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J. A06039/00
2000 PA Super 198




: No. 2727 EDA 99
Appeal from the Judgment Entered November 16, 1999,
In the Court of Common Pleas, Montgomery County,
Civil Division, at No. 95-16802.
Filed: July 12, 2000
This is an appeal from a judgment entered in Appellee's favor in a
products liability action. Appellants raise four issues for our consideration,
which we restate as follows: whether the court erred in preventing
Appellants from referencing, for any reason, a chair manufactured by
Appellee that possessed the design feature Appellant's expert opined would
remedy the defect the chair in question possessed; whether the court erred
in refusing to preclude testimony of misuse of the chair; whether the actions
of the court demonstrated prejudice and bias against Appellants and whether

J. A06039/00
the charge of the court was incorrect with respect to critical aspects of the
case? We vacate the judgment and remand for a new trial.
Appellant, Monali Phatak, avers that she sustained personal injury in
August 1993, while at work, when a chair in which she was sitting tipped
forward causing her to fall from the chair. The chair, manufactured by
Appellee, was a "standard secretarial chair," with four legs/outriggers
emanating from a central spindle. The accident occurred while Ms. Phatak
was leaning forward attempting to pick up a pen that she had dropped on
the floor. At trial, Appellants averred that the chair was defectively designed
in that the legs/outriggers did not extend all the way out to the end of the
seat of the chair. This design, according to Appellants, made the chair
unstable and prone to tipping over but could have been easily remedied by
merely extending the legs a few inches so that they extended past the edge
of the seat. Appellee introduced evidence that Appellant had been sitting
with her legs wrapped around the base or outriggers and argued that this
"misuse" of the chair was the reason the chair tipped and she fell from it.
At trial, in support of their legal theory, Appellants attempted to
introduce evidence that Appellee manufactured chairs which contained the
exact design feature that they assert would have rendered the chair in
question "safe." However, they were prevented from doing so. After the
close of evidence the jury found, by special interrogatory, that the chair was
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J. A06039/00
not defective. Thus, judgment was entered for Appellee. Appellants filed
post-trial motions for new trial, but were denied relief. This appeal followed.
Appellants first assert that the Court erred in refusing to allow them
to introduce, for any reason, evidence that Appellee currently designed and
marketed models of chairs that lacked the alleged design defect that
Appellants assert the chair in question possessed. We agree.
With respect to the grant or refusal to grant a new trial upon
allegations of error in the admissibility of evidence we have stated:
Decisions regarding the admissibility of evidence are within the
discretion of the trial court and will be reversed on appeal only if
the trial court abused its discretion or committed an error of law.
... We will grant a request for a new trial based upon a trial
court's evidentiary rulings only if those rulings not only are
erroneous, but also are harmful to the complaining party. ...
Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make the fact at issue more or less
probable, or supports a reasonable inference or presumption
about the existence of a material fact.
(Citations omitted).
Southard v. Temple University Hospital, 731 A.2d 603, 615 (Pa. Super.
Reduced to its bare essence, Appellants' theory of liability was that the
chair Appellant was seated on, and from which she fell, featured a defective
design in that the chair overhung the legs or "outriggers" creating an
increased potential for tipping over. The chair in which Appellant was seated
featured legs that stopped a few inches short of the perimeter of the chair.
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J. A06039/00
They alleged that a chair design that featured longer legs/outriggers would
have had more stability and been less prone to tipping when there was a
weight shift away from the center of the chair. In fact, Appellee
manufactured other chair models where the legs/outriggers extended to the
perimeter of the chair. Appellants attempted, in two specific contexts, to
introduce evidence that Appellee manufactured other chairs with the design
feature they argue made the chair safer, and were foiled in each attempt.
The first attempt occurred while Appellants' expert was describing the
alleged defect and the "simple and direct" method for remedying the defect.
Appellants' counsel desired to have the expert identify a chair in the
courtroom with a similar design to illustrate what he was talking about. This
chair happened to be a Model S-11 chair manufactured by Appellee. The
Court sustained a defense objection to the identification.
The second attempt came after Appellee's expert witness asserted that
extending the outriggers would have created an "unbelievable" and
"unacceptable" safety/tripping hazard to people walking by, or around, the
chair. After Appellee's expert made these assertions, Appellants' counsel
attempted to cross-examine him by utilizing Appellee's 1997 catalog which
featured chairs with the design feature Appellee's expert had indicated would
provide an "unbelievable" and "unacceptable" hazard. However, Appellants
were thwarted in their attempts at this cross-examination and in their
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J. A06039/00
attempts to question Appellee's corporate representative on rebuttal as to
this matter.
The attempts to introduce evidence that Appellee manufactured chairs
with outriggers extending past the perimeter of the chair implicates at least
four admissibility/evidentiary issues, evidence by demonstration, evidence of
an alternative design, evidence of a subsequent design change/remedial
measure and rebuttal/impeachment. Since Appellants' counsel was
essentially prevented from arguing the basis for which he wished to
introduce the evidence,1 we must consider all the bases for admission
argued on appeal.2
10 Citing to Mendralla v. Weaver Corp., 703 A.2d 480 (Pa. Super.
1997), Appellants assert that they should have been allowed to refer to
other chairs manufactured by Appellee to demonstrate the "feasibility" of
producing a chair with the design feature they proffered. We agree.
Mendralla clearly states that evidence of a subsequent design change is
probative of the feasibility of an alternate design. Id., 703 A.2d at 484, n.

1 When Appellants' counsel began to ask the expert witness whether there
were any chairs in the courtroom that featured the design he had been
discussing, Appellee's counsel quickly objected and the objection was,
likewise, rather promptly sustained. Appellants' counsel then requested a
sidebar discussion but the request was denied.
2 Obviously, rebuttal was not implicated in Appellants' attempt to refer to the
chair during direct examination of their expert witness.
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J. A06039/00
2.3 As such, based upon this reason alone, the evidence should have been

3 We acknowledge that there appears to be at least confusion, if not outright
conflict, in our caselaw on this matter, or at least the appearance of such.
See, comment, Pa.R.E 407.
Connelly v. Roper Corp., 590 A.2d 11 (Pa. Super. 1991), indicates that
subsequent design changes are not admissible to prove defective design
because what is at issue is the design at the time the subject product was
manufactured. Connelly, however, would seemingly allow evidence of other
design alternatives that existed at the time the subject product was
manufactured as would Gottfried v. American Can Co., 489 A.2d 222 (Pa.
Super 1985), which also concluded that subsequent safety features were
irrelevant to the safety of a product manufactured previously.
Duchess v. Langston Corp., 709 A.2d 410 (Pa. Super. 1998), appeal
granted, in part, 729 A.2d 69 (Pa. 1999), seemingly departed from
Connelly and
Gottfried, by allowing a subsequent design
change/improvement to be introduced to prove a design defect. The
Duchess panel justified this decision by noting that the type of device at
issue, the interlock, was widely used at the time the machine in question
was manufactured. The Duchess court also justified its decision by arguing
that it was evidence of a "subsequent repair" and fell under Matsko v.
Harley Davidson Motor Co., 473 A.2d 155 (Pa. Super. 1984). Matsko
held that evidence of a recall on a product was admissible in a strict liability
case and further held that the so-called "subsequent repair" rule should not
be applicable in a products liability case. Judge Del Sole, dissenting in
Duchess, found the majority's reliance upon Matsko "misplaced" noting
that a subsequent design change was not a "subsequent repair." Duchess,
709 A.2d at p. 416.
With respect to Mendralla, although the discussion on the matter was
sparse, Mendralla seemingly departed from Connelly and Gottfried
asserting that subsequent design changes are relevant and admissible to
demonstrate the feasibility of alternative designs. While the Court's
discussion on the matter was relegated to a footnote, its holding was quite
explicit. Since Mendralla was decided by this court sitting en banc, the
Court had the authority to modify prior precedent of the Superior Court and
it is probably best viewed as having done so in Mendralla, at least until
such time as further guidance is provided. Moreover, as a panel of the
Superior Court we are not free to ignore its holding.
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J. A06039/00
11 Also at issue is evidence of an alternative design. It would seem that
this was the primary focus of the trial court in denying Appellant an
opportunity to show or refer to another chair. This fact is evidenced by the
Court's response to the objection of Appellee's counsel. Appellee's counsel
asserted, while objecting, "what's at issue here is this chair," to which the
court replied, "right." N.T. 4/5-7/99, at p. 253. Nevertheless, it appears
that the court erred in this respect. In Gottfried v. American Can Co.,
489 A.2d 222 (Pa. Super 1985), we indicated that in a defective design case
it is relevant to show the "state of the art" in design safety at the time the
product was manufactured. Both Gottfried, and Connelly v. Roper Corp.,
590 A.2d 11 (Pa. Super. 1991), seemingly support the practice of allowing
reference to other similar products for purposes of showing alternative
design features available at the time the product in question was
manufactured.4 In other words, such evidence is allowed to show the "state

In any event, we note that the Pennsylvania Supreme Court has granted
allowance of appeal in Duchess limited to the following issue: "Did the
Superior Court err in reversing judgment in favor of Petitioner finding that
evidence of a subsequent design change was admissible as a subsequent
repair as opposed to a subsequent remedial measure?" Consequently,
more definitive guidance may be provided by that court in due time.
4 In Gottfried, which involved injury occurring when opening a can of nuts,
we noted that the Appellant there had been permitted to show cans
manufactured by others at the time the subject can had been made. In
Connelly, which involved injury caused by a snowblower, the Appellants
were permitted to introduce evidence that certain design features they
- -

J. A06039/00
of the art" of safety design at the time in question. Consistent with this
principle there would seem to be no impediment to including other products
of the defendant manufacturer if they otherwise fell within the ambit of this
12 Also with respect to this issue of admissibility of the subject evidence,
Appellants lastly assert that they should have been allowed to cross-examine
Appellee's expert and/or enter other evidence that Appellee manufactured
chairs in which the legs extended past the perimeter of the chair after
Appellee's expert asserted that doing so would have created an
"unbelievable" and "unacceptable" hazard. We agree with this contention as
13 In the case of Spino v. John S. Tilley Ladder Co., 696 A.2d 1169,
1172 (Pa. 1997), our Supreme Court indicated the proper focus of a litigant
in a products liability case:
It is well established that the concept of strict liability
allows a plaintiff to recover where a product in "a defective
condition unreasonably dangerous to the consumer or
user" causes harm to the plaintiff. ... Pennsylvania law
requires that a plaintiff prove two elements in a products
liability action: that the product was defective, and that

asserted should have been incorporated were available at the time the unit
was manufactured.
5 Although Appellee evidently manufactured a chair with outriggers
extending past the perimeter of the chair, it is unclear from the record
whether Appellee did so at the time the chair involved in the accident here
was manufactured or at some later time.
- -

J. A06039/00
the defect was a substantial factor in causing the injury. ...
Specifically, in a design defect case, the question is
whether the product should have been designed more
(Citations omitted).
Appellee defended the design of its chair by arguing that not only was it
"safe" as designed, but that incorporating the design Appellants proffered
would have created a substantial hazard to other workers. There can be no
question that terms such as "safeness" and "defective" are terms of art
subject to relative meaning. As our Supreme Court stated in Spino, "the
question is whether the product could have been designed more safely."
This passage suggests an analysis of relativity. A manufacturer could build
automobiles to more closely resemble tanks. This might make them safer
but, from a societal standpoint, it is unlikely doing so would be viewed as a
valid trade-off, particularly if, in the process, other danger is created. In
Riley v. Warren Manufacturing, Inc., 688 A.2d 221 (Pa. Super. 1997),
we discussed some of the factors that go into this analysis, which had been
first introduced in the case of Dambacher by Dambacher v. Mallis, 485
A.2d 408 (Pa. Super. 1984). We mentioned:
The gravity of the danger posed by the challenged design;
the likelihood that such danger would occur; the
mechanical feasibility of a safer design; and the adverse
consequences to the product and to the consumer that
would result from a safer design. ... The Court also cited to
additional factors, which included:
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J. A06039/00
(1) The usefulness and desirability of the product - its
utility to the user and to the public as a whole.
(2) The safety aspects of a product - the likelihood that it
will cause injury, and the probable seriousness of the
(3) The availability of a substitute product which would
meet the same need and not be as unsafe;
(4) The manufacturer's ability to eliminate the unsafe
character of the product without impairing its usefulness or
making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of
care in the use of the product.
(6) The user's anticipated awareness of the dangers
inherent in the product and their avoidability, because of
general public knowledge of the obvious condition of the
product, or of the existence of suitable warnings or
(7) The feasibility on the part of the manufacturer, of
spreading the loss of setting the price of the product or
carrying liability insurance.
These additional factors were derived from an article by
Dean John Wade of Vanderbilt University, "On the Nature
of Strict Tort Liability for Products," 44 Miss.L.J. 825, 837-
38 (1973).
(Citations omitted).
Thus in determining whether the design of a product is "defective" or
"unreasonably dangerous," or whether a product could have been designed
"more safely," many factors could seemingly be weighed by the jury in
reaching the ultimate conclusion whether a product was defective or not.
14 The question before us, as we see it, is whether an assertion that a
design change would make a product "unbelievably hazardous" to other
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J. A06039/00
persons enters into the equation of whether the product is "defective" for
products liability purposes. We think the answer is yes. Accordingly, by
interjecting this factor into the equation in the present case Appellee
"opened the door" and its assertion should have been open to rebuttal,
including the introduction of evidence that Appellee, itself, utilized this
design feature in certain of its chairs.
15 Among the factors quoted above for determining whether a product is
"defective" is "the adverse consequences to the product and to the consumer
that would result from a safer design." This factor would seemingly
implicate the contention made here. If, in fact, making the chair in question
"safer" for its occupant also created an "unbelievable hazard" to others, the
risk-utility is essentially negative. The safety utility to the occupant would
seemingly be outweighed by the extra risk created to others. The same
could be said if, as used in example above, an automobile were made to
resemble a tank. It might make its occupants safer, but if in so doing it
creates an unacceptable hazard to other motorists or pedestrians, the risk-
utility is negative and the product design feature should be thought of as a
negative, not a positive.
16 Similarly, one of the "additional factors," quoted above, also supports
this analysis. One of the "additional factors" reads "the usefulness and
desirability of the product - its utility to the user and to the public as a
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J. A06039/00
whole." If, as Appellee contended, extending the outriggers would have
created an "unbelievable tripping hazard" to others, its overall "usefulness,"
"desirability" and "utility" would be adversely affected. Thus, Appellee's
contention must be thought of as having had a bearing on the determination
of whether the chair was defectively designed.
17 In a similar context we indicated that a defendant's expert's testimony
suggesting that introducing a specific design feature would have been
impractical opened the door to evidence that the design was practical. This
included the introduction of evidence that the same manufacturer had later
incorporated the exact design feature in question. The case making this
holding was the above-discussed Duchess v. Langston Corp., 709 A.2d
410 (Pa. Super. 1998), and the design feature in question was an interlock
18 Duchess involved a plaintiff who sustained injury to his hand,
including the loss of fingers, when his hand was grabbed by moving rollers in
a box-making machine. The theory of products liability was that the
machine was defectively designed because it did not have an interlock
(cutoff) device that would have shut down the rollers when an ink shield had
been removed. The defendant's expert had testified in a manner that this
Court characterized as questioning the practicality of installing an interlock
device. Yet, the defendant had, in fact, installed an interlock device in
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J. A06039/00
subsequent versions of the machine in question. When the plaintiff
attempted to introduce evidence that the defendant had incorporated an
interlock device he was precluded from doing so. We reversed. In this
Court's opinion, the expert's testimony invited rebuttal and allowed the
introduction of the evidence.
19 In the present case the issue of the safeness of extending the
outriggers was a matter made relevant by Appellee's assertion that doing so
would create an "unbelievable hazard" to others. Since, as determined
above, the safeness of the proposed design feature was a factor that was
relevant to the determination of whether the chair was "defectively
designed," Appellants should have been allowed to introduce evidence that
Appellee manufactured other chairs incorporating this design feature. As we
stated in Duchess, "the fact that appellee's (sic) subsequently incorporated
the interlock made it more likely than not that the interlock was not
impractical. Thus, we agree with appellant's contention that once appellee's
expert questioned the practicality of the interlock, appellants should have
been permitted to show that the interlock had been incorporated on the
machine." Id., 709 A.2d at p. 415. Similarly, the fact that Appellee
extended the outriggers on certain of its other chairs certainly rebuts the
assertion that doing so creates an "unbelievable hazard" to other workers.
Thus, Appellants should have been permitted to introduce that evidence.
- -

J. A06039/00
20 Both Appellee and amicus, Pennsylvania Defense Institute (PDI),
address the applicability of Duchess, but neither adequately refutes the
premise above. The entire discussion of Duchess in amicus' brief relates to
the issue of a remedial measure/design change. While this discussion had
relevance to the matters discussed in the first part of the opinion, PDI's brief
does not discuss the opening of the door and rebuttal aspects of Duchess.
21 In contrast, Appellee's brief does address the rebuttal aspect of
Duchess briefly, but simply argues that Appellee's expert here did not
discuss practicality. While this is true, in our opinion the premise of
Duchess does not hinge solely upon the introduction of a
practicality/feasibility issue. Any matter relevant to the design defect
determination interjected by a defendant would also implicate the holding of
Duchess. The essence of the Duchess holding as to the cross-
examination/rebuttal matter was that the defendant made an assertion that
related to the design defect determination thereby allowing the plaintiff to
rebut the assertion. Moreover, in Duchess the assertion, in essence,
discredited the design feature proffered by the plaintiff, which entitled the
plaintiff to show that the defendant had indeed incorporated the design
discredited by the expert. Here, Appellee's expert discredited the proposed
design by suggesting it would create an "unbelievable hazard." Thus,
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J. A06039/00
Appellants were entitled to show that Appellee in fact incorporated this
design feature in some of its chairs.
22 For the various reasons discussed above, we conclude that the Court
erred in preventing reference to other chairs manufactured by Appellee that
featured the design feature in question. Furthermore, like the Duchess
court, we believe this error requires the granting of a new trial.
Consequently, we shall grant Appellants a new trial.
23 Our decision to vacate and remand is premised entirely upon the
analysis set forth above. Since none of the issues raised by Appellants will
provide greater relief than that already granted we express no opinion as to
the merits of the other issues raised by Appellants. For the reasons detailed
above, we must vacate the judgment appealed from and remand for a new
24 Judgment vacated. Remanded for a new trial. Jurisdiction
25 ORIE MELVIN, J., files a Concurring Opinion. MUSMANNO, J., joins
both this Opinion by Brosky, J. and the Concurring Opinion by Orie Melvin, J.
- -

J. A06039/00




: No. 2727 EDA 99
Appeal from the Judgment Entered November 16, 1999,
In the Court of Common Pleas, Montgomery County,
Civil Division, at No. 95-16802.
While I concur with the Majority's resolution of the first issue raised in
this appeal, I write separately to address the issue regarding the
introduction of misuse evidence, as it will invariably arise upon retrial.
In a products liability action a plaintiff must prove: (1) the product was
defective and (2) the defect was a substantial factor in causing the injury.
Charlton v. Toyota Industrial Equipment, 714 A.2d 1043, 1046 (Pa.
Super. 1998). Our Supreme Court has refused to permit the introduction of
negligence concepts in a strict products liability action. Kimco
Development v. Michael D's Carpet, 536 Pa. 1, 7-9, 637 A.2d 603, 606-
607 (1993); Jara v. Rexworks Inc., 718 A.2d 788, 793 (Pa. Super. 1998),

J. A06039/00
appeal denied, 558 Pa. 620, 737 A.2d 743 (1999). However, a plaintiff's use
of a product is relevant as it relates to causation. Childers v. Power Line
Equipment Rentals, 681 A.2d 201, 207 (Pa. Super. 1996), appeal denied,
547 Pa. 735, 690 A.2d 236 (1997). Specifically, a defendant may introduce
evidence a plaintiff voluntarily assumed the risk or misused the product. Id.;
Robinson v. B.F. Goodrich Tire Co., 664 A.2d 616 (Pa. Super. 1995),
appeal denied, 543 Pa. 694, 670 A.2d 142 (1996). In addition, a defendant
may introduce evidence the plaintiff engaged in reckless conduct to defeat a
products liability claim. Madonna v. Harley Davidson Inc., 708 A.2d 507
(Pa. Super. 1998). In asserting a misuse defense the defendant must
establish the use of the product employed by the plaintiff was unforeseeable
or outrageous. Childers, 681 A.2d at 207.
In the instant case, the trial court permitted the Appellee to assert a
misuse defense to establish Appellant's conduct was the sole cause of her
injury and was not related in any way to a product defect. I find the trial
court's ruling resulted in the misapplication of the misuse defense, where
here, the evidence did not establish the Appellant used the product in an
unforeseeable and outrageous manner.
The evidence adduced at trial reveals the Appellant was sitting on the
front portion of her chair with her legs wrapped around the base or spindle
of the chair when she reached down to retrieve a pen. Although the
- 17 -

J. A06039/00
Appellant did not have her feet placed directly on the floor in front of her, it
strains credulity to conclude that at the time of the incident the Appellant
was using the chair for something other than its intended purpose, which is
sitting. Contributory negligence of a consumer is not a defense in a products
liability case nor can it be interpreted at trial. The fact finder cannot
compare the negligence of the user with the strict liability of the
manufacturer and thus, under the facts of this case, the Appellant's conduct
was not an unreasonable misuse of the chair. I recognize the issue of
whether conduct involved in misuse is foreseeable is generally a question for
the jury. Dougherty v. Edward J. Meloney, Inc., 661 A.2d 375, 386 (Pa.
Super. 1995), appeal denied, 544 Pa. 608, 674 A.2d 1072 (1996). However,
I believe the trial court herein should have precluded this particular evidence
of misuse because no two reasonable minds could fail to agree that the
Appellant's use of the product in question was clearly proper and
foreseeable. See Kramer v. Raymond Corporation, 840 F. Supp. 333
(E.D. Pa. 1993) (holding evidence of plaintiff's alleged misuse for failing to
look in direction of travel and keep foot inside operating compartment of
forklift properly precluded when conduct could not be described as
- 18 -

J. A06039/00
Accordingly, I believe, where as here, the alleged "misuse" is clearly
and reasonably foreseeable and not outrageous, the trial court should have
precluded its admission into evidence as a matter of law.
MUSMANNO, J., joins both Concurring Opinion by Orie Melvin, J. and
Opinion by Brosky, J.
- 19 -

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