Nos. 01-1589/ 01-1742 VICTOR JOHNSON v. Vanguard Manufacturing, Inc.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-1589/ 01-1742
VICTOR JOHNSON,
Appellant (01-
v.
VANGUARD MANUFACTURING, INC.;
And LYNN LADDER AND SCAFFOLDING CO., INC.
Vanguard Manufacturing, Inc.,
Appellant (01-
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-03171)
District Judge: Honorable Berle M. Schiller
Submitted Under Third Circuit LAR 34.1(a)
February 25, 2002
Before: ROTH and FUENTES, Circuit Judges
GIBSON*, Circuit Judge
(Opinion filed May 8, 2002 )
* Honorable John R. Gibson, Senior Circuit Court Judge for the Eighth Circuit,
sitting by designation. O:\UNPUBLIS\2001\011589u.wpd
- OPINION-
Roth, Circuit Judge.
Plaintiff Victor Johnson appeals the judgment of the United States District Court
for the Eastern District of Pennsylvania. Johnson sought damages in a products liability
action against Vanguard Manufacturing, Inc., and Lynn Ladder and Scaffolding Co., Inc.
Johnson’s claim arose from a construction accident that occurred on June 4, 1996.
Johnson and a co-worker, each standing on his own scaffold, were engaged in the
demolition of a wall. They successfully toppled the wall, but a few moments after the
wall gave way, Johnson’s scaffold collapsed. As a result, Johnson fell and was injured.
Johnson originally filed a complaint in the Court of Common Pleas of Philadelphia
County, claiming that the scaffold was defectively designed and manufactured by
defendant Vanguard Manufacturing, Inc., and sold by defendant Lynn Ladder and
Scaffolding Co., Inc. On June 19, 1998, the defendants removed the case to the United
States District Court for the Eastern District of Pennsylvania. After a two day trial, the
jury returned a verdict in favor of Vanguard. This appeal followed.
At trial, Johnson presented his testimony, the testimony of his co-worker, and that
of a single expert. The expert was Dr. Campbell Laird, a metallurgist and accident

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reconstructionist from the University of Pennsylvania School of Engineering and
Applied Science. Based on his investigations, Dr. Laird testified that a pin on the
scaffold fractured from fatigue in the course of normal operations, that the pin was
manufactured from the wrong type of iron, and that the fracture of the pin and resulting
instability of the scaffold was the direct cause of Johnson’s injury. While Johnson was
prepared to call an expert in the field of accident reconstruction, he rested his case at the
conclusion of Dr. Laird’s testimony.
The defense called several expert witnesses. The defense metallurgist explained
that the normal use of the scaffold would not cause a fatigue fracture of the pin,
contradicting Laird’s testimony. The accident reconstructionist employed by the defense
explained that the accident occurred as a result of the scaffold tipping as Johnson pushed
on the wall. He testified that the pin fracture might have resulted from falling scaffold
but that the fracture itself did not cause the collapse.
The jury concluded that while the scaffold was defective, the defect was not a
substantial factor in causing Johnson’s accident, and found in favor of Vanguard.
Johnson contends that the District Court abused its discretion in excluding part of
Dr. Laird’s testimony as to accident causation,and that this exclusion prevented Johnson
from properly presenting his case. During Johnson’s direct examination of Dr. Laird,
Vanguard objected when he was questioned as to observations made in the preparation of
his report. The objection was based on the fact that the observations were not recorded
in Dr. Laird’s report. Pursuant to Fed. R. Civ. P. 26 (a)(2)(B), an expert witness’s report
must contain a complete statement of all opinions to be expressed and the data or other
information considered by the witness in forming those opinions. A party that fails to
disclose evidence required by Rule 26 (a) will not be allowed to use that evidence unless
the failure to disclose the evidence is harmless. See Fed. R. Civ. P. 37 (c)(1).
After reviewing the record, we find that the trial court did not abuse its discretion
in excluding part of Dr. Laird’s testimony. It was within the court’s discretion to find
that the testimony that Johnson attempted to elicit from Dr. Laird was properly excluded
since it was not provided in his expert report as required by Fed. R. Civ. P. 26 (a)(2)(B).
Moreover, this evidentiary exclusion did not preclude Dr. Laird from testifying on the
issue of causation. The record shows that Dr. Laird presented his testimony as to
causation later in his testimony.
For the foregoing reasons, we will affirm the judgment of the District Court. We
will, however, deny appellee’s request for an award of sanctions and costs under Fed. R.
App. P. 38 and 28 U.S.C. 1927.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/Jane R. Roth
Circuit Judge

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