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A new trial has been ordered in a products liability suit because the defense lawyers were improperly permitted to present evidence of the “absence of prior accidents” with a piece of factory equipment. “The absence of prior accidents may simply mean that the plaintiff was the first to be injured; there is always a first victim,” U.S. Circuit Judge D. Brooks Smith wrote in the 44-page opinion in Forrest v. Beloit Corp. The 3rd Circuit’s decision revives a suit brought by a paper mill worker whose arm became stuck between two multi-ton rollers, requiring partial amputations of his left arm and right leg. Under Pennsylvania law, Smith found, courts have recognized that there is a “heightened risk that testimony concerning the alleged absence of prior accidents may confuse or mislead the jury.” Applying the Federal Rules of Evidence, Smith found that while testimony about the absence of prior accidents will often satisfy Rule 402′s relevancy requirement, it must also be “carefully balanced” under Rule 403 to avoid unfair prejudice to the plaintiff. In doing so, Smith said, trial judges must insist on a strong “foundation” before allowing a jury to hear any such evidence. “Most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred,” Smith wrote. Smith concluded that U.S. District Judge Bruce W. Kauffman erred by allowing testimony of the absence of prior accidents in Paul Forrest’s lawsuit against Beloit because the witnesses were Forrest’s co-workers who had knowledge of only one such machine being accident-free. Beloit has manufactured many such machines, Smith noted, and “admits that it has compiled no information concerning the safety history” of them. As a result, Smith found that it was “prejudicial error” for Kauffman to permit the defense lawyers to “extract anecdotal testimony” about a single machine and then use that testimony as support for a closing argument in which a defense lawyer told the jury that “the only accident we know of in 36 years … was Mr. Forrest’s.” The ruling is a victory for attorney Joseph R. Viola, who contended in the suit that Forrest’s injuries resulted from defects in a massive Beloit machine at the Jefferson-Smurfit paper mill known as a “gloss calender.” According to court papers, Forrest, a Jefferson-Smurfit employee, was trying to clear a paper jam in a 100-yard line of machines that transform wood pulp slurry into large rolls of dry paper. At the dry end of the line, the paper is run through two sets of calenders, or “dry stacks,” which are large rotating rollers that feed the gloss calender. As the paper is propelled from the dry stacks towards the gloss calender, it first passes under an “air shower” and then over a lead-in roller. The gloss calender is an additional set of multi-ton rollers, consisting of a top roll, called the “gloss roll” and a lower roll called the “pressure roll.” Testimony at trial showed that Beloit’s original design called for the opening between the two rolls to be about 8 feet off of the floor. A Beloit’s engineer testified that the machine was originally designed to be threaded with the user standing on the floor. But testimony from Jefferson-Smurfit employees showed that a different procedure was employed during paper breaks. Employees said a worker would climb a set of steps near one of the dry stacks, and would lean over the air shower and manually feed the paper through the gloss calender rolls to an employee waiting on the other side. Forrest testified that he was following that procedure on Nov. 30, 1999, and that, as he was attempting to feed the paper, his hand got pulled into the rollers. Other witnesses said that when Forrest’s arm was caught between the two gloss calender rollers, the entire paper production line was shut down. After he was extricated by fire department workers, Forrest required amputation of his left arm above the elbow and his right leg below the knee. After a three-week trial that ended in February 2004, a jury returned a defense verdict. Answering a series of questions, the jury concluded that the gloss calender manufactured by Beloit was not defectively designed in 1963; that Beloit was not negligent in its design, manufacture, or sale of the machine; that Forrest’s employer, Jefferson-Smurfit, had taken “intervening actions” that actively operated to cause Forrest’s accident; and that those actions were “so extraordinary they could not reasonably have been foreseen by Beloit.” On appeal, Viola raised numerous issues — including allegations that defense lawyers had improperly struck African-Americans from the jury. Now the 3rd Circuit has rejected nearly all of Viola’s arguments, but agreed with his complaint that Kauffman never should have allowed Jefferson-Smurfit employees to testify about the absence of prior accidents. Viola complained that, over his objection, the defense lawyers introduced the evidence of no prior accidents through cross-examination of two Jefferson-Smurfit employees who had worked at the paper mill for 17 and 35 years respectively. Both testified that the way Forrest attempted to thread the machine was the same as that used for years by other workers, and that they were unaware of any prior similar accidents. In a pretrial motion, Viola had argued that there was no foundation for such testimony because a Beloit engineer had admitted in his deposition that Beloit kept no records relating to either safety complaints by Beloit customers or past accidents involving its gloss calenders. Now Smith, in an opinion joined by Senior U.S. Circuit Judge Max Rosenn, has ruled that Viola’s motion to prohibit the testimony should have been granted. “The importance of the foundation requirement is underscored by the potential for unfair prejudice that may result from such evidence,” Smith wrote. Smith found that the Supreme Court of Arizona’s 1985 opinion in Jones v. Pak-Mor Manufacturing Co. thoroughly summarized the concerns at issue when a defendant in a products liability case wants to present evidence of the absence of prior accidents. “First, the mere fact that a witness does not know of any prior accidents does not prove that no such accidents occurred,” Smith wrote, citing Jones. “Second, generalized assertions concerning an alleged absence of accidents over an extended period of time can be directly rebutted only with specific evidence of prior occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases where the defendant has not kept records concerning the safety history of its products.” The Jones court also noted that the plaintiff may simply be the “first victim,” Smith noted, and that testimony about the absence of prior accidents “does not tell us how many near-accidents, nor how many fortuitous escapes from injury, may have occurred.” Under Pennsylvania law, Smith said, a product is deemed defective if it “left the supplier’s control lacking any element necessary to make it safe for its intended use.” Pennsylvania law also requires the trial judge to perform a “risk-utility analysis” on the issue of whether a product is “unreasonably dangerous.” As a result, Smith said, in cases where the plaintiff “has surmounted this initial hurdle” and the case has reached the jury, the jury’s focus is on the product and “specifically on whether the product as designed presents a potential danger to the intended user.” The nature of that inquiry by the jury, Smith said, “is such that evidence of near misses or fortuitous escapes would be highly probative of the existence of a danger, and thus of the existence of a defect.” But such evidence, Smith said, “is by definition extremely difficult to obtain, if for no other reason than that a user who has fortuitously escaped injury may not even recognize that he was exposed to danger in the first place.” Therefore, Smith said, “permitting a product liability defendant to introduce testimony concerning an alleged absence of prior accidents may thus create a misleading impression as to whether a defect exists, due to the potential inaccessibility of contrary probative evidence that would cast doubt upon the product’s safety.” Smith also found that such evidence may “divert the jury’s focus onto a balancing of the product’s proven costs vis-�-vis its proven benefits, notwithstanding that this issue will already have been resolved in the plaintiff’s favor by the trial judge’s earlier risk-utility analysis.” In a brief concurring opinion, U.S. Circuit Judge Samuel A. Alito Jr. said he agreed that evidence of the absence of prior accidents should not have been admitted, but that he thought the question should have been decided on state law grounds and not under the Federal Rules of Evidence. Alito said he also thought that the plaintiffs lawyer had restricted his arguments to state law, and that “therefore I am doubtful that an argument based on Rule 403 of the Federal Rules of Evidence is properly before us.” But Alito also said that “because I see no conflict between state and federal law on the point in question, I would follow the path we took in Schulz v. Celotex Corp. � and I would refrain from deciding which law applies.” Beloit was represented in the appeal by attorneys Barbara S. Magen of Post & Schell, and John J. Snyder of Rawle & Henderson.

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