Donald E. Moyer v. United Dominion Industries, Inc

* This case was initially argued before the panel of Judges
Roth, Fuentes and Becker on November 14, 2005. After Judge
Becker died on May 10, 2006, Judge Chagares was added to the
panel.
** Judge Roth assumed senior status May 31, 2006.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2104
DONALD E. MOYER; JAYNE L. MOYER; KAREN L.
WEIDNER; MICHAEL T. WILLIAMS; REBECCA
WILLIAMS; THOMAS C. SECHRIST; PATRICIA D.
SECHRIST; STEVE R. KERN; BONNIE KERN, DAVID P.
WEIDNER
v.
UNITED DOMINION INDUSTRIES, INC.,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 97-cv-5569)
District Judge: Honorable Petrese B. Tucker
Submitted pursuant to Third Circuit LAR 34.1(1)
June 20, 2006 *
Before: FUENTES, CHAGARES, and ROTH, ** Circuit Judges.

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2
(Filed: January 9, 2007)
Lauren R. Goldman (Argued)
Andrew L. Frey
Evan A. Creutz
Mayer, Brown, Rowe & Mawe, LLP
1675 Broadway
New York, NY 10019
Attorneys for Appellant
Rosemary Pinto (Argued)
Christopher D. Warren
Feldman & Pinto PC
1604 Locust Street, 2R
Philadelphia, PA 19103
Attorneys for Appellees
OPINION OF THE COURT
FUENTES, Circuit Judge.
Plaintiffs are five factory workers who allege serious and
permanent hand injuries after years of using defendant’s swager, a
machine used to form metal. Plaintiffs claim that the swager was
defectively designed because it emitted excessive vibration, and
that the defendant failed to warn them of the vibration risk.
Before trial, and in accordance with Pennsylvania law, the
District Court conducted a risk-utility analysis and determined, as
a threshold matter, that the swager was “unreasonably dangerous.”
After a two-week jury trial on the design defect and failure to warn
claims, a jury awarded plaintiffs and their wives approximately
$13.5 million. On appeal, we consider several evidentiary issues,
as well as whether plaintiffs’ claims are barred by the applicable

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1 The wives of these employees—Jayne Moyer, Karen
Weidner, Rebecca Williams, Patricia Sechrist, and Bonnie Kern,
respectively—are also plaintiffs in this case. For convenience,
references to “plaintiffs” in this opinion refer only to the Brush
Wellman employee plaintiffs unless otherwise indicated.
2 Both parties refer to defendant as “Fenn” and we will
follow this convention for the remainder of this opinion.
3
statute of limitations. For the reasons that follow, we will affirm
in part, reverse in part, and remand for further proceedings.
I. Background
Plaintiff-Appellees Donald Moyer, David Weidner, Michael
Williams, Thomas Sechrist, and Steve Kern are employees of
Brush Wellman, a company that manufactures beryllium copper
alloys.1 Defendant-Appellant United Dominion Industries, Inc.
(“UNI”) controls Fenn Manufacturing Corporation (“Fenn”), which
produced the swager at issue in this litigation and sold it to Brush
Wellman in 1983.2 Brush Wellman installed the Fenn swager in its
rod and wire department as a component of a bull block, a
collection of machinery that operates to reduce the diameter of
beryllium copper wire. As part of this process, metal coils are fed
into a swager, which shapes the end of the coil into a point.
Plaintiffs claim that vibrations generated by the Fenn swager
caused them to develop Hand-Arm Vibration Syndrome
(“HAVS”), a dysfunction that can lead to severe pain, numbness,
and motor difficulties in the operator’s hands and arms. Plaintiffs
state that they experience near-constant pain and that they have
difficulty performing ordinary activities such as driving a car,
mowing the lawn, and playing sports with their children. The
workers’ wives state that their husbands’ moods and temperaments
have worsened since the injuries. Each plaintiff continues to work
at Brush Wellman.
In 1994, some bull block operators complained of hand
problems attributed to the Fenn swager. Brush Wellman hired
WorkAbility, an ergonomic consulting firm, to look into the

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3 Rule 238 provides for an award of delay damages against
any defendant found liable to the plaintiff in a civil action seeking
monetary relief for bodily injury, death, or property damage. Pa.
R. Civ. P. 238 (a)(1). With certain exceptions, see Pa. R. Civ. P.
238(b)(1), delay damages are to be awarded “for the period of time
from a date one year after the date original process was first served
in the action up to the date of the award, verdict or decision.” Pa.
R. Civ. P. 238(a)(2).
4
complaints. Following a January 1995 visit to Brush Wellman,
Jeffrey Eckel, a WorkAbility representative, sent a letter to Brush
Wellman offering various suggestions. At trial, Eckel testified that
his letter suggested that operators use anti-vibration gloves and
perform certain hand and wrist exercises, and that Brush Wellman
rotate duties among employees and distribute discomfort surveys
to operators. Eckel also testified that the letter attributed a “fair
amount of vibration” to the swager but it noted that the amount of
time each worker spent at the swager was minimal. In June 1995,
Brush Wellman formed a committee to consider replacing the Fenn
swager with a new model. In 1996, the company purchased a new
model along with an optional feature sold separately: an automatic
feed that eliminates exposure of the swager operator to the
machine’s vibration. Brush Wellman paid approximately $27,000
for the swager and $9,200 for the automatic feed.
In 1997, plaintiffs filed a strict liability action in the U.S.
District Court for the Eastern District of Pennsylvania, alleging (1)
that the Fenn swager was defectively designed because it did not
have an automatic feed, and (2) that Fenn had a duty to provide
adequate warnings about the vibrations generated by the Fenn
swager and did not do so. The wives of the factory workers
claimed loss of consortium. Following trial, the jury awarded
$2,450,000 to Donald Moyer; $2,800,000 to Steve Kern;
$1,600,000 to Thomas Sechrist; $3,400,000 to Michael Williams;
$2,700,000 to David Weidner; and $100,000 to each employee’s
wife. Fenn then moved for judgment as a matter of law or, in the
alternative, for a new trial, and plaintiffs sought delay damages
under Rule 238 of the Pennsylvania Rules of Civil Procedure.3 The

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District Court denied Fenn’s motions and awarded plaintiffs a total
of $3,242,566 in delay damages.
On appeal, Fenn argues that the District Court erred by (1)
making the “unreasonably dangerous” determination under an
incorrect standard; (2) excluding evidence of misuse and improper
maintenance of the swager by plaintiffs and by Brush Wellman; (3)
excluding evidence of the lack of previous claims against Fenn for
injuries caused by swager vibration; (4) excluding vibration
exposure guidelines proffered by Fenn; (5) excluding evidence
about foreseeability in relation to plaintiffs’ failure-to-warn claim;
(6) improperly instructing the jury; (7) failing to bar the claims of
plaintiffs Moyer, Sechrist, and Kern under Pennsylvania’s two-year
statute of limitations for personal injury claims; (8) failing to find
the damages awarded by the jury to be grossly excessive; and (9)
awarding delay damages and excessive post-judgment interest to
the plaintiffs. Fenn asserts that, based on all the relevant evidence,
it is entitled to judgment as a matter of law on all claims. In the
alternative, Fenn argues that in light of the District Court’s various
errors, a new trial is necessary.
II. Discussion
A. “Unreasonably Dangerous” Analysis
Under Pennsylvania law, strict liability allows recovery
when a defective product that is “unreasonably dangerous” causes
harm to a user or consumer. See Phillips v. A-Best Prod. Co., 665
A.2d 1167, 1170 (Pa. 1995) (quoting Restatement (Second) of
Torts § 402A). Yet, in Azzarello v. Black Bros. Co., 391 A.2d
1020, 1026 (Pa. 1978), the Pennsylvania Supreme Court rejected
the use of the “unreasonably dangerous” formulation as part of the
jury instructions in products liability cases. In Azzarello, the Court
was concerned that, although a jury is obviously competent to
resolve disputes about the condition of a product, whether that
condition justifies placing liability upon the supplier presents an
entirely different question. Id. Because the Supreme Court
believed the “unreasonably dangerous” decision to be a question of
law, the resolution of which depends upon social policy
considerations, it concluded that the judge must make that decision.

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6
In Surace v. Caterpillar, Inc., 111 F.3d 1039 (3d Cir. 1997),
we considered how the trial judge should make the threshold
unreasonably dangerous determination. Applying Pennsylvania
law, we held that the judge should “engage in a risk-utility
analysis, weighing a product’s harms against its social utility.” Id.
at 1044. We identified some of the factors relevant to this analysis:
(1) The usefulness and desirability of the
product—its utility to the user and to the public as a
whole; (2) The safety aspects of the product—the
likelihood that it will cause injury, and the probable
seriousness of the injury; (3) The availability of a
substitute product which would meet the same need
and not be as unsafe; (4) The manufacturer’s ability
to eliminate the unsafe character of the product
without impairing its usefulness or making it too
expensive to maintain its utility; (5) The user’s
ability to avoid danger by the exercise of care in the
use of the product; (6) The user’s anticipated
awareness of the dangers inherent in the product and
their avoidability, because of general public
knowledge of the obvious condition of the product,
or of the existence of suitable warnings or
instruction; and (7) The feasibility, on the part of the
manufacturer, of spreading the loss of [sic] setting
the price of the product or carrying liability
insurance.
Id. at 1046 (quoting Dambacher v. Mallis, 485 A.2d 408, 423 n.5
(Pa. Super. Ct. 1984). Relying on these factors, the judge makes
the pre-trial determination as a matter of law. Id. (explaining that
determination of “whether the product’s condition justifies placing
the risk of loss on the manufacturer or supplier” is a question of
law for the judge); see also A-Best Prod. Co., 665 A.2d at 1171
n.5; Azzarello, 391 A.2d at 1026. Furthermore, the judge makes
the determination under a weighted view of the evidence,
considering the facts in the light most favorable to the plaintiff.
See A-Best Prod. Co., 665 A.2d 1171 n.5.
If the judge concludes that a product is “unreasonably
dangerous” the case is submitted to the jury, which then decides,

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7
based on all the evidence presented, “whether the facts of the case
support the averments of the complaint.” Azzarello, 391 A.2d at
1026. In making this determination, however, the jury does not
balance the risk-utility factors, even though the judge has only
done so as a threshold matter. See, e.g., Brandimarti v. Caterpillar
Tractor Co., 527 A.2d 134, 138 (Pa. Super. Ct. 1987) (holding that
the jury is not to be presented with risk-utility factors); Restatement
(Third) of Torts: Products Liability § 2, Reporters’ Note, cmt. d, at
55 (1998) (noting that in Pennsylvania “the court has reserved to
itself risk-utility balancing . . . .”); James Henderson, Jr. & Aaron
D. Twerski, Achieving Consensus on Defective Product Design, 83
Cornell L. Rev. 867, 897 (1998) (“Pennsylvania stands alone in its
view that risk-utility balancing is never properly a jury function.”).
Instead, the jury considers whether 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.’” Phillips v. Cricket Lighters, 841 A.2d 1000, 1005
(Pa. 2003) (quoting Azzarello, 391 A.2d at 1027) (emphasis
omitted).
The Pennsylvania Supreme Court intends that this division
of labor between judge and jury will preserve the substantive
distinction between strict liability and negligence causes of action.
See Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590,
593 (Pa. 1987) (emphasizing Azzarello’s conclusion that
“negligence concepts have no place in a case based on strict
liability”); Cricket Lighters, 841 A.2d at 1007 (“Strict liability was
intended to be a cause of action separate and distinct from
negligence, designed to fill a perceived gap in our tort law.”). The
Court has explained that the jury’s focus should be on the condition
of the product, not on the conduct of the supplier. See Lewis, 528
A.2d at 593 (“[I]t is the product itself which is on trial, and not the
manufacturer’s conduct.”).
The two-step process adopted in Azzarello is not without
controversy. Soon after the case was decided, one commentator
noted that Azzarello’s limitation of the jury’s role was “a matter of
concern since the jury has traditionally played an important role in
the expansion of the law of products liability.” Aaron D. Twerski,
From Risk-Utility to Consumer Expectation: Enhancing the Role
of Judicial Screening in Product Liability Litigation, 11 Hofstra L.

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4 See, e.g., Alabama: Graham v. Sprout-Waldron & Co., 657
So. 2d 868, 870-71, 874 (Ala. 1995) (jury application of consumer
expectations test); Alaska: Gen. Motors Corp. v. Farnsworth, 965
P.2d 1209, 1220-21 (Alaska 1998) (jury application of either
consumer expectations test or risk-utility test, depending on the
circumstances); Arizona: Dart v. Wiebe Mfg., Inc., 709 P.2d 876,
880 (Ariz. 1985) (jury application of either consumer expectations
or risk-utility test); Arkansas: Farm Bureau Ins. Co. v. Case Corp.,
878 S.W.2d 741, 744-45 & n.4 (Ark. 1994) (jury application of
consumer expectations test); California: Soule v. Gen. Motors
Corp., 882 P.2d 298, 308-10 (Cal. 1994) (jury application of
consumer expectations test incorporating some risk-utility factors);
Colorado: Barton v. Adams Rental, Inc., 938 P.2d 532, 537 (Colo.
1997) (jury application of risk-utility test); Connecticut: Potter v.
Chicago Pneumatic Tool Co., 694 A.2d 1319, 1333-34 & n.15
(Conn. 1997) (jury application of consumer expectations test
incorporating risk-utility factors); Florida: Standard Jury
Instructions-Civil Cases (99-1) 778 So. 2d 264, 271 (Fla. 2000)
8
Rev. 861, 926 (1983). Another writer more recently noted that
“Azzarello remains to this day one of the most controversial
opinions ever issued on the subject of strict products liability for
alleged design defects.” John M. Thomas, Defining “Design
Defect” in Pennsylvania: Reconciling Azzarello and the
Restatement (Third) of Torts, 71 Temp. L. Rev. 217, 217 (1998).
Furthermore, the latest Restatement of Torts has called
Pennsylvania’s products liability law “sometimes difficult to
decipher.” See Restatement (Third) of Torts: Products Liability §
2, Reporters’ Note, cmt. d, at 54. Even a member of
Pennsylvania’s Supreme Court recently criticized Azzarello’s
controversial approach. See Cricket Lighters, 841 A.2d at 1016
(Saylor, J., concurring) (“There are several ambiguities and
inconsistencies in Pennsylvania’s procedure . . . which render our
law idiosyncratic.”).
Our own review of products liability law reveals that most
other jurisdictions give the jury a central role in making the strict
liability determination and regard juries as capable of balancing
risk-utility factors, even though some of those factors may touch on
matters of social policy.4 Indeed, our research fails to disclose any

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(standard strict products liability jury instructions provide for use
of both consumer expectations and risk-utility test); Georgia:
Banks v. ICI Americas, Inc., 450 S.E.2d 671, 673-75 (Ga. 1994)
(jury application of risk-utility analysis with a consideration of
whether there is a reasonable alternative design); Hawaii: Ontai v.
Straub Clinic & Hosp., Inc., 659 P.2d 734, 739-42 (Haw. 1983)
(jury application of consumer expectations or risk-utility test);
Idaho: Rojas v. Lindsay Mfg. Co., 701 P.2d 210, 211-12 (Idaho
1985) (jury application of consumer expectations test); Illinois:
Hansen v. Baxter Healthcare Corp., 764 N.E.2d 35, 43-46 (Ill.
2002) (jury application of both consumer expectations and risk-
utility test, along with consideration of whether there is reasonable
alternative design); Indiana: Welch v. Scripto-Tokai Corp., 651
N.E.2d 810, 814 & n.2 (Ind. Ct. App. 1995) (jury application of
consumer expectations test); Iowa: Wright v. Brooke Group Ltd.,
652 N.W.2d 159, 169 (Iowa 2002) (jury application of risk-utility
analysis with requirement that plaintiff demonstrate safer
alternative design); Kansas: Delaney v. Deere & Co., 999 P.2d 930,
944-46 (Kan. 2000) (jury application of consumer expectations
test); Kentucky: Ostendorf v. Clark Equip. Co., 122 S.W.3d 530,
535 (Ky. 2003) (jury application of risk-utility analysis); Maryland:
Murphy v. Playtex Family Prod. Corp., 176 F. Supp. 2d 473, 485,
489-90 (D. Md. 2001) (jury application of either consumer
expectations or risk-utility test); Mississippi: Smith v. Mack
Trucks, Inc., 819 So. 2d 1258, 1266 (Miss. 2002) (jury application
of risk-utility analysis); New Hampshire: Vautour v. Body Masters
Sports Indus., Inc., 784 A.2d 1178, 1182 (N.H. 2001) (jury
application of combined consumer expectations and risk-utility
tests); New Jersey: Lewis v. Am. Cyanamid Co., 715 A.2d 967,
975 (N.J. 1998) (jury application of risk-utility analysis; plaintiff
must demonstrate feasible alternative design); New Mexico:
Brooks v. Beech Aircraft Corp., 902 P.2d 54, 61-62 (N.M. 1995)
(jury application of risk-utility analysis); New York: Denny v. Ford
Motor Co., 662 N.E.2d 730, 735-38 (N.Y. 1995) (jury application
of risk-utility analysis); Ohio: Conde v. Velsicol Chem. Corp., 804
F. Supp. 972, 978, 982 (S.D. Ohio 1992) (jury application of either
consumer expectations or risk-utility test); Oklahoma: Basford v.
Gray Mfg. Co., 11 P.3d 1281, 1284 (Okla. Civ. App. 2000) (jury
question whether product was “unreasonably dangerous”); Oregon:
9

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McCathern v. Toyota Motor Corp., 985 P.2d 804, 809-11, 814-15
(Or. Ct. App. 1999) (jury application of consumer expectations test,
with some use of risk-utility analysis); South Carolina: Reed v.
Tiffin Motor Homes, Inc., 697 F.2d 1192, 1195-97 (4th Cir. 1982)
(applying South Carolina law) (jury application of mix of consumer
expectations and risk-utility analysis); Tennessee: Jackson v. Gen.
Motors Corp., 60 S.W.3d 800, 803-05 (Tenn. 2001) (jury
application of either consumer expectations test or variation of the
risk-utility test); Texas: Hernandez v. Tokai Corp., 2 S.W.3d 251,
256 & n.8 (Tex. 1999) (jury application of risk-utility analysis;
plaintiff must also show evidence of safer alternative design);
Wisconsin: Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727,
738-41 (Wis. 2001) (jury application of consumer expectations
test). Cf. Missouri: Rodriguez v. Suzuki Motor Corp., 996 S.W.2d
47, 65 (Mo. 1999) (rejection of both consumer expectations and
risk-utility tests; whether product is unreasonably dangerous is “an
ultimate issue for the jury,” to be determined without “external
standards”); Wyoming: Campbell ex rel. Campbell v. Studer, Inc.,
970 P.2d 389, 392-93 (Wyo. 1998) (jury determination of whether
product is unreasonably dangerous without clearly articulated test).
5 Perhaps Pennsylvania’s unique two-step process has
contributed to the challenges we have met to the relevance and
admissibility of evidence in suits arising under the state’s strict
liability law. See, e.g., Forrest v. Beloit Corp., 424 F.3d 344, 353-
62 (3d Cir. 2005) (addressing admissibility of evidence in
Pennsylvania products liability case); Barker v. Deere & Co., 60
F.3d 158, 161-64 (3d Cir. 1995) (same); Habecker v. Clark Equip.
Co., 36 F.3d 278, 284-87 (3d Cir. 1994) (same); Dillinger v.
Caterpillar, Inc., 959 F.2d 430, 435-44 (3d Cir. 1992) (same).
10
other jurisdiction that has adopted the two-step approach or denies
the jury a chance to apply the risk-utility test. Nevertheless, the
Azzarello framework represents the Pennsylvania Supreme Court’s
decision about the proper adjudication of the substantive rights of
litigants in the products liability context, and, as a federal court
sitting in diversity, “we are bound to adjudicate the case in
accordance with applicable state law.” Nationwide Mut. Ins. Co.
v. Cosenza, 258 F.3d 197, 202 (3d Cir. 2001).5

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B. Exclusion of Evidence
Against this backdrop, the District Court in this case
engaged in a threshold risk-utility analysis on a weighted view of
the evidence before proceeding to trial. See Moyer v. United
Dominion Indus., Inc., No. 97-CV-5569, 2004 WL 764841, at *11-
12 (E.D. Pa. Mar. 31, 2004). Fenn argues that this risk-utility
analysis should have been performed under a neutral view of the
evidence. This contention, however, is foreclosed by Third Circuit
and Pennsylvania precedent. More persuasively, Fenn asserts that,
based on a misunderstanding of Pennsylvania law, the District
Court erroneously excluded evidence pertinent to the jury’s
ultimate defective design determination.
Fenn also contends that the District Court erred in excluding
from the jury’s consideration all evidence relating to “conduct,”
including evidence of misuse and evidence concerning the lack of
prior claims. The District Court did not provide reasons for its
evidentiary exclusions in its pre-trial order, but indicated in its
post-trial denial of Fenn’s motions that its evidentiary exclusions
were based, at least in part, on its interpretation of Azzarello. For
example, the District Court explicitly distinguished between the
role of the Court in performing the risk-utility analysis and the
evidence presented at trial, citing at length portions of Azzarello
relating to the respective roles of judge and jury. Moyer, 2004
WL 764842, at *14-15. Because we believe that the District
Court’s understanding of Azzarello ultimately affected its
evidentiary rulings, we briefly review what evidence a jury can
consider in a strict liability case under Azzarello. We then turn to
the District Court’s exclusion of certain evidence that we believe
warrants remand for a new trial.
As discussed, Azzarello reserves a screening function for
the judge who makes the “unreasonably dangerous” determination
before the jury considers the case. If the judge concludes that the
product is unreasonably dangerous under the facts as alleged by the
plaintiff, the jury makes factual determinations regarding liability.
Specifically, the jury is required, under Azzarello, to consider
whether a product “lack[s] any element necessary to make it safe
for its intended use.” Azzarello, 391 A.2d at 1027. We do not
believe that, under this approach, the Pennsylvania Supreme Court

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expects that a judge will prevent all evidence considered in the
risk-utility analysis from reaching the jury. Nor do we believe that,
when the Azzarello Court adopted its own strict liability standard,
it intended to deprive the jury of its significant fact-finding
responsibilities. Indeed, comparing the “intended use” standard
with the risk-utility standard, we observe that evidence pertinent to
one will often be relevant to the other.
For one thing, just as the judge has considered “safety”
under the second risk-utility factor, the jury will also have to
consider evidence relevant to whether the product is “safe.” See
Azzarello, 391 A.2d at 1027 (laying out jury standard that product
must be “safe for its intended use”) (emphasis added). Moreover,
just as the judge has evaluated feasible alternatives to a product
under the fourth risk-utility factor, the jury will also have to
evaluate them to assess the “condition” of a product. See Surace,
111 F.3d at 1049 (“[T]he technical feasibility issue will go to the
jury in determining whether the [proposed safety feature] was an
element necessary to make the [product] safe for its intended
use.”). And, as discussed below, to assess other factual issues,
such as causation or lack of defect, the jury will have to consider
evidence relied on by the judge. In other words, evidence should
not be excluded from the jury simply because it was relevant to the
judge’s threshold risk-utility analysis. Such a relevance
determination must be made on its own merits, even though the
jury’s consideration of this evidence provides the defendant an
opportunity to contest certain facts relevant to the judge’s analysis.
1. Evidence of Misuse and Inadequate
Maintenance
Fenn argues that the District Court erred in excluding
evidence that plaintiffs and Brush Wellman misused and
inadequately maintained the swager, as well as evidence that this
conduct, rather than the alleged design defect, led to plaintiffs’
injuries. Plaintiffs argue that the evidence was irrelevant because
Fenn failed to demonstrate that misuse or improper maintenance
actually caused plaintiffs’ injuries. The District Court excluded the
proffered evidence without explanation.
A ruling on the admissibility of evidence is reviewed for

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13
abuse of discretion. Forrest, 424 F.3d at 349. To demonstrate an
abuse of discretion, Fenn must show that the District Court’s
decision was “arbitrary, fanciful or clearly unreasonable.” Stecyk
v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002)
(internal quotation marks omitted). Of course, only relevant
evidence is admissible at trial. Fed. R. Evid. 402. But relevant
evidence is defined broadly as evidence that has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” Fed. R. Evid. 401. Here, Fenn
argues that evidence of misuse is relevant to negating causation, a
necessary element of plaintiffs’ design defect claim.
Under Pennsylvania law, evidence of misuse is generally
admissible to defeat causation in a strict liability design defect case.
See Dillinger 959 F.2d at 445 (noting that “[t]he Pennsylvania
courts . . . appear to permit the defendant to introduce evidence
establishing that the plaintiff misused the product to defeat a
products liability claim”); Clark v. Bil-Jax, Inc., 763 A.2d 920, 923
(Pa. Super. Ct. 2000) (“[E]vidence of a plaintiff’s . . . misuse of a
product . . . is admissible [in a strict liability action] insofar as it
relates to the element of causation.”) (internal quotations marks
omitted); Charlton v. Toyota Indus. Equip., 714 A.2d 1043, 1047
(Pa. Super. Ct. 1998) (same). Some Pennsylvania cases suggest,
however, that such evidence is admissible only if the misuse was
the sole cause of the injury. See Madonna v. Harley Davidson,
Inc., 708 A.2d 507, 509 (Pa. Super. Ct. 1998) (“As [several
Pennsylvania] cases demonstrate, a user’s negligence is not
relevant if the product defect contributed in any way to the harm.
However, where the defense offers evidence to establish that the
accident was solely the result of the user’s conduct, and not related
in any way with a product defect, it is relevant and admissible for
the purpose of proving causation.”).
Thus, Fenn’s evidence should have been admitted if it had
any tendency to show that plaintiffs’ injuries were caused solely by
misuse and inadequate maintenance of the swager, rather than by
a design defect. Fenn asserts that it proffered significant evidence
suggesting misuse and inadequate maintenance by Brush Wellman.
Brush Wellman’s maintenance manager, David Graeff, testified at
his deposition that the swager was overused and that the dies,

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14
which are components of the swager that assist in the metal shaping
process, would become “red hot smoking.” (Joint Appendix (“JA”)
1426.) He further testified that “in most cases the operators
probably didn’t do the normal daily things to the swager—I know
they didn’t— . . . that we later found out we were supposed to be
doing. And that means such things as cleaning out the shavings out
of the dies and hammers that accumulated.” (JA 1426.) Graeff
also stated:
[A]t times I remember the flakes would build up so
bad that the hammers would lock up, and we would
get work orders like, the swager doesn’t work. Well,
it’s like, Duh, open the door up and look at the
machine and see what’s going on, and you’ll realize
that you should be—you know, like it’s locked up
because there’s so much residue in here that it can’t
run.
(JA 1428.)
In addition, Graeff testified that the operators would
improperly use the swager to process oversized metal. Walter
Perun, Fenn’s manufacturing manager, inspected the Brush
Wellman swager in 1995. He testified at his deposition that
operators of the swager were using manila tags under the dies to
compress the dies and achieve a certain diameter, and that this was
an improper use of the machine. He also stated that “[c]omponents
within the machine were quite worn,” “their setup [of the machine
was] definitely improper,” and “[t]he machine was very loaded
with chips and it is not a chip cutting machine; it’s a swaging
machine.” (JA 1434.)
Lastly, a “Memorandum of Justification” prepared by Brush
Wellman staff to support their request for a new swager noted that
in 1994, several bull block operators had hand and wrist symptoms
that they attributed to vibration caused by swaging and that an
investigation indicated that:
1. The operators are handling additional coils of
larger diameter material requiring a higher frequency
of swaging larger material

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15
2. The large diameter material is approaching
approximately 5/8" or larger which is outside the
operational limits of the existing Fenn swager
. . .
4. The swager no longer operates in the manner
designed by the manufacturer
5. The swager is not hammering the material
properly as [chips], [f]lakes and dust are evident in
and around the machine
(JA 1422 (emphasis added).) The memo also noted that, after an
investigation of the swager by a Fenn representative,
[t]he representative indicated that due to heavy use,
age and lack of routine maintenance, the inner
workings of the swager are out of tolerance and
need machining. These inner workings, are causing
employees to be over-exposed to the excessive
vibration. During his visit, the representative also
determined that some diameters of metal processed
. . . exceed the operational limits of the swager
which may result in excessive vibration and
accelerated wear of the machinery.
(JA 1423 (emphasis added.))
Regarding causation, Fenn argues that several portions of
deposition testimony indicated that misuse or lack of maintenance
of the swager could lead to a dangerous increase in vibrations.
Walter Perun suggested such a connection in his deposition:
Q: What would the result of the chipping problem
be? What would be the problems when you have that
chipping? What occurs?
A (Walter Perun): These chips may get caught in
between the components of the machine creating a
larger interference than the machine is designed to
handle causing premature hardening and pitting of
those components, which in turn hardened
components that pit from within the head can also
damage other components within the machine

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6 Fenn also argues that the trial and deposition testimony of
its expert, Dr. Cherniack, supports its causation argument. At trial,
16
because they will float around as the machine is
rotating.
. . .
Q: Does it affect the user in any way?
A: It can.
Q: How?
A. If the [swager] isn’t running properly it would be
hard to feed. They would have to push a lot harder to
get it in. If it’s not shimmed properly—the machine
is designed to operate on a center line and if they are
not shimming properly, they are offsetting the center
line which causes the machine to run in an out of
round condition.
Q: What is an out of round condition? What does that
mean?
. . .
A: Not concentric.
Q: Okay. Does that create any safety hazard for the
worker, the user of the machine?
A: It may.
Q: In what way?
A: Depending on to what extent. If they were to be
shimmed 70 thousandths off of center line, then it
can cause vibration.
Q: The same question with regard to the other
problems that we talked about, I think you talked
about parts of the machine being improperly
maintained and not—not cleaned and not properly
maintained. Could that affect vibration levels?
A: It may.
(JA 1438.) David Graeff appeared to share this view. In his
deposition, he was asked: “Did anybody from Fenn, to your
recollection, ever tell you that improper maintenance could cause
personal injury due to an increase in vibration?” He replied: “I
don’t remember that being said, but it’s pretty apparent that, yes,
that is the case.” (JA 1431.) 6

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Dr. Cherniack suggested that improper balance within machines
generally can increase vibration, but he did not provide clear
testimony about the swager in particular. Dr. Cherniack’s
deposition testimony was similarly vague. Overall, Dr. Cherniack’s
testimony only minimally strengthens Fenn’s causation argument.
17
This Court has noted that “[t]he definition of relevant
evidence is very broad” and that Rule 401 “does not raise a high
standard.” Gibson v. Mayor & Council of Wilmington, 355 F.3d
215, 232 (3d Cir. 2004) (internal quotations marks omitted).
“[W]hile Rule 401 gives judges great freedom to admit evidence,
[it] diminishes substantially their authority to exclude evidence as
irrelevant.” Id. (internal quotation marks omitted) (alteration in
original). In this case, we hold that the evidence proffered by the
defendant had the tendency to demonstrate an alternative cause for
plaintiffs’ development of HAVS, and was relevant under Rule
401. We therefore conclude that the District Court abused its
discretion in excluding the evidence.
Plaintiffs suggest that even if the District Court erred, the
error was harmless because Fenn was permitted to introduce
evidence of misuse and improper maintenance at trial despite the
District Court’s pre-trial ruling. An error is harmless “only if it is
highly probable that the error did not affect the outcome of the
case.” Forrest, 424 F.3d at 349 (internal quotation marks omitted).
Plaintiffs note that, at trial, plaintiffs’ expert witness, Dr. David
Clark, agreed on cross-examination that “[m]aintenance is a
consideration” in controlling hazards. (JA 270.) Dr. Clark also
admitted that he did not investigate Brush Wellman’s maintenance
of the swager in reaching the conclusion that the swager caused
plaintiffs’ injuries. Plaintiffs also point to Walter Perun’s trial
testimony that, based on his inspection of the Fenn swager in 1995,
it was not “operating as designed.” (JA 503.) In addition, plaintiffs
note that Mr. Moyer and Mr. Sechrist admitted at trial that they
would sometimes swage one coil several times, and that they would
swage very large coils by forcing them into the machine. Other
trial testimony suggested that these were improper uses of the
swager, as a particular coil should not be swaged more than once
and some of the swaged coils were larger than intended for the

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7 It is notable that, in considering plaintiffs’ motion for a
new trial or for judgment as a matter of law based on the exclusion
of evidence of misuse, the District Court did not attempt to justify
its decision to exclude the evidence. Instead, the District Court
found any error to be harmless because “[w]hile the Court did not
permit the Defendant to offer evidence to the extent requested, this
Court did not totally exclude the evidence on issues of misuse,
failure to maintain, and changes in the swaging machine.” Moyer,
2004 WL 764841, at *8.
8 Fenn argues that, based on the evidence of misuse and
improper maintenance, the District Court should have granted
Fenn’s motion for judgment as a matter of law as to plaintiffs’
design defect claim. We exercise plenary review over the District
Court’s denial and apply the same standard as the District Court.
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
1993). “Such a motion should be granted only if, viewing the
evidence in the light most favorable to the nonmovant and giving
it the advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could find
liability.” Id. We hold that judgment as a matter of law was not
warranted here. A jury reasonably could find that any misuse and
improper maintenance of the Fenn swager was not sufficient to
18
Fenn swager. 7
Although Fenn managed to introduce some testimony related
to maintenance and misuse at trial, we cannot say that the District
Court’s pre-trial order did not affect the verdict. The statements in
the Memorandum of Justification provide more explicit evidence of
misuse and lack of maintenance than any evidence admitted at trial.
Moreover, defense counsel was constrained by the District Court’s
pre-trial ruling from conducting extensive cross-examination on the
issue and including a detailed discussion in the opening and closing
statements. A party is severely impaired when it is prohibited from
presenting its theory of a case in a comprehensive and organized
manner at trial, even if it has managed to slip a few references into
the record. We hold that the District Court’s exclusion of Fenn’s
evidence of misuse and inadequate maintenance was not harmless
error.8

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cause plaintiffs’ alleged injuries, and that the cause of plaintiffs’
injuries was the Fenn swager as originally designed and sold to
Brush Wellman. For similar reasons, judgment as a matter of law
was also unwarranted for plaintiffs’ failure to warn claim.
19
2. Evidence of Existence of Prior Claims
Fenn also appeals the District Court’s exclusion of evidence
concerning the lack of prior claims against Fenn for vibration-
related hand injuries. Fenn would have presented testimony
describing the absence of such claims in UNI’s computerized
database of claims and lawsuits. The District Court excluded the
evidence without explanation.
Whether evidence of a lack of prior claims is admissible in
a diversity case is governed by federal law. See Forrest, 424 F.3d
at 354. In Forrest, this Court noted that evidence of a lack of past
claims in a products liability case may suggest lack of product
defect, lack of an unduly dangerous situation, or lack of causation,
and is thus generally relevant under the Federal Rules of Evidence.
Id. at 356. The Forrest Court emphasized, however, that such
evidence should often be excluded under Rule 403, if the probative
value of the evidence is substantially outweighed by its prejudicial
effect or its tendency to confuse or mislead the jury. Id. at 356.
The Court noted that evidence of no past claims, “by its very
nature, raises significant concerns regarding unfair prejudice to the
plaintiff,” and that the danger of prejudice is particularly strong
under Pennsylvania law, which requires the jury to focus solely on
“whether the product as designed presents a potential danger to the
intended user,” and leaves risk-utility analysis to the judge. Id. at
357-58. Rule 403 analysis of past claims evidence necessarily
“turns on the facts and circumstances of each case.” Id. at 358.
The Forrest Court suggested a three-part analysis for determining
whether past claims should be admitted:
(a) similarity—the defendant must show that the
proffered testimony relates to substantially identical
products used in similar circumstances; (b)
breadth— the defendant must provide the court with
information concerning the number of prior units

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9 Under the awareness prong, plaintiffs argue that HAVS is
a “latent dose-response creeping disease,” and that incorrect
diagnosis or a long-term failure to recognize the problem could
have resulted in a lack of claims recorded by Fenn. In light of the
long period during which Fenn has recorded claims, however, it is
reasonable to assume that, if there had been HAVS-related swager
allegations, Fenn would have been aware of at least some of them.
Plaintiffs have presented no evidence to contradict this view.
20
sold and the extent of prior use; and (c)
awareness—the defendant must show that it would
likely have known of prior accidents had they
occurred.
Id. at 358.
Under the test set forth in Forrest, the District Court should
not have excluded Fenn’s proffered evidence. Kathleen DeLoache,
UNI’s litigation paralegal, testified in her deposition that since the
mid-1980’s, UNI has maintained a comprehensive computerized
database of claims and lawsuits filed against UNI and its
subsidiaries. DeLoache stated that she performed a search of the
database and found no evidence of any claim or lawsuit, prior to
this litigation, based on an allegation of upper-extremity injury due
to vibration caused by a Fenn swager or by any other UNI product.
In addition, John Bryzgel, who had previously worked as vice
president of the machinery division at Fenn, testified at trial that
Fenn has produced and sold thousands of swagers since 1950, and
that less than 5% of the large model swagers have been sold with
automatic feeds. Although plaintiffs argue that Fenn’s proffered
evidence was not specific to the model 3F 2 swager—the type of
swager sold to Brush Wellman—plaintiffs never challenged the
evidence on this ground, and Bryzgel did testify that all Fenn 3F
swaging machines are “basically the same as far as all the internal
parts go.” (JA 537.) Accordingly, the evidence proffered by Fenn
was sufficient to satisfy the similarity, breadth, and awareness
requirements described in Forrest.9 We therefore conclude that the
District Court improperly excluded the evidence.
C. Statute of Limitations

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10 The statute provides that “[a]n action to recover damages
for injuries to the person or for the death of an individual caused by
the wrongful act or neglect or unlawful violence or negligence of
another” must be commenced within two years.
11 On appeal, Fenn does not assert that the claims of
Williams or Weidner are time-barred.
21
We also consider Fenn’s contention that the claims of
plaintiffs Moyer, Sechrist, and Kern are barred by Pennsylvania’s
two-year statute of limitations for personal injury suits. 42 Pa.
Cons. Stat. Ann. § 5524(2).10 Fenn filed for summary judgment on
this issue before trial and its motion was denied. Moyer v. United
Dominion Indus., Inc., No. 97-CV-5569, 1999 WL 391488, at * 3
(E.D. Pa. May 25, 1999). The District Court submitted the issue to
the jury in a special interrogatory, and the jury found that the statute
of limitations did not bar the claims of any plaintiff. See Moyer,
2004 WL 764841, at *3.11
We look to Pennsylvania tolling principles in applying the
state’s limitations period. Bohus v. Beloff, 950 F.2d 919, 924 (3d
Cir. 1991). We exercise plenary review over the District Court’s
decision to submit the limitations issue to the jury, as well as its
interpretation of applicable tolling principles, but we review for
clear error all factual findings underlying the District Court’s
analysis of the tolling issue. See Sheet Metal Workers Int’l Ass’n,
Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991).
Plaintiffs’ complaint was filed on September 2, 1997. Thus,
the limitations period must have been triggered no earlier than
September 2, 1995, for each plaintiff to satisfy Pennsylvania’s
statute. Generally, the statute of limitations for a tort action under
Pennsylvania law begins to accrue when the injury is sustained.
Debiec v. Cabot Corp., 352 F.3d 117, 128-29 (3d Cir. 2003). The
“discovery rule” is an exception to this principle, which applies
where “a party, through no fault of his or her own, does not
discover [his or] her injury until after the statute of limitations
normally would have run.” Id. at 129. In that case, the limitations
period begins to run when “the plaintiff knows, or reasonably
should know: (1) that he has been injured, and (2) that his injury

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22
has been caused by another party’s conduct.” Id. (internal
quotation marks omitted). The party claiming the benefit of the
discovery rule has the burden of demonstrating that it applies, and
must establish reasonable diligence in investigating his or her
physical condition, with “reasonableness” considered under an
objective standard. Id. Thus, in latent disease cases, the limitations
period is triggered when “the plaintiffs possessed ‘sufficient critical
facts to put [them] on notice that a wrong has been committed and
that [they] need investigate to determine whether [they were]
entitled to redress.’” Id. (quoting Zeleznik v. United States, 770
F.2d 20, 23 (3d Cir. 1985)) (alterations in original). The issue of
reasonable diligence is usually for the jury to decide, but “where
the facts are so clear that reasonable minds cannot differ, the
commencement period may be determined as a matter of law.”
Cochran v. GAF Corp., 666 A.2d 245, 248 (Pa. 1995).
1. Donald Moyer
Moyer testified that he has worked at Brush Wellman since
1990, and that the job has always involved some level of hand pain.
In November 1995, Moyer’s hands turned white and numb while he
was hunting, and became very painful after the numbness abated.
This condition, which was different from hand pain that he had
previously experienced, occurred several times after the hunting
incident and prompted him to visit a company doctor, Dr. Grundy,
in January 1996. Dr. Grundy told him that he had hereditary
Raynaud’s disease. After reading an article about Raynaud’s and
vibration in March 1996, Moyer went to see an expert, who told
him that his hand problems were probably due to the swager.
Moyer testified that prior to 1996, he was not told by anyone that
vibration from the swager could cause him injury.
Fenn notes that “a definitive diagnosis of an injury is not
necessary to start the statute running,” Debiec, 352 F.3d at 132, and
argues that Moyer knew about a connection between his hand pain
and the swager in April 1995. In that month, Moyer filled out a
WorkAbility discomfort survey in which he noted that he
experienced discomfort in his “shoulder, elbow, forearm, fingers,
and upper back,” and that his symptoms included “aching and
numbness, tingling, burning, and stiffness.” (JA 118-19.) In
response to the survey question “what do you think caused the

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23
problem?” Moyer wrote “[the bull block], the swager, and working
with heavy wire.” (JA 119.) Asked to comment on “what you
think would decrease your problems,” Moyer wrote: “Replace
swager with one suited for the job. Rotate with other operators.
Have production control try to even out the heavy work between
the three shifts.” (JA 119-20.)
Fenn also notes that Jeffrey Eckel, the WorkAbility
employee who visited Brush Wellman in early 1995 to investigate
complaints of hand problems, testified that workers suggested to
him during the visit that their problems might be caused by the
swager. Eckel also testified, however, that he did not tell any
workers at the company that they had sustained an injury or had a
vibration-related disease.
We conclude that Moyer’s claim is not time-barred. While
it is clear from Moyer’s survey responses that by April 1995 he
suspected that the swager, among other machinery, was causing
him hand discomfort, it cannot be said as a matter of law that he
knew or should have known that he had suffered an injury. Moyer
testified that the problems in his hands changed significantly in
character in November 1995, from the general type of hand aches
and pains that he was familiar with to whiteness, numbness, and
pain that did not dissipate for a long period of time. The jury could
have reasonably concluded that until this new pain arose, Moyer
had no reason to suspect wrongdoing or to investigate his condition.
We therefore decline to dismiss Moyer’s claim on statute of
limitations grounds.
2. Steve Kern
Kern stated at trial that he has worked at Brush Wellman
since 1978, and first experienced problems with his hands in 1993.
During a hunting trip that year, his hands turned white and became
numb. Before that time, he had experienced “a normal tiredness
and fatigue and aching” in his hands. (JA 168.) He did not see a
doctor about the white hands occurrence, but mentioned it during
a routine physical exam with a nurse at Brush Wellman in October
of 1993. Kern testified that the nurse “just kind of—she might have
said something. I don’t know. But it was like no big deal. And we
just proceeded with the exam.” (JA 170.) He stated that the nurse

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24
did not tell him that the hand problem might have any connection
to his work, and did not send him to see a doctor. The nurse’s
report from that appointment was submitted into evidence. As read
by the nurse at trial, the report included the following notations:
Notice midring, little fingers . . . both hands white,
blanched numb—unable to straighten. Went home
and was unable to straighten digits until he ran warm
H20 [sic] across inner wrist areas. Eventually
circulation restored and feeling returned.
Raynaud’s[?] Told him he should get it evaluated. .
. . Also told Hank Arbo, plant manager, possibility
of work-related cause. Does do job involving
vibration.
(JA 209.) At trial, the nurse did not remember specifically what she
told Kern at the appointment.
Kern testified that his hands turned white a few times when
he was swimming during the summer of 1994, and also during the
hunting season in 1994. It never occurred while he was at work,
however, and he associated the problem with cold rather than with
work-related activities. Kern testified that at his company physical
in 1994, he mentioned the problem again and the nurse “really
didn’t think much of it and just proceeded with the examination.”
(JA 172.) Early in 1996, he first suspected that his hand problem
might be work-related after he discussed the issue with Moyer. In
May 1996, Dr. Grundy told him that he had Raynaud’s disease
caused by vibration from the swager.
We reject Fenn’s assertion that Kern’s claim is time-barred
as a matter of law. The nurse’s testimony was not definitive, and
a question of material fact was presented as to whether Kern
possessed sufficient information prior to 1996 to put him on notice
that a wrong may have been committed against him. The District
Court properly concluded that the statute of limitations issue should
be sent to the jury.
3. Thomas Sechrist
Sechrist testified that in 1992, he fractured his left wrist and

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25
hurt his right hand and shoulder in a fall. Following this accident,
he began to experience weakness in his right hand that he described
to several doctors, who told him that the problem was due to old
age and the fall. In July 1993, he saw Dr. Holm, who wrote in his
notes that Sechrist had “numbness in his right hand, especially in
the lateral three fingers. He feels his right hand grasp may be
diminished.” (JA 148.) He began to experience white fingers when
he was cold. He continued to see doctors about the hand problems
in 1994 and 1995, and the doctors “kept blaming it on being an old
person.” (JA 135.) In 1996, Dr. Grundy told Sechrist that he had
Raynaud’s disease caused by vibration from the swager.
Fenn argues that Sechrist’s position on a Brush Wellman
committee organized in June 1995 to purchase a new swager shows
that he was (or should have been) aware of an injury because the
committee knew of workers’ hand complaints and the possible role
of the swager. Sechrist disputed this view at trial, testifying that the
committee only “looked at a new swager. We were just looking for
a new swager.” (JA 157.) The “Memorandum of Justification”
prepared by the committee states that:
In December 1994, the Reading Plant received word
from corporate medical staff that several bull block
operators had symptoms in their hands and wrists
that were indicative of cumulative trauma/repetitive
motion related injuries. . . . Operators attributed these
symptoms to vibration caused by swaging operations.
(JA 1421.) The report went on to state that:
The Rod & Wire Team established a committee to
develop, review and evaluate potential solutions to
this safety problem. The committee met several times
and discussed many possible scenarios. The solution
determined to be most feasible and limit injury to
employees is to purchase and install a new swaging
machine . . . .
(JA 1423.)
Although the committee report indicates that Sechrist was

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12 Because we remand for a new trial, we find it unnecessary
to consider Fenn’s additional claims that the District Court gave
improper jury instructions, erred in excluding scientific guidelines
for vibration exposure, and incorrectly ignored foreseeability as it
relates to plaintiffs’ failure-to-warn claim. In addition, our holding
renders moot Fenn’s claim that the damages awarded by the jury
26
aware of a connection between the Fenn swager and employee hand
problems in June 1995, we conclude that a question of fact
remained for the jury as to whether Sechrist knew or should have
known at the time that his hand injuries were caused by the swager.
According to his own testimony, Sechrist did not know until 1996
that his injury was caused by the swager, since his doctors had
repeatedly attributed his hand problems to old age. This Court has
concluded that under Pennsylvania law, “‘lay persons should not be
charged with greater knowledge of their physical condition than
that possessed by the physicians on whose advice they must rely.’”
Debiec, 352 F.3d at 131 (quoting Bohus, 950 F.2d at 929).
Although there is “some point in time when a patient’s own
‘common sense’ should lead her to conclude that it is no longer
reasonable to rely on the assurances of her doctor,” this Court is
“mindful that ‘to put upon [a patient] the duty of knowing the
nature of her ailment and its relation to her prior treatment before
it is ascertained with a degree of certainty by the medical profession
is a great burden to impose upon her.’” Bohus, 950 F.2d at 930
(quoting Stauffer v. Ebersole, 560 A.2d 816, 818 (Pa. Super. Ct.
1989)) (alteration in original). Based on the inaccurate diagnoses
Sechrist repeatedly received from his doctors, we approve the
District Court’s conclusion that whether Sechrist’s claim was
barred by the statute of limitations presented a question of fact for
the jury. See Debiec, 352 F.3d at 136 (concluding that the issue of
reasonable diligence was for the jury to decide where the plaintiff
consistently received inaccurate diagnoses from a doctor as to the
cause of her injury).
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s
denial of judgment as a matter of law, but will reverse the District
Court’s denial of Fenn’s motion for a new trial.12

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were excessive and that the District Court erred in granting delay
damages to the plaintiffs.
27

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