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Even minimal evidence of the existence of a safer alternative design for an allegedly defective product is enough to get a plaintiff’s case to a jury, the Pennsylvania Superior Court has said in a memorandum opinion. The court relied very heavily on Philadelphia Common Pleas Court Judge Howland W. Abramson’s decision in Marinari v. Manitowoc Cranes Inc. Abramson had found that even though the plaintiff’s evidence on the issue was not very strong, it met the standards of Pennsylvania law. Plaintiff Anthony Marinari suffered serious permanent injuries to his left hand, arm and shoulder when a seven-ton drill attached to a crane hit him while he was on the job. At the time of the accident, the crane operator disengaged the brake on the crane’s swing gearing, which he was required to do, in order to switch the crane from swing to boom function. Once the brake was disengaged, the opinion said, the only way to stop the crane from rotating under certain conditions, like wind or uneven terrain, was to engage a separate house lock. Marinari had approached the crane to adjust the drill, but when he saw it was moving out of control, he backed away from it. However, the drill came at him and crushed him against a wall. Marinari and his wife sued Manitowoc Cranes Inc., the manufacturer of the Model 4500 crane, under a theory of strict products liability. After a three-day trial, a Philadelphia jury awarded Marinari $1.5 million and his wife $250,000, for her loss of consortium claim. The trial court molded the verdict to include delay damages in the amount of $182,731. The trial court denied Manitowoc’s post-trial motions, and the manufacturer appealed. Manitowoc argued Marinari did not establish a prima facie case of a design defect because he did not present evidence of a safer alternative design. In order to establish a claim for a design defect, a plaintiff must prove the product was in a defective dangerous condition to the user at the time it left the manufacturer, and that the defect was the proximate cause of the plaintiff’s injuries. Once the trial court determines a jury could find a design defect, the jury must then decide whether the “product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use,” the opinion said. The court reviewed the testimony from Marinari’s expert, Matthew J. Burkhart, regarding the feasibility of a safer alternative design and a slew of case law on the issue, concluding the trial judge’s analysis was on the mark. The opinion quoted heavily Abramson’s decision. Abramson surveyed several opinions in which appellate courts found adequate evidence was presented when a plaintiff offered “some” evidence of a safer alternative design, and that “specifics were not required.” For example, in DiFrancesco v. Excam Inc., a 1994 Superior Court case, the court said the plaintiff was not required to provide specifications and plans for safer designs of an allegedly defective pistol. And in Burch v. Sears, a 1983 case, the Superior Court said a jury could find that the lack of a switch that would automatically turn off a lawnmower made the product unsafe, even though the defense claimed such a switch would interfere with the mower’s utility, making it less durable and reliable. Abramson said the case law showed that Marinari presented enough evidence to get his case to a jury. “The courts tended to hold that the case should reach the jury when there was some reference to an alternative. Here, Mr. Burkhart did not point to other cranes with similar brakes on the Model 4500 itself that could have been used in a way to make the crane safer,” Abramson said. “Mr. Burkhart testified that a constant acting brake was feasible, and that similar brakes were actually used in different locations on the very machine in question.” Abramson said that while Burkhart’s testimony might not have been as strong as that presented in the other cases he relied on, it was “sufficient” evidence. The Superior Court said Abramson’s analysis was the right one. “[Marinari's] expert did present as much evidence of ‘specifications and plans for safer designs’ as the established case law of Pennsylvania requires: the existence and use on other parts of the crane of the type of brake Mr. Burkhart proposed clearly minimized the necessity for highly detailed specifications and plans for those brakes,” the opinion said. The Superior Court panel of Judge Kate Ford Elliott and Senior Judges John G. Brosky and Phyllis W. Beck also rejected the manufacturer’s argument that Burkhart was not qualified as an expert and that his testimony was based on conjecture and speculation.

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