Bernard v. Grumman Allied Indus. CV-92-121-SD 08/23/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Donald J. Bernard; Nancy Bernard

v. Civil No. 92-121-SD

Grumman Allied Industries, Inc.; d/b/a Grumman Olson Corp.

O R D E R

Plaintiffs have filed a motion in limine seeking to bar

production by defendant of trial evidence which bears on the

defendant's contractual relationships with Federal Express

concerning the design and manufacture of the van, alleged defects

in which are claimed to be causative of plaintiffs' damages.

Document 57. The defendant objects. Document 58.

1. Background

Plaintiff Donald Bernard, an employee of Federal Express,

claims he sustained personal injuries as a result of the

defectively designed and unreasonably dangerous van he was

operating in the course of his employment. These injuries

allegedly occurred when plaintiff, attempting entry of the van,

struck his knee against a steering post. Plaintiff's specific claims are that the van lacked a proper hand-hold for the driver

to enter the vehicle and that there were deficiencies in the

entryway to the driver's side of the vehicle.

Discovery to date has apparently revealed that Federal

Express specified the type and location of hand-holds for the

van, as well as the use of a sliding door. Defendant Grumman

Allied Industries, Inc., d/b/a Grumman Olson Corporation

(Grumman), intends to make use of such evidence in support of its

theories of defense. Plaintiffs contend admissibility of such

evidence is not permissible in a case where, as here, the right

to recovery is grounded solely on a theory of "strict liability".

2. Discussion

Plaintiffs posit that, under the applicable law of New

Hampshire,1 fault is irrelevant in a "strict liability" case.

Citing, inter alia, cases decided under the laws of Texas,

Challoner v. Day & Zimmerman, Inc.,

(5th Cir.),

vacated and remanded on other grounds,

(1975); New

Jersey, Michalko v. Cooke Color & Chem. Corp.,

,

(1982); California, Brocklesbv v. United States, 767

1A federal court sitting in diversity must apply the substantive law of the state in which it sits. See Klaxon v. Stentor Elec. Mfg. Co.,

(1941); Mottolo v. Firemen's Fund Ins. Co.,

, 726 & n.l (1st Cir. 1995).

(9th Cir. 1985), cert, denied,

(1986);

and Hawaii, Jenkins v. Whittaker Corp.,

(D. Haw.

1982), aff'd in part, rev'd in part,

(9th Cir.

1986),2 plaintiffs claim that whatever its viability in cases

grounded on negligence, the "contract specification defense" has

no application to a case in which "strict liability" is the sole

theory of recovery.3

The "contract specification defense" holds that "a

manufacturer is not liable for a design defect if the product is

manufactured according to the buyer's specifications, unless the

specifications are obviously dangerous and should not be

followed." Austin v. Clarke Eguip. Co.,

, 837 (4th

Cir. 1995) (citing Spangler v. Franco, Inc.,

(4th Cir. 1973)). See also Garrison v. Rohm & Haas Co., 4 92 F .2d

346, 351 (6th Cir. 1974); Kerr v. Roemer Mach. & Welding Co.,

(S.D.N.Y. 1992), aff'd without opinion,

2The support of the district court decision in

for plaintiffs' argument is guestionable. While the ruling therein appears to bar the defendant from arguing the "military contractor" defense,

, the trial court actually submitted this issue to the jury under an appropriate instruction. 785 F.2d at 736 & n.36. The jury found that, although there was a manufacturing defect, there was not a design defect. Id.

3Plaintiffs also cite dicta from Shaw v. Grumman Aerospace Corp.,

(11th Cir. 1985), another "military contractor" defense case. That dicta, in turn, is grounded on Challoner, supra, which was decided under the law of Texas.

3 (2d Cir. 1993); Housand v. Bra-Con Indus., Inc.,

(D. Md. 1990).

The New Hampshire doctrine of "strict liability" does not

equate with "liability without fault." Simoneau v. South Bend

Lathe. Inc..

,

(1988).

Moreover, in cases of alleged design defects, recovery may be had

only "'when the product is manufactured in conformity with the

intended design but the design poses unreasonable dangers to

consumers.'" Chellman v. Saab-Scania A B ,

,

(1993) (quoting Thibault v. Sears, Roebuck & Co.,

,

(1978)) (emphasis added).4

Accordingly, the New Hampshire version of "strict liability"

is in marked contrast to that of the New Jersey court,

(rejecting requirement that manufacturer

knew or had reason to know product was unreasonably dangerous),

To maintain a products liability claim based on defective design, a plaintiff must prove: (1) that the design of the product created a defective condition unreasonably dangerous to the user; (2) that the condition existed when the product was sold by a seller in the business of selling such products; (3) that the use of the product was reasonably foreseeable by the manufacturer; and (4) that the condition caused injury to the user or the user's property.

,

(citations omitted).

4 and the California court, Brocklesbv, supra, 767 F.2d at 1296

(California courts seeking to purge the concept of fault from

strict liability focus on a defect rather than inguiring as to

whether the product is unreasonably dangerous).5 On careful

examination of the authorities cited by the respective parties,

the court is satisfied that the rule which New Hampshire would

adopt would permit evidence of the type here sought to be

presented by the defendant in a case of design defect grounded

solely on "strict liability."

Additionally, it is not true that, in all cases, a defendant

may not prove completion and acceptance of its product by a third

party as a matter of defense. Where such third party has actual

knowledge of any danger resulting from an alleged defect, such

actual knowledge may be evidence of superseding cause. Cross v.

M.C. Carlisle & Co.,

(1st Cir. 1966) (citing

Russell v. Arthur Whitcomb, Inc.,

,

(1957) ) .

Having found that the defendant may raise the "contract

specification defense" in the instant case, the court perceives

5And while Texas law includes the reguirement of "unreasonably dangerous" in a design defect case. Carter v. Massev-Ferguson, Inc.,

(5th Cir. 1983), its trial judges instruct only in general terms, without detailing the criteria (see supra note 4) necessary to prove design defect in a strict liability case, Shipp v. General Motors, Inc., 750 F .2d 418, 421-22 (5th Cir. 1985).

5 no unfair prejudice, confusion of issues, or misleading of the

jury to follow in contravention of Rule 403, Fed. R. Evid. The

jury, under proper instruction, will be permitted to consider the

validity of any such defense so presented.

3. Conclusion

For the reasons hereinabove set forth, the motion in limine

must be and it is herewith denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

August 23, 1995

cc: Christopher A. Bandazian, Esg. Lawrence S. Smith, Esg.

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