PAUL R. FORREST,
HARNISCHFEGER INDUSTRIES, INC.
On appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 00-cv-05032
District Judge: The Honorable Bruce W. Kauffman
Argued March 30, 2005
Before: ALITO, SMITH, and ROSENN, Circuit Judges
(Filed: September 16, 2005)
ALITO, Circuit Judge, concurring in the judgment.
I agree that evidence of the absence of prior accidents involving the gloss calendar at the plant in question should not have been admitted and that the plaintiff is therefore entitled to a new trial. If we were not constrained by prior circuit law, I would join the majority in holding that the admission of such evidence should be analyzed under the Federal Rules of Evidence, but our court's decision in Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976), points toward the application of state law. In addition, except for one passing reference in his District Court papers, the plaintiff's arguments at the trial level and on appeal focused exclusively on Pennsylvania law and in particular on the Pennsylvania Supreme Court's decision in Spino v. Tilley, 696 A.2d 1169 (Pa. 1997), and therefore I am doubtful that an argument based on Rule 403 of the Federal Rules of Evidence is properly before us. However, 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., 942 F.2d 204, 207 (3d Cir. 1991), and I would refrain from deciding which law applies.
Under either federal or state law, Beloit did not establish an adequate foundation. Beloit did not introduce its own safety records. Nor did it introduce evidence regarding the safety history of a large number of similar machines. Instead, in crossexamining two long-time employees, Beloit elicited testimony about the absence of prior accidents involving the machine in question. One of the employees, Edward Marshall, testified as follows:
Q. . . . You've never had an accident on the gloss calendar, correct?
A. I never had an accident, no.
Q. Okay. And you're not aware of anyone other then (sic) Mr. Forrest that's ever had an accident where his hand went through the gloss calendar correct? . . . .
A. No. . . . I'm only aware of Paul, that's all. A-709.
This was the entirety of Marshall's testimony on this point. Thus, he was not asked and did not state whether he would have been aware of any accidents that occurred when he was not present. Moreover, he stated only that he had not been personally involved in any accidents on the gloss calendar and that he was not aware of any accidents in which a worker's hand "went through the gloss calendar." A-709. He was not asked about and did not state whether he knew of other types of accidents that might be relevant. In my view, Marshall's brief testimony did not provide the foundation required by either Spino or the Federal Rules of Evidence.
The other employee, William Brody, provided a bit more information than Marshall, but his testimony was far from ideal. Specifically, Brody's brief testimony on this point focused solely on injury-producing accidents and not on any other accidents that might have been relevant. See A-669. In any event, even if Brody's testimony provided a barely adequate foundation, the admission of Marshall's testimony was erroneous and could not be regarded as harmless. The foundation requirement in cases like this is important, and this requirement cannot be met in the casual way that Beloit attempted here. For these reasons, I agree that the judgment of the District Court must be reversed and the case must be remanded for a new trial.