Lehmann v. Louisville Ladder Inc.

610 F.Supp.3d 667

Stephen LEHMANN

v.LOUISVILLE LADDER INC.

CIVIL ACTION NO. 21-4626

United States District Court, E.D. Pennsylvania.

Signed July 6, 2022

Jeffrey F. Laffey, Griffin Remick, Michael Stewart Ryan, Laffey Bucci & Kent LLP, Philadelphia, PA, for Stephen Lehmann.

Michael J. Boccella, Philadelphia, PA, John Michael Kunsch, Sweeney & Sheehan, Philadelphia, PA, for Louisville Ladder Inc.

MEMORANDUM

KEARNEY, District Judge Stephen Lehmann fell through a mobile scaffold while installing drywall in an office. He allegedly suffered injuries which he attributes to the defective design of the mobile scaffold and the scaffold manufacturer's failure to warn about the latch pins on the sides of the scaffold securing the platform. He claims the scaffold's defective design or the manufacturer's failure to warn caused him injury warranting damages.

Mr. Lehmann and the scaffold manufacturer Louisville Ladder Inc. each move to preclude identified trial evidence. The parties present different views on developing authority on whether the manufacturer can show industry standards evidence. The parties also seek to preclude evidence of: competitors selling differently designed scaffolds, non-compliance with an ethical standard known as the "hierarchy of safety," Mr. Lehmann's conduct assembling the scaffold shortly before the accident, other accidents involving mobile scaffolds, and the alleged non-existence of accidents with this scaffold. We carefully studied the extensive briefing. We today find Louisville Ladder may introduce the competitor products survey. We find evidence of Mr. Lehmann's pre-accident conduct is admissible only for purposes of his failure-to-warn theory of liability. Mr. Lehmann may introduce evidence of competitors selling differently designed scaffolds. We preclude the evidence on the presence or absence of other accidents, a "hierarchy of safety" ethics standard, and Mr. Lehmann's alleged negligent conduct in assembling the scaffold shortly before the accident for purposes of his design defect claim.

I. Background

Stephen Lehmann fell through a defective baker scaffold manufactured by Louisville Ladder while installing drywall framing on the ninth floor of a Philadelphia construction site.¹ A "baker scaffold" is a platform affixed between two end frames which look like miniature ladders:²

The user of an ST0606A scaffold can adjust the height platform in two-inch increments by dislodging spring pins in the side frame of the scaffold, moving the platform as desired, then relodging the pins into holes along the side frames.³ The user can then lock the platform into the desired position by rotating latch pins on opposite sides of the platform into place.⁴

Mr. Lehmann stood on Louisville Ladder's model ST06006A scaffold while installing drywall.⁵ Mr. Lehmann alleges the latch pins became dislodged while he stood on it.⁶ He alleges the platform then became dislodged from the side frames, causing it to fall to the ground.⁷ Mr. Lehmann alleges he fractured his calcaneus and his tissue swelled over his left ankle, requiring surgery and other medical procedures.⁸

Mr. Lehmann sues Louisville Ladder for strict products liability.⁹ Mr. Lehmann claims defective design, failure-to-warn, and manufacturing defect theories.¹⁰ Mr. Lehmann argues the ST0606A scaffold is defective under a design defect theory because the scaffold's latch pins "can and do rotate to the point where they are useless during foreseeable use of the scaffold."¹¹ Mr. Lehmann argues Louisville Ladder failed to warn the scaffold's users about the product's dangers, "including the fact that the platform latch pins can rotate out of position during foreseeable use."¹² Mr. Lehmann argues the accident would not have occurred had Louisville Ladder warned users to check the latch pins before each use.¹³ Mr. Lehmann does not explain his manufacturing defect theory and we are proceeding on a design defect and failure-to-warn analysis today.

II. Analysis

Mr. Lehmann and Louisville Ladder each move in limine to preclude three pieces of evidence. Mr. Lehmann asks we exclude evidence of: the scaffold's compliance with industry standards, his own conduct shortly before the fall as evidence of his negligence, and the absence of earlier accidents involving the scaffold.¹⁴ Louisville Ladder asks we exclude evidence of: the scaffold's purported non-compliance with the "hierarchy of safety," Louisville Ladder's competitors selling differently designed scaffolds, and other accidents involving baker scaffolds.¹⁵

We begin with relevant strict liability principles. Pennsylvania follows section 402A of the Second Restatement of Torts.¹⁶ Mr. Lehmann must prove Louisville Ladder's scaffold "was defective, the defect existed when it left the defendant's hands, and the defect caused the harm."¹⁷ Mr. Lehmann may prove the scaffold's defective condition by satisfying one of two tests under Pennsylvania law: the consumer expectations test or the risk-utility test.¹⁸ A product fails the consumer expectations test if Mr. Lehmann proves "the danger is unknowable and unacceptable to the average or ordinary consumer."¹⁹ A product fails the risk-utility test if "a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions."²⁰

We then apply these principles to the challenged evidence. First, we admit evidence of a competitor products survey which Louisville Ladder argues demonstrates the scaffold's compliance with industry standards. Second, we admit evidence of Mr. Lehmann's conduct shortly before the fall (what Louisville Ladder may characterize as his negligence) for the limited purpose of his failure-to-warn theory of strict liability but not for his design defect theories. Third, we admit evidence Louisville Ladder's competitors sold differently designed scaffolds. Fourth, we exclude evidence of the scaffold's non-compliance with the "hierarchy of safety." Fifth, we exclude evidence of previous accidents involving the same or similar scaffolds because Mr. Lehmann does not establish the appropriate foundation. Sixth, we exclude evidence of the absence of earlier accidents involving the same scaffold because Louisville Ladder does not establish the appropriate foundation.

A. We admit evidence of the scaffold's compliance with industry standards.

Louisville Ladder proffers a "competitor products survey" which analyzes scaffolds similar to its ST0606A scaffold, the weight they can bear, their component parts, and their prices.²¹ Mr. Lehmann moves to exclude the evidence arguing this type of industry standards evidence is not relevant to a products liability claim.²² "Industry standards" evidence is, as the name suggests, evidence showing what standards manufacturers in the subject industry follow.²³ The parties agree the competitor product survey constitutes industry standards evidence, but they disagree as to its relevance. Louisville Ladder argues the Pennsylvania Supreme Court recognized the relevance of industry standards evidence eight years ago in Tincher v. Omega Flex, Inc.²⁴ Mr. Lehmann argues we should instead follow the 2021 Pennsylvania Superior Court's holding in Sullivan v. Werner Co.²⁵ barring industry standards evidence in another strict liability case involving a fall from a scaffold. But the Superior Court will not have the final word as the Pennsylvania Supreme Court recently exercised its discretion to accept an appeal of this evidentiary decision and the parties are briefing these issues this summer.²⁶ Our analysis of the precedent firmly persuades us to admit this type of competitor products survey evidence relevant to the risk-utility test established by the Pennsylvania Supreme Court in Tincher .

Our analysis entails four parts. First, we explain the uncertain status of admitting industry standards evidence under Pennsylvania law. Second, we explain the Federal Rules of Evidence control our analysis, but still require us to predict whether the Pennsylvania Supreme Court will overrule its bar on industry standards evidence. Third, we predict the Pennsylvania Supreme Court will overrule its categorical bar on industry standards evidence. Fourth, we explain the relevance of the proffered industry standards evidence in Mr. Lehmann's strict liability claim.

1. The admissibility of industry standards evidence remains unclear in Pennsylvania.

The admissibility of "industry standards" evidence has followed a "long and winding road" through Pennsylvania's state and federal courts.²⁷ We must briefly detail this road before explaining why we find the evidence admissible. Four Pennsylvania cases provide guideposts along the road: Azzarello v. Black Bros. Co., Inc. ; Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc. ; Tincher v. Omega Flex, Inc. ; and Sullivan v. Werner Co.

i. Azzarello v. Black Bros. Co., Inc.

Pennsylvania courts once followed an "idiosyncratic, ‘super’ strict liability approach"²⁸ to products liability created by the Pennsylvania Supreme Court's 1978 case Azzarello v. Black Bros. Co., Inc.²⁹ interpreting section 402A of the Second Restatement. The Pennsylvania Supreme Court in Azzarello "created a distinct divide between strict liability and negligence claims, by suggesting that negligence concepts have no place in Pennsylvania strict liability doctrine."³⁰ The Pennsylvania Supreme Court held "the jury may find a defect where 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."³¹ But the jury could not consider negligence principles in making its findings. The Pennsylvania Supreme Court in Azzarello barred using "the term ‘unreasonably dangerous’ " in jury instructions of strict products liability cases because the term "mislead[s]" juries into thinking negligence governs strict liability cases.³² As the Supreme Court later found, Azzarel...