suit against the manufacturer on the theory that the head restraint was
defectively designed.
18

This court began with the legal question of whether the manufacturer owed a
duty to Mr. Huddell.

19 take it as beyond peradventure that an automobile manufacturer today has some

We
legal obligation to design and produce a reasonably crashworthy vehicle. The
manufacturer is not required to design against bizarre accidents; the manufacturer is
not required to produce an accident-proof vehicle. But the manufacturer is required
to take reasonable steps--within the limitations of cost, technology, and
marketability--to design and produce a vehicle that will minimize the unavoidable
danger.... [T]he manufacturer must consider accidents as among the "intended" uses
of its product.
20

537 F.2d at 735.

21

Having found both that the manufacturer owed Dr. Huddell this duty and that
Mrs. Huddell had presented evidence to suggest the head restraint was
defective, this court held that it was for the jury to determine whether the
restraint was defective and whether the defect caused or enhanced Dr.
Huddell's injuries. Huddell established the following burden of proof for
plaintiffs in crashworthiness cases.

22
Unlike
orthodox products liability or negligence litigation, crashworthy or second
collision cases impugning the design of an automobile require a highly refined and
almost invariably difficult presentation of proof in three aspects. First, in
establishing that the design in question was defective, the plaintiff must offer proof
of an alternative, safer design, practicable under the circumstances....
23
Second,
the plaintiff must offer proof of what injuries, if any, would have resulted
had the alternative, safer design been used....
24
Third,
as a corollary to the second aspect of proof, the plaintiff must offer some
method of establishing the extent of enhanced injuries attributable to the defective
design.
25

Huddell v. Levin, 537 F.2d 726, 737-38 (3d Cir.1976).

26

Although the Pennsylvania Supreme Court has not had occasion to adopt or
reject the crashworthiness doctrine, this court has held that "[t]he

crashworthiness doctrine as articulated in Huddell v. Levin is applicable to

cases governed by Pennsylvania law." Roe v. Deere and Co., 855 F.2d 151, 153
n. 2 (3d Cir.1988); see also Jeng v. Witters, 452 F.Supp. 1349 (M.D.Pa.1978),
aff'd mem. 591 F.2d 1334 (3d Cir.1979). In Roe, a tractor rollover case, we
concluded that "[c]rashworthiness is merely a subset of strict liability." 855
F.2d at 154. Because plaintiff had pled strict liability and had presented
evidence that the tractor was uncrashworthy, we held that the district court had
erred in refusing to charge the jury on the crashworthiness doctrine.
B.
27

Having predicted that the Pennsylvania Supreme Court would adopt the
crashworthiness doctrine, we are required by this case to predict what definition
that court would give that doctrine and, specifically, what evidence it would
find relevant in determining liability. The Habeckers argue that it was error for
the district court to admit evidence concerning computer modeling capabilities
in 1977, because that evidence shifted the focus from the defectiveness of the
product to the knowledge and conduct of the manufacturer. Clark responds that
the Supreme Court of Pennsylvania would admit such evidence because
excluding it would impose strict liability bounded only by the ability of "the
fruitful imagination of expert witnesses" to describe safer alternative designs. In
essence, Clark argues that a product is not "defective" because of its design if
no one could know at the time of manufacture that an alternative design would
be safer.

28

It is important to distinguish evidence of what safety features were feasible at

the time a product was designed, from evidence of what safety features were
known to be desirable at that time. Evidence of the first must be admissible in a
crashworthiness case. Liability is imposed on a manufacturer in a
crashworthiness case for a design defect because an alternative, feasible, safer
design would have lessened or eliminated the injury plaintiff suffered. If no
such alternative feasible design existed when the product was manufactured,
then the design cannot be said to be "defective", even if more recent technology
has rendered a safer design feasible. Therefore, the fact finder can only
determine whether a particular design was defective after hearing evidence
about what designs were feasible at the time the product was manufactured and
whether they were in fact safer. Roe, 855 F.2d at 155 (exclusion of testimony
on effectiveness of safety device was error); see also Huddell, 537 F.2d at 737;
Craigie v. General Motors Corporation, 740 F.Supp. 353, 357 n. 8
(E.D.Pa.1990).

29

While evidence of a safety feature's feasibility is relevant to whether the

product was defective under Pennsylvania law, evidence of what was known
about the desirability of a safety feature is not. One commentator has explained
that exclusion of evidence of foreseeability is, indeed, the distinction between
strict liability for design defects and liability for negligence in designing
products. Strict liability for design defect is distinguishable from liability for
negligence only if the actual risks and benefits of the design are evaluated in a
strict liability case without any reference to the foreseeable risks and benefits:
30 fact that a risk or hazard related to the use of a product was not discoverable
The
under existing technology and in the exercise of utmost care ... [is] irrelevant if the
product itself and not defendant's conduct is being evaluated.
31

Prosser & Keeton, Torts 99 at 700 (5th ed. 1984 & Supp.1988); see also Note,
Perpetuating Negligence Principles in Strict Products Liability: The Use of
State of the Art Concepts in Design Cases, 36 Syracuse L.Rev. 759, 804 (1985)
("Strict products liability differs from negligence in design cases in that a
manufacturer is assumed to have knowledge of all hazards [however
unforeseeable] posed by its product.").

32

Excluding evidence of what was or was not known about the desirability of
operator restraint systems in 1977 is consistent with Pennsylvania law's general
exclusion of such evidence in strict liability cases:

33
Having
reached the conclusion that evidence of industry standards relating to the
design of the [product], and evidence of its widespread use in the industry, go to the
reasonableness of [defendants'] conduct in making its design choice, we further
conclude that such evidence would have improperly brought into the case concepts
of negligence law. We also conclude that such evidence would have created a strong
likelihood of [improperly] diverting the jury's attention from the [product] to the
reasonableness of the [manufacturer's] conduct in choosing its design.
34

Lewis v. Coffing Hoist Division, Duff-Norton Co., 515 Pa. 334, 528 A.2d 590,
594 (1987); see also Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537
A.2d 334, 338-39 (1988); Santiago v. Johnson Machine and Press Corp., 834
F.2d 84, 85 (3d Cir.1987) (applying Pennsylvania law).

35

In sum, while we predict that the Pennsylvania Supreme Court would hold
manufacturers liable only for choosing between the safety features feasible at
the time the product was manufactured, we predict it would hold them strictly
liable for that choice. Thus, the manufacturer is liable even if it must choose
blindly, with no information about the relative merits of safety features, and
even if it exercises all possible care in making that choice. This rule can be

justified because it provides manufacturers with an incentive to invest, not only

in proven safety features, but also in the testing and development of any new
feature that may prove superior. "A strict standard of liability offers the
strongest possible incentive, an economic one, for the production of safer
products." J. Beasley, Product Liability and the Unreasonably Dangerous
Requirement 61 (1981).
36

In this case, Clark has conceded that an operator restraint system would have
been feasible in 1977. Therefore, in order to determine whether the forklift was
"defective", the only question for the jury was whether an operator restraint
system is an "element necessary to make [a forklift] safe for its intended use",
Azzarello, 391 A.2d at 1027, a question that is to be answered on the basis of
all the knowledge available at the time of trial. Evidence about what Clark
knew or could have known about the desirability of operator restraint systems
at the time of manufacture is not relevant to that question. "Since [strict liability
is] applicable even to cases in which 'the seller has exercised all possible care in
the preparation and sale of his product,' the standard of care established by the
state of the art is immaterial under strict liability theory." Beasley, supra, at
393.

37

Because under Pennsylvania law, evidence of knowledge about the

effectiveness of safety devices at the time of manufacture is not probative of
whether there is a defect in a crashworthiness case, we would expect it
ordinarily to be excluded by the courts of Pennsylvania. Clark contends, in the
alternative, however, that the evidence it offered about computer modeling was
necessary to rebut evidence the Habeckers offered about the feasibility of
operator restraint systems in 1977. As noted above, however, a safety feature's
feasibility is a separate issue from whether it was known to be effective. Clark
also notes that the Habeckers provided the first mention of computer modeling,
by offering the "Live to Tell About It" safety video. But that video was offered
for the proper purpose of showing that Clark, which produced the video, now
believes operator restraint systems are effective safety devices. Clark does not
explain how it was prejudiced by the video or why it needed to offer rebuttal
evidence about computer modeling. Nor does Clark point to any comment by
the Habecker's about Clark's conduct that would open the door to such
evidence. Accordingly, we decline Clark's invitation to hold that admission of
its evidence concerning the lack of computer modeling capability in 1977 was
invited error.

C.
38

We could uphold the judgment for defendants, despite an erroneous evidentiary

ruling, if we were convinced that there is a " 'high probability' " that the error
did not prejudice the Habeckers' substantive rights. McQueeney v. Wilmington
Trust Co., 779 F.2d 916, 924 (3d Cir.1985). Thus, the judgment for the
defendants should not be set aside if it is highly probable that the jury would
have reached the same verdict without hearing the inadmissible evidence. We
are not persuaded, however, that the evidence of computer modeling was so
benign.
39

The court properly instructed the jury that it was not to consider Clark's
negligence or lack of negligence in reaching its verdict. Nevertheless, it did not
specifically instruct the jury that Clark's knowledge or lack of knowledge about
the desirability of operator restraint systems was irrelevant, and Clark's closing
statement stressed that no one could be certain about the desirability of operator
restraint systems until computer modeling was developed, focusing the jury's
attention on the improperly admitted evidence. In arguing that a forklift without
such a system was not defective in 1977, Clark stated

40 may have heard [plaintiff's expert] say oh, it was feasible to put a seat belt on
you
the forklift in '77. It was feasible to put a wing on. Sure. Seat belts have been around.
They could have thrown a seat belt on the forklift. What would it have cost, nickels
and dimes to put a seat belt on? But the point is not trying to cover yourself in
litigation or doing what seems to be the simple thing. The question is what is best
for the forklift operator....
41 the [hazards that might come from including an operator restraint system] were
All
considered, and still they couldn't come up with an answer until the software
technology in the computer industry reached a point where they were able to do the
kind of computer modeling that you saw on the "Live to Tell About It" video.
42

III.

App. at 1122a-23a. The court simply instructed the jury that to show defect
"the plaintiff must prove by a preponderance of the evidence that an alternative
safer design practicable under the circumstances existed." Without further
instruction on what "defective" or "practicable" mean, the jury could easily
believe that operator restraints were not "practicable" until the industry knew
that they prevented more injuries than they caused. In fact, the district court
appears to have relied on that theory in admitting the evidence of computer
modeling. Thus, a substantial possibility exists that the jury ruled for Clark in
the mistaken belief that the forklift was not defective so long as Clark could not
have known that an operator restraint system would make it safer. Accordingly,
the judgment for defendants must be reversed.

43

Because the issue is likely to surface again on retrial, we note that the district
court appears to have taken too constricted a view of its own authority on
remand. While the parties were preparing for the second trial, the court issued
an order stating in relevant part:

44 sole issue for retrial is whether the forklift was defective when it left Clark
the
Equipment Company in 1977 because it lacked a seat belt or operator restraint
system; ...
45 parties will be confined to presenting evidence through the witnesses listed in
the
their original pretrial memorandum ...
46

App. at 162a-63a.

47

Thereafter, in the course of denying the Habeckers' request for a continuance to

pursue further discovery, the court stated:

48I have been trying to keep this case within the confines of my interpretation of the
...
Third Circuit opinion.
49

I cannot seem to find anything in [the (sic) ] case that would support starting
from scratch on this whole thing. I think that I am confined to retry the case on
the issue that is left in the case, and that is whether the product was defective
for failure to have an operator restraint system.

50

Nobody has come up with anything to convince me that I can go beyond what
the discovery is as of the date of this opinion, that I can allow other issues to
come in. Nobody has given me anything to even justify my restricted, and I'll
guarantee you it's a very restricted view of this opinion as to how I think this
second trial should go.

51

App. at 245a-46a.

52

The district court was correct in believing that it was bound by our mandate on
remand, but it also apparently believed that it had to limit the second trial to the
sole issue mentioned in our mandate. We can understand how our mandate
could be so read, but it was not our intent to so limit the district court. We
referred only to the operator restraint system issue because that was the only
issue remaining of those raised by the parties on appeal.

53

"While a mandate is controlling as to matters within its compass, on remand a

lower court is free as to other issues." Sprague v. Ticonic Bank, 307 U.S. 161,
168, 59 S.Ct. 777, 781, 83 L.Ed. 1184 (1939). For this reason, a district court
ordinarily has substantial discretion in conducting further proceedings after a
remand.
54 the proposition that a trial court must adhere to the decision and mandate of an
From
appellate court there follows the long-settled corollary that upon remand, it may
consider, as a matter of first impression, those issues not expressly or implicitly
disposed of by the appellate decision.... A trial court is therefore free to make any
order or direction in further progress of the case, not inconsistent with the decision
of the appellate court, as to any question not settled by the decision.
55

Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 950 (3d Cir.1985);
see also Int'l Union UAW v. Mack Trucks, Inc., 917 F.2d 107, 110-11 (3d
Cir.1990); Taylor v. U.S., 815 F.2d 249, 252 (3d Cir.1987). A district court's
discretion therefore includes the authority to allow any theory that would be
supported by the complaint and that was not eliminated either by its earlier
orders, not pursued on appeal, or by this court's mandate. For example, the
district court's earlier order dismissing all negligence claims would bar any
attempt to revive those claims and this court's affirmance of the directed verdict
for defendant on the throttle issue would bar any attempt to argue liability
based on that alleged defect, but other theories can be pursued if the district
court concludes that justice so requires.

56

We express no view on whether the district court should permit a new theory of
liability to be pursued at this stage of the proceeding. The district court may
well determine that allowing the Habeckers to pursue a theory of liability not
raised until after the close of discovery and the completion of an entire trial
would result in undue prejudice to the defendants. Moreover, the district court
may conclude that Forklifts--which has dismissed its third-party claim against
the Army--would be unfairly prejudiced by permission to litigate a new theory.
We hold only that the decisions on whether to allow new claims, whether to
permit further discovery, and whether to hear additional evidence were all
within the district court's discretion.

IV.
57

Evidence of computer modeling capabilities in 1977 should not have been

admitted into evidence and its admission may have affected the outcome of the
proceedings. Accordingly, we will reverse the judgment for the defendants and
remand for a new trial.

Honorable Edward N. Cahn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

They also claim the district court abused its discretion in making specific
evidentiary rulings. We have reviewed those rulings and affirm them without
further comment

In adopting this definition of defect, the Pennsylvania Supreme Court reject the
more common approaches that define defect by considering consumer
expectations or by balancing the utility and risks of a product. "The decision of
this Court in Azzarello sets forth yet [a third] approach to the question of when
a design defect may be found to exist." Lewis v. Coffing Hoist Division, DuffNorton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987). Whatever the relative
merits of these definitions we are bound by that court's choice