NOT PRECEDENTIAL UNITED STATES COURT OF APPEAL FOR THE THIRD CIRCUIT No. 04-1965… v. Ingersoll-Rand Company

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 04-1965
SEAN SELL;
LYNN SELL, H/W,
v.
INGERSOLL-RAND COMPANY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-02957)
District Judge: Hon. Berle M. Schiller
Argued June 2, 2005
BEFORE: FUENTES, GREENBERG and COWEN, Circuit Judges
(Filed June 29, 2005)
John E. McKeever, Esq. (Argued)
Michael J. O’Neill, Esq.
Kristin M. Barrett, Esq.
DLA Piper Rudnick Gray Cary
1650 Market Street
4900 One Liberty Place
Philadelphia, PA 19103
Counsel for Appellant

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Erik K. Vogel, Esq. (Argued)
Wapner, Newman, Wigrizer & Brecher
115 South 21 Streetst
Philadelphia, PA 19103
Counsel for Appellees
OPINION
COWEN, Circuit Judge.
In this product liability action, Defendant-Appellant Ingersoll-Rand appeals from a
final order entered by the District Court denying its post-trial motion for judgment as a
matter of law or for a new trial. Ingersoll-Rand argues that the District Court issued
several erroneous evidentiary rulings. We have jurisdiction under 28 U.S.C. § 1291.
Because we write for the parties only, we do not set out the facts. For the following
reasons, we will affirm.
Ingersoll-Rand challenges several of the District Court’s evidentiary rulings. First,
it contends that the District Court erred by admitting into evidence testimony regarding a
post-accident modification to the drill rig. Ingersoll-Rand argues that such testimony
should have been excluded pursuant to Federal Rules of Evidence 407 or 403. Second,
Ingersoll-Rand argues that the District Court violated Fed. R. Evid. 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by allowing the product design
expert of Plaintiffs-Appellees Sean and Lynn Sell (collectively “Sells”) to testify about a

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particular alternative design. We review the denial of a request for a new trial premised
on a district court’s allegedly erroneous rulings on the admissibility of evidence for abuse
of discretion. Affiliated Mfrs., Inc. v. Aluminum Co. of America, 56 F.3d 521, 525 (3d
Cir. 1995). If the ruling as to the admissibility of evidence involves application of the
Federal Rules of Evidence, it is subject to an abuse of discretion standard of review. Id.
at 526. If the ruling hinges upon an interpretation of a rule of evidence, however, we
apply plenary review. Id. If the district court’s determination of admissibility is based on
a factual finding, we must determine whether that finding was clearly erroneous. Id.
1. Admission of Post-Accident Modification
The Sells’ product design expert opined that Ingersoll-Rand should have included
a metal bracket over the auxiliary cut-out, to be removed by the operator’s assistant
whenever additional rods were required to be moved from the auxiliary carousel to the
main carousel. This alternative design was in fact the post-accident change instituted by
Mr. Sell’s employer, who was not a party to the lawsuit. In addition to permitting the
expert’s testimony as evidence of an alternative design, the District Court admitted
evidence regarding the metal bracket’s actual use on the oil rig. Ingersoll-Rand asserts
that such evidence should have been excluded under Fed. R. Evid. 407 or Fed. R. Evid.
403. As explained below, the District Court properly admitted this evidence.
Rule 407

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Federal Rule of Evidence 407 provides, in relevant part, that evidence of a
remedial measure taken after the occurrence of harm caused by an event “is not
admissible to prove . . . a defect in a product, [or] a defect in a product’s design.” Rule
407 has been consistently applied to exclude evidence of subsequent remedial measures
taken by the party against whom the post-accident modification is offered. Ingersoll-
Rand maintains, however, that pursuant to this Rule, the District Court should have
excluded evidence relating to the subsequent remedial measure taken by Mr. Sell’s
employer, even though he is not a party to the instant suit. This argument is directly
foreclosed by our decision in Diehl v. Blaw-Knox, 360 F.3d 426 (3d Cir. 2004), which
held that “Rule 407 does not bar evidence of remedial measures taken by a non-party.”
Id. at 428; see id. at 430. Ingersoll-Rand suggests that Diehl was wrongly decided. We
are not at liberty, however, to overrule it. Accordingly, the District Court did not err in
refusing to apply Rule 407 to exclude evidence of a non-party’s post-accident addition to
the oil rig.
Rule 403
Ingersoll-Rand alternatively asserts that the District Court abused its discretion in
not excluding evidence that Mr. Sell’s employer installed a metal bracket over the drill’s
auxiliary cut-out following Mr. Sell’s accident under Rule 403. Rule 403 states that
“[a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

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jury.” A district court’s Rule 403 balancing analysis is accorded substantial deference,
and should not be disturbed unless irrational or arbitrary. Ansell v. Green Acres
Contracting Co., Inc., 347 F.3d 515, 525 (3d Cir. 2003).
In determining that the probative value of the metal bracket’s actual use was not
substantially outweighed by any unfair prejudice, the District Court noted that the metal
bracket was properly admitted as one of the alternative designs proposed by the Sells’
expert. Because Ingersoll-Rand controverted this design alternative as unnecessary and
as posing a grave safety concern, evidence of actual use of the bracket by Mr. Sell’s
employer was relevant to show that it had, in fact, been used safely.
We discern no reason to disturb the District Court’s ruling. Ingersoll-Rand
stresses that the Sells’ case highlighted the absence of any accidents in the two years that
had passed since the metal bracket was installed on the drill. Although not extraordinarily
probative on the issue of whether the drill was defective as designed, that no accidents
occurred in the relatively short time since installation of the metal bracket does have some
probative value. In addition to its probative value as an alternative feasible design, this
Court and the Pennsylvania Supreme Court have recognized that an inference of product
defectiveness may appropriately be drawn from the adoption of a subsequent remedial
measure employed to improve a product’s safety. See Petree v. Victor Fluid Power, Inc.,
831 F.2d 1191, 1198 (3d Cir. 1987); Duchess v. Langston, 769 A.2d 1131, 1142 (Pa.
2001). This observation is apropos here, as state of the art is not in issue. See Diehl, 360

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F.3d at 432. Further, as noted by the District Court, evidence of the addition of the
bracket served to refute Ingersoll-Rand’s evidence that the bracket created a new and
greater danger. Ingersoll-Rand contends, however, that the multiple references to the
metal bracket modification and the lack of any accidents since its inception created
prejudice in that it “likely caused the jury to discount Ingersoll-Rand’s reasons why the
bracket created greater danger.” (Appellant’s Br. at 18.) This argument goes to the
weight of this evidence, and not its admissibility. The jury was free to discount the
weight of the metal bracket’s use as evidence of its safety in light of the relatively short
time that it had in fact been used. Ingersoll-Rand was likewise free to warn the jury that
the dangers created by the use of the metal bracket would become more evident over time.
Significantly, the jury was informed that until this suit, there had been no claims against
Ingersoll-Rand since it manufactured its first T4W drill over thirty years ago, and thus it
could assess the relevance of the bracket’s use against this backdrop. In short, Ingersoll-
Rand’s arguments respecting unfair prejudice are directed to challenging the weight of
this evidence, and not its admissibility. At most, Ingersoll-Rand suffered slight prejudice,
but in no event did any prejudice substantially outweigh the metal bracket’s probative
value.
2. Admission of Expert Testimony on Alternative Design
The District Court did not abuse its discretion in permitting the Sells’ product
design liability expert to testify about an alternative design involving an automatic

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indexing pin system. After conducting a Daubert hearing on six proposed alternative
designs proffered by the Sells’ expert, the District Court limited the expert’s testimony to
two alternative designs. The first, discussed above, was the post-accident modification
actually implemented by Mr. Sell’s employer. The second involved an automatic locking
pin that would positively prevent the main carousel from rotating in either direction in the
event that it bounced out of the tower, when both carousel and tower are stored on top of
the rig. Ingersoll-Rand challenges admission of the latter alternative design under F.R.E.
702 and Daubert, charging that the record’s failure to substantiate actual rotation of the
drill renders this testimony irrelevant.
Rule 702 permits introduction of expert testimony that will assist the trier of fact
provided that: “(1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” To be admissible under Rule
702, the district court must ensure that the evidence offered is both relevant and reliable.
Daubert, 509 U.S. at 589; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
The Sells’ expert attested that a drill rod can fall out of the auxiliary cut-out even if
the rig’s brakes are operating properly, the main carousel is stored in the tower, the main
carousel and tower are both in the horizontal position on top of the rig, and the J-lock is in
place around the rod in the auxiliary cut-out. Specifically, a drill rod may fall out of the
auxiliary cut-out under these conditions, according to the expert, if the wheels of the rig

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sufficiently “hop” when moving the drill to a new site on rough terrain, such that it causes
the main carousel to bounce out of the tower and rotate to a degree that enables a rod
without the J-lock attached to move into the auxiliary cut out. This testimony is pertinent
to the Sells’ theory of how the accident occurred.
Ingersoll-Rand claims that the record does not substantiate the theory that the
automatic pin indexing scheme would have prevented the accident. It specifically points
to the lack of any direct evidence of carousel bounce and rotation to the degree required
for a rod without the J-lock to shift position. Contrary to this contention, there is ample
factual support for this expert testimony in the record, albeit circumstantial. The drill
operator testified that he observed the wheels of the rig hop immediately before the
accident as he was repositioning the rig over the next drilling location, and that the
carousel could potentially rotate if it bounces out of the tower. On prior occasions the
drill operator witnessed the carousel bounce as high as eighteen inches resulting from
wheel hop upon movement along rough terrain. Ingersoll-Rand’s expert testified that the
carousel could rotate clockwise if it rose five and one-third inches from its stowed
position. Although the operator did not see whether the main carousel bounced out of the
tower or rotated as a result of the wheel hop on this particular occasion, he did observe
immediately thereafter that the main carousel was in a rotated position on the ground.
Ingersoll-Rand points to its expert’s testimony that, given the positioning of the
dislodged rod in relation to the J-lock rod following the incident, the main carousel would

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have had to rotate 315 degrees for the accident to have occurred as the Sells’ expert
propounded, and that rotation to that extent is impossible. In support of this assertion, it
notes undisputed testimony that the brakes on the carousel, which slow down rotation,
were properly functioning on the day of the accident. It is also undisputed, however, that
the brakes are intended not to prohibit rotation, but to regulate the speed of the carousel.
The jury was free to discredit the conclusion of Ingersoll-Rand’s expert that a rotation of
315 degrees was required for events to unfold as the Sells’ witnesses described, and that
such rotation was impossible.
The Sells’ product design expert’s testimony regarding the automatic indexing pin
design was relevant, and the District Court did not abuse its discretion in admitting it.
3. Conclusion
For the foregoing reasons, the judgment of the District Court entered on March 30,
2004, will be affirmed.

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