JOHN E. CLEVENGER; CAROL L. CLEVENGER, husband and wife v. CNH AMERICA, LLC Appeal from the United States District Court for the Middle…

Honorable Nora Barry Fischer, United States District Judge for the Western District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2872
JOHN E. CLEVENGER; CAROL L. CLEVENGER, husband and wife,
Appellants
v.
CNH AMERICA, LLC
Appeal from the United States District Court for the Middle District
of Pennsylvania
(D.C. Civil No. 1-06-cv-1006)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
May 14, 2009
Before: AMBRO and ROTH, Circuit Judges and FISCHER , District Judge*
(Opinion filed: August 13, 2009)
OPINION
FISCHER, District Judge
Plaintiffs John and Carol Clevenger appeal the District Court’s denial of their

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The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have1
jurisdiction pursuant to 28 U.S.C. § 1291.
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motion for a new trial. For the following reasons, we will affirm.
I.
Because we write for the parties, who are familiar with the facts of record, we set
forth only those facts pertinent to the resolution of the instant appeal. After Mr.1
Clevenger suffered an injury exiting a Case 85XT skid steer loader manufactured by
defendant CNH America, LLC, the Clevengers brought this lawsuit under a strict
products liability theory, alleging that the safety interlock system on the skid steer loader
was defectively designed. A jury trial was conducted over four days and a verdict was
rendered in favor of CNH, with the jury indicating on a special verdict slip that the skid
steer loader was not defective as designed. As a result, the jury did not reach a
conclusion as to other issues in the case. The Clevengers’ subsequent motion for a new
trial was denied by the District Court and this appeal followed.
II.
The Clevengers contend that the District Court committed several errors in its
instructions to the jury and evidentiary rulings. “The standard of review on a motion for a
new trial is ‘abuse of discretion unless the [district] court’s denial of the motion is based
on application of legal precept, in which case our review is plenary.” Curley v. Klem, 499
F.3d 199, 206 (3d Cir. 2007) (quoting Honeywell, Inc. v. Am. Standards Testing Bureau,

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Inc., 851 F.2d 652, 655 (3d Cir. 1988)).
III.
With respect to jury instructions, the Clevengers contend that a new trial is
warranted because the District Court’s charge (1) misdefined the concept of “intended
use” under Pennsylvania strict product liability law, (2) conflated “intended use” with
causation, (3) improperly mentioned the concept of assumption of risk, and (4)
improperly focused the jury on Mr. Clevenger’s conduct instead of CNH’s allegedly
defective product. We review jury instructions for abuse of discretion, but exercise
plenary review “when the question is whether a district court’s instructions misstated the
law.” Felix de Asencio v. Tyson Foods, Inc., 500 F.3d 361, 366 (3d Cir. 2007) (quoting
United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005)), cert. denied, 128 S. Ct. 2902
(2008). “The charge, taken as a whole and viewed in light of the evidence, must fairly
and adequately submit the issues in the case to the jury.” Tigg Corp. v. Dow Corning
Corp., 962 F.2d 1119, 1123 (3d Cir. 1992) (quoting Link v. Mercedes-Benz of N. Am., 788
F.2d 918, 920 (3d Cir. 1986)) (internal brackets omitted).
The parties agree that Pennsylvania strict products liability law governs the
substantive aspects of this dispute. To bring a successful design defect claim pursuant to
that law, a plaintiff must prove, inter alia, “that the product was defective . . . [and] the
defect was a proximate cause of the plaintiff’s injuries.” Davis v. Berwind Corp., 690
A.2d 186, 190 (Pa. 1997). A product is defectively designed when it “lack[s] any element

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necessary to make it safe for its intended use or possess[es] any feature that renders it
unsafe for the intended use.” Azzarello v. Black Bros. Co., 391 A.2d 1020, 1027 (Pa.
1978). Consequently, “there is no strict liability in Pennsylvania relative to non-intended
uses even where foreseeable by a manufacturer.” Pa. Dep’t of Gen. Servs. v. United
States Mineral Prods. Co., 898 A.2d 590, 600 (Pa. 2006).
The Clevengers assert that the District Court’s instructions to the jury misstated the
applicable law because the Court yoked the concept of “intended use” to the warnings and
instructions provided by CNH with the Case 85XT skid steer loader. We disagree.
Pennsylvania “law presumes that warnings will be obeyed.” Davis, 690 A.2d at 190. The
Clevengers were therefore required to demonstrate that the skid steer loader “would not
have been safe even if the warnings were followed.” Gigus v. Giles & Ransome, Inc.,
868 A.2d 459, 462 (Pa. Super. 2005). The District Court properly informed the jury of
this requirement.
Since the District Court correctly instructed the jury on “intended use,” the jury
was fairly and adequately informed of the concept of “defective design.” Given our
general presumption “that juries follow instructions given by the District Court,” United
States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003), and the jury’s indication on its special
verdict form that the Case 85XT skid steer loader was not defective as designed, a new
trial would not be necessary even if the remaining aspects of the charge misstated the
applicable law. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 350 (3d Cir. 1999)

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(“[w]e will not reverse a verdict on the ground that a jury instruction was erroneous if ‘it
is highly probable that the error did not contribute to the judgment’” (quoting Murray v.
United of Omaha Life Ins. Co., 145 F.3d 143, 156 (3d Cir. 1998))). Nevertheless, we
have reviewed the charge in its entirety and in light of the evidence presented at trial and
conclude that it was neither misleading nor inadequate. See Hurley v. Atl. City Police
Dep’t, 174 F.3d 95, 114-15 (3d Cir. 1999) (reversal is warranted where jury instructions
“are misleading or inadequate” (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 929
(3d Cir. 1997))).
IV.
The Clevengers also assert that the District Court committed numerous evidentiary
errors. We review determinations on the admissibility of evidence for abuse of discretion.
Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir. 2007).
First, the Clevengers argue that the District Court erred in admitting evidence of
Mr. Clevenger’s conduct at the time of the accident. Pennsylvania strict products liability
law, however, permits a defendant to introduce evidence of misuse in order to defeat
causation. Id. The District Court did not abuse its discretion in allowing the jury to
receive this evidence.
The Clevengers next allege that the District Court erred in prohibiting them from
questioning CNH’s corporate representative regarding his knowledge of the manner in
which consumers use the Case 85XT skid steer loader. This testimony was sought in

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order to demonstrate that CNH foresaw that its customers used its skid steer loader in the
manner in which Mr. Clevenger was using it when he suffered his injury. The District
Court properly prevented the Clevengers from pursuing the testimony because
“foreseeability considerations have no place in [Pennsylvania strict liability design defect
law].” United States Mineral Prods., 898 A.2d at 601.
The Clevengers further contend that the District Court erred when it permitted
CNH to admit a video in which its expert operated a Case 85XT skid steer loader. We
find that the District Court did not abuse its discretion in concluding that the probative
value of this evidence was not substantially outweighed by the specter of either unfair
prejudice to the Clevengers or misleading the jury. See United States v. Kemp, 500 F.3d
257, 295 (“a district court’s . . . discretion is construed especially broadly in the context of
[Fed. R. Evid.] 403” (quoting United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir.
2001)), cert. denied, 128 S. Ct. 1329 (2008)).
The Clevengers also assail the District Court’s decision prohibiting them from
introducing CNH’s reports of other alleged accidents involving its skid steer loaders with
circumstances similar to the accident that forms the basis of this action. They argue that
the District Court should have admitted these reports under Fed. R. Evid. 803(6). We
have examined the reports and conclude that the District Court did not abuse its discretion
in refusing to admit this hearsay evidence. See Fed. R. Evid. 803(6) (hearsay contained
within business records is subject to exclusion when “the source of information or the

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method or circumstances of preparation indicate lack of trustworthiness”); see also John
McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632, 635-36 (3d Cir. 1977) (no abuse of
discretion in excluding accident reports proffered to demonstrate design defect).
Finally, the Clevengers allege that the District Court erred when it permitted CNH
to elicit testimony regarding industry standards and practices. Under Pennsylvania law,
such evidence is inadmissible in a strict liability design defect action. Lewis v. Coffing
Hoist Div., Duff-Norton Co., 528 A.2d 590, 594 (Pa. 1989). Here, however, the
Clevengers introduced testimony regarding industry standards and practices in their case-
in-chief. The District Court did not abuse its discretion in affording CNH a rebuttal. See
Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205, 1213 (9th Cir. 2009) (“the
introduction of inadmissible evidence by one party allows an opponent, in the court’s
discretion, to introduce evidence on the same issue to rebut any false impression that
might have resulted from the earlier admission” (quoting United States v. Whitworth, 856
F.2d 1268, 1285 (9th Cir. 1988))).
V.
In sum, we conclude that the District Court did not err in its charge to the jury or
evidentiary rulings. Accordingly, we will affirm the Court’s order denying the
Clevengers’ motion for a new trial.

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