Cameron v. Walton-March
No. 88-7279, 1990 U.S. Dist. LEXIS 4815 (E.D. Pa. Apr. 24, 1990)
 

DUBOIS, J.

This case is before the Court on the Motion of plaintiffs, Windell and Shirley Cameron, for a new Trial. For the reasons stated below, plaintiffs' Motion will be denied.

The case arises out of injuries to the hands of Windell Cameron, a trolley operator for Southeastern Pennsylvania Transportation Authority ("SEPTA"), allegedly caused by contact with a trolley bar which had been cleaned with Prime Time, a product of Walton-March, Inc. Plaintiffs' claim is based on the allegation that Walton-March, knowing of the dangerous propensities of its product, failed to adequately warn and instruct users to avoid contact with the product which remained on surfaces it was used to clean.

The case was tried before a jury which, on December 11, 1989, in response to Special Interrogatories, determined that the product, Prime Time, was not defective.

Plaintiffs' Motion for New Trial is based on three alleged trial errors, as follows:

1. The Court improperly admitted into evidence the testimony of Richard Cameron, an employee of Walton-March, regarding the alleged absence of prior complaints concerning Prime Time because Walton-March failed to lay a proper foundation....

Plaintiffs tried the case under 402A of the Restatement (Second) of Torts, claiming that Walton-March's product, Prime Time, was defective. More specifically, plaintiffs claimed that the product was defective because it was not accompanied by proper warnings and instructions concerning its use. It was plaintiffs' contention that Windell Cameron's injury was caused by contact dermatitis, which, in turn, was caused by an allergic reaction to an ingredient or ingredients contained in Prime Time.

The case was submitted to the jury under the law set forth in Comment (j) to 402A of the Restatement (Second) of Torts. Pursuant to Comment (j), the jury was instructed that a defendant is entitled to assume that those persons with common allergies will be aware of them, and a defendant is not required to warn against them. On the other hand, the jury was charged that when a product contains ingredients to which a substantial number of the population is allergic and the ingredients are ones whose danger is not generally known to the public, a defendant is required to give warnings and instructions if the defendant has knowledge, or by the application of reasonable developed human skill and foresight, should have knowledge of the presence of the ingredient and the danger. There were no exceptions taken to that charge, and that charge is not implicated in plaintiffs' Motion for New Trial....

Richard Cameron was the Customer Service Manager and former Sales Administration Manager of Walton-March, Inc. He testified that he had been continuously employed by Walton-March from November of 1982 through the present. In 1982 he was a Sales Administrator; in 1984 he was promoted to Sales Administration Manager; and in 1986 he became the Customer Service Manager. In all those positions, he said he was familiar with the manner in which Walton-March handled complaints relating to products, including complaints of health problems associated with the use of Prime Time, and the procedure for opening and maintaining files relating to such complaints.

Walton-March offered the testimony of Richard Cameron to establish that Walton-March had received no prior complaints of health problems associated with the use of Prime Time. Such evidence was offered on the question whether Prime Time contained ingredients to which a substantial number of the population was allergic.

Under the Federal Rules of Evidence, the absence of an entry made in the regular course of business is admissible to prove the non-occurrence or non-existence of the matter.

The only requirement for the use of evidence to prove the non-existence or non-occurrence of an event is the laying of a proper foundation. In order to lay a proper foundation it is not essential that the offering witness be the person who actually recorded the events. To the contrary, it is sufficient that the witness is able to testify with respect to the way in which the records were made and the fact that they were retained in the regular course of business.

During the trial, at the conclusion of a trial day, Richard Cameron's discovery deposition and video trial deposition were taken. The Court, after reading the deposition transcripts, concluded that a proper foundation had not been laid for the introduction of testimony concerning the absence of complaints about Prime Time, and accordingly, Mr. Cameron was required to testify in person. At that time, he testified that, during the period November of 1982 to the date of his testimony, he was familiar with the way in which Walton-March handled product complaints. In elaborating on that testimony, he explained that, after receipt of each complaint, a letter would be written by someone at Walton-March to the complaining customer, and a file was created. All communications regarding customer complaints were placed in the complaint files.

Richard Cameron testified that he had physical possession of the complaint files since about 1984, and that the complaint files, before and after that date, were kept in the regular course of business activity of Walton-March.

Based on Richard Cameron's testimony, the Court determined that a proper foundation had been laid and permitted Mr. Cameron to testify that, after reviewing all of the complaint files, he could find no reference to any complaints from any users of Prime Time or any other complaints relating to Prime Time.

Plaintiffs argue that Richard Cameron's testimony about the absence of prior complaints involving Prime Time should not have been received into evidence as proof of the safety of the product for two reasons. First, plaintiffs argue that defendant failed to establish that records of complaints were kept in the regular course of Walton-March's business. For the reasons stated above, I affirm the ruling that I made at trial in which I rejected this contention.

Second, plaintiffs argue that Richard Cameron's testimony about lack of prior complaints should have been excluded because Walton-March "neglected to prove that Prime Time was being used or came into contact with users in the same way that Mr. Cameron came into contact with Prime Time; i.e., rubbing his hands directly on a surface that probably was coated with Prime Time ingredients in their pure, undiluted form." The Court rejects plaintiffs' position. The evidence of lack of prior complaints was not offered to prove the safety of Prime Time as plaintiff suggests; rather, it was admitted as proof that a substantial number of the population are not allergic to the ingredients in the product. While substantial similarity of conditions of use of a product must be established in order to prove that prior complaints constituted motive of a dangerous or defective condition, it need not be established by the offering party when evidence of absence of prior complaints is introduced merely to show that a substantial number of the population is not allergic to any ingredients in the product. Furthermore, even if defendant had the burden of establishing similarity of circumstance, it met that burden. Defendant offered sufficient evidence to establish that trolley bars on SEPTA trolleys were regularly cleaned with Prime Time in the manner that the trolley bar at issue had been cleaned before Windell Cameron came into contact with it. See, e.g., Testimony of David Stumpo, Superintendent of Transit Car Maintenance for the Southeastern Pennsylvania Transportation Authority; Testimony of Robert Hughes, Shop Foreman for Southeastern Pennsylvania Transportation Authority....

This case is before the Court on the Motion of plaintiffs, Windell and Shirley Cameron, for a New Trial. For the reasons stated below, plaintiffs' Motion will be denied.

The case arises out of injuries to the hands of Windell Cameron, a trolley operator. The Motion of plaintiffs for a New Trial is denied.

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How would the Federal Rules treat this hearsay issue? What is the unstated hearsay problem in Walton-March?

 


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