and 02-1152 W. Alan Fillebrown v. Steelcase, Inc.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 02-1080 AND 02-1152
W. ALAN FILLEBROWN
Appellee in No. 02-1080
Appellant in No. 02-1152
v.
STEELCASE, INC.; BASSICK CO.; GORDON MANUFACTURING COMPANY;
JOHN DOES 1-10 (said names being fictitious), ABC CORPS. 1-10
(said names being fictitious)
Steelcase, Inc.
Appellee in No. 02-1152
Appellant in No. 02-1080
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 96-cv-03064)
District Judge: Honorable Alfred M. Wolin
Argued December 13, 2002
BEFORE: FUENTES and STAPLETON, Circuit Judges, and
O’KELLEY,* District Judge
(Opinion Filed : February 24, 2003)
____________________________
*Honorable William C. O’Kelley, United States District Judge for the District of
Northern Georgia, sitting by designation.
David A. Mazie (Argued)
Nagel, Rice, Dreifuss & Mazie
301 South Livingston Avenue, Suite 201
Livingston, NJ 07039
Attorney for Appellee/Cross Appellant
W. Alan Fillebrown
David W. DeBruin (Argued)
Jenner & Block
601 13th Street, N.W. - 12th Floor
Washington, DC 20005
and
William R. Bumgardner
Bumgardner, Ellis, McCook & Kingsley
136 Central Avenue
Clark, NJ 07066
Attorneys for Appellant/Cross Appellee

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Steelcase, Inc.
OPINION
STAPLETON, Circuit Judge:
Appellant, Steelcase, Inc. ("Steelcase"), appeals a $1,338,980 judgment
based on a jury verdict finding it liable for a manufacturing defect in a chair it had
assembled. Appellee, W. Alan Fillebrown, has cross-appealed the judgement, claiming
that the District Court erred when it reduced the jury’s finding on damages by $290,000.
I.
Fillebrown was injured when he leaned back in his chair while at work. As
he leaned back, the metal spindle connecting the base of the chair and the seat broke, and
Fillebrown fell to the floor. Fillebrown brought this diversity action against the chair’s
manufacturer, Steelcase, and the manufacturer of the metal spindle, Gordon
Manufacturing Co. ("Gordon"). Fillebrown claimed that a manufacturing defect in the
spindle caused it to fail. Fillebrown settled with Gordon before trial.
At trial, the parties’ experts, both qualified as experts in metallurgy and
materials failure, provided competing versions of what caused the spindle to break.
Fillebrown’s expert, Dr. J. Stephen Duerr, asserted that the break in the spindle resulted
from a manufacturing defect. Duerr asserted that "particularly large machining marks"
made while manufacturing the spindle had caused the spindle to develop a fatigue crack
and eventually break. App. 180. Steelcase’s expert countered that the spindle fracture
was an overload failure resulting from prior abuse of the chair.
The jury found that the spindle broke because of a manufacturing defect
and returned a verdict of $1,510,000 against Steelcase. Steelcase filed a motion for
judgment as a matter of law, or in the alternative, a new trial. The District Court denied
the motions for judgment as a matter of law and a new trial. The District Court,
however, reduced the judgment by $290,000 to reflect pension payments to be received
by Fillebrown from his former employer.
II.
Steelcase first argues that Fillebrown’s expert’s testimony concerning what
caused the spindle’s failure was inadmissible under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Oddi v. Ford Motor Co., 234 F.3d 136
(3d Cir. 2000). Fillebrown responds that Steelcase has waived its objections to the
expert’s testimony. Fillebrown’s waiver argument fails because he did not raise the
waiver issue when Steelcase filed its renewed motion for judgment as a matter of law in
the District Court, and the Court decided the Daubert issue on its merits. Houghton v.
American Guar. Life Ins. Co., 692 F.2d 289, 294 (3d Cir. 1982) ("In the absence of
exceptional circumstances, an issue not raised in the district court will not be heard on
appeal.") (internal quotations omitted); Hamilton v. Komatsu Dresser Indus., Inc., 964
F.2d 600, 603 n.1 (7th Cir. 1992) (stating that "Plaintiffs, however, have waived these
waiver arguments by failing to raise them before the district court"). We will, therefore,
decide Steelcase’s Daubert objection on the merits.
This Court reviews a district court’s decision to admit or exclude expert
testimony for an abuse of discretion. Oddi, 234 F.3d at 146. We "will not interfere with
the district court’s exercise of discretion unless there is a definite and firm conviction tha
the court below committed a clear error of judgment in the conclusion it reached upon a
weighing of relevant factors." Id. (internal quotations omitted).
In Daubert, the Court set out four factors with which to evaluate whether
scientific evidence was admissible: (1) whether the scientific theory or technique can be
tested, (2) whether it has been subject to peer review and publication, (3) the known or
potential rate of error associated with the technique, and (4) whether the theory or
technique has gained "general acceptance." Daubert, 509 U.S. at 593-95. Our court
adds four other factors: (5) the existence and maintenance of standards controlling the

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technique’s operation, (6) the relationship of the technique to methods which have been
established to be reliable, (7) the qualifications of the expert witness testifying based on
the methodology, and (8) the non-judicial uses to which the method has been put. Oddi,
234 F.3d at 145.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999), holds that
Daubert’s gatekeeping obligation applies not only to scientific knowledge, but also to
testimony based on technical and other specialized knowledge. However, Kumho
concludes that the Daubert test for reliability is flexible and that "Daubert’s list of
specific factors neither necessarily nor exclusively applies to all experts or in every case."
Id. at 142.
The District Court, in denying Steelcase’s renewed motion for judgment as
a matter of law, held that Dr. Duerr’s testimony was admissible. It did not abuse its
discretion in so ruling.
There was no dispute that metallurgy and materials failure analysis are old,
well-established sciences. Nor was it disputed that both experts were qualified by
training and experience in these areas. Both implicitly acknowledged that a spindle like
the fractured one would not be expected to fracture as it did in the absence of a
manufacturing defect or abuse of the chair. Dr. Duerr opined that, in this instance, the
culprit was a fatigue failure resulting from a machining mark and not an overload failure
resulting from abuse as Steelcase maintained. He supported this opinion with the
following analysis:
(1) A fatigue failure would proceed from and follow a machining mark, as
this one did, and an overload failure would be so situated only as a matter of chance, a
highly unlikely alternative. There are no other likely explanations for the failure.
(2) The spindle was made of quite strong metal, and this makes it much
less likely that it was affected by abuse and overload.
(3) The fact that the crack had progressed 90 percent of the way through
the spindle before it broke in two pieces is indicative of a fatigue failure and not an
abuse/overload situation.
(4) The chair was in good condition and showed no evidence of abuse.
(5) Hairline cracks that he observed in two of the three welds on the
bottom side of the chair control were consistent with fatigue failure and inconsistent with
overload. If the problem were overload, he "would expect either one of the cracks to be
very large or . . . all three welds to be broken." App. 189.
"Daubert does not set up a test of which opinion has the best foundation,
but rather whether any particular opinion is based on valid reasoning and reliable
methodology." Kannakeril v. Terminix Inter’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997).
Dr. Duerr’s opinion was reasoned and the product of a reliable methodology. It was
appropriate for the jury to determine which of the experts’ opinions was the most
persuasive.
III.
Steelcase argues, in the alternative, that the jury verdict should be vacated
and that the case should be retried because the court failed to give New Jersey Model
Jury Charge (Civil) No. 1.17, or any other instruction, advising the jury that Fillebrown
had settled with Gordon.
A district court’s grant or denial of a new trial motion is reviewed for an
abuse of discretion. "[T]he district court’s power to grant a new trial is limited to those
circumstances where a miscarriage of justice would result if the verdict were to stand."
Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir. 1993) (internal
quotations omitted). See Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d
Cir. 1989) ("In reviewing the propriety of a jury verdict, our obligation is to uphold the
jury’s award if there exists a reasonable basis to do so."). In assessing jury instructions,
we exercise plenary review if the instructions misstate the applicable law. Greenleaf v.
Garlock, Inc., 174 F.3d 352, 362 (3d Cir. 1999). "In the absence of a misstatement,
however, we review the District Court’s decisions regarding jury instructions for abuse
of discretion." Id. We find no legal error or abuse.
At the beginning of the trial, the judge instructed the jury as follows:
During the course of the trial you’ll hear the names of
Gordon Manufacturing and Bassick Company. Gordon
manufactured and supplied the chair’s metal spindle ....

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Although Gordon and Bassick will not appear and will not be
represented during the course of the trial, you may be called
upon to evaluate their involvement and to allocate their
responsibility for this occurrence despite their absence.
You’re not to speculate as to the reason for their absence.
Such speculation plays no role in the fact-finding process.
Fill. App. 2.
After the close of the evidence and the arguments of counsel, the Court
instructed the jury to ascertain the amount of money that would "fairly and fully
compensate" Fillebrown for all of his damages and then carefully explained to the jury its
responsibilities in apportioning liability between Gordon and Fillebrown:
I remind you that Gordon manufactured the spindle. Should
you find that a manufacturing defect exists, you may have to
apportion the responsibility for that defect among Steelcase
and Gordon.
Each of their proportionate share of fault as determined by
you, the jury, shall be expressed in percentages with the
assumption that the total shares equal 100 percent. Thus, if it
is determined that Steelcase’s proportion of the chair at fault
is ten percent, then Steelcase shall only be responsible for ten
percent of the damages as determined by the jury.
Conversely, if Steelcase’s proportionate share of fault is 90
percent, then Steelcase shall be responsible for 90 percent of
the damages as determined by the jury.
App. 355-56.
Steelcase does not contend that these instructions from the Court regarding
apportionment of fault and liability contain any inaccurate statement of the law. With
respect to Gordon, the Court instructed that the jury should assess Gordon’s
responsibility after determining the total amount of damages that would fairly
compensate plaintiff for his loss and that the jury should not speculate about the reasons
for Gordon’s absence before the Court. The record provides no reason to believe the
jury did not do precisely as it was instructed.
Steelcase speculates (1) that the jury may have concluded that Gordon was
no longer a going concern and that the plaintiff’s recovery from all sources would be
limited to the amount of liability it allocated to Steelcase, and (2) that having so
concluded, it refused to follow the Court’s instructions regarding allocation between
Gordon and Steelcase. The only record basis for this concern of Steelcase is the
following segment of the closing argument of plaintiff’s counsel:
For example, you’re going to have to say X percent to
Steelcase and Y percent to Gordon, and whatever percentage,
that the higher the percentage you apply to Gordon, the less
money that Al Fillebrown would get, so, if you gave him a
hundred dollars and they’re 25 percent they’re 75 percent
responsible and Gordon is 25 percent responsible, he only
gets $75. So the amount, the higher the percentage to
Steelcase, the more of the judgment they would pay. The
higher the percentage to Gordon, the spindle manufacturer,
the less that Steelcase will pay. The higher the amount of
liability you may apportion to Gordon, the spindle
manufacturer, the less amount of money that Mr. Fillebrown
gets. Steelcase basically gets a credit for any liability you
apportion to Gordon.
App. 326-27.

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The penultimate sentence of these remarks can be understood to mean that
the higher the amount of liability the jury apportions to Gordon, the less award of money
that Fillebrown will receive in these proceedings from Steelcase. As so understood, this
sentence, as well as the remainder of these remarks, are accurate. While Steelcase argues
that this sentence was intended to communicate that Fillebrown would get nothing
beyond what he received in these proceedings, given the context, we believe it very
unlikely that the jury received this message and even less likely that it ignored the
Court’s instruction not to speculate about Gordon’s absence from the trial.
IV.
Finally, Steelcase argues that the jury’s liability apportionment of 85
percent to Steelcase and 15 percent to Gordon should be vacated because it was against
the weight of the evidence.
Fillebrown’s initial response to this argument is that Steelcase waived its
objection to the verdict by failing to move for a judgment as a matter of law at the close
of evidence. Motions for a new trial based on the fact that the jury’s verdict was against
the weight of the evidence are not barred by a party’s failure to move for judgment as a
matter of law at the close of all evidence. Greenleaf, 174 F.3d at 365. We will,
therefore, consider Steelcase’s argument on the merits.
"A court may order a new trial upon the motion of a party or sua sponte
where there is insufficient evidence to support the verdict or where the verdict was
against the weight of the evidence." Id. "[N]ew trials because the verdict is against the
weight of the evidence are proper only when the record shows that the jury’s verdict
resulted in a miscarriage of justice or where the verdict, on the record, cries out to be
overturned or shocks our conscience." Williamson v. Consol. Rail Corp., 926 F.2d 1344,
1353 (3d Cir. 1991). We review the District Court’s decision refusing to grant a new
trial on the basis that the verdict was not against the weight of the evidence for an abuse
of discretion. Greenleaf, 174 F.3d at 365.
Steelcase compares the jury’s verdict to that in Greenleaf v. Garlock, Inc.
In Greenleaf, the appellate court panel held that a jury verdict was against the weight of
the evidence and ordered a new trial. That case involved several manufacturers and users
of asbestos. The jury had returned a verdict allocating liability to the appearing
defendants and finding the non-appearing defendants not liable on basically identical
facts. Greenleaf, 174 F.3d at 367.
Our case is distinguishable from Greenleaf. Here, the jury apportioned 15
percent of the fault to Gordon and 85 percent to Steelcase. Steelcase’s argument can be
boiled down to the assertion that because Gordon manufactured the spindle, it was the
more culpable party; thus, it was error for the jury to apportion 85 percent of the liability
to Steelcase. Unlike Greenleaf, here the jury did apportion a percentage of liability to the
non-appearing defendant, Gordon, and the degree assigned was consistent with the role
that it played.
The jury’s apportionment of liability in this case does not shock the
conscience or cry out to be overturned. The jury could reasonably conclude that
Steelcase, as the ultimate manufacturer of the chair, was the more culpable party because
it was responsible for placing the defective chair into the stream of commerce. Also,
Steelcase’s trial strategy of insisting that the spindle was not defectively manufactured
had the effect of minimizing the focus placed on Gordon’s culpability.
V.
Fillebrown cross-appeals the trial judge’s decision to reduce his recovery
by $290,000. He contends that the District Court was merely speculating when it
concluded that the jury failed to account for Fillebrown’s pension in awarding damages
based on the loss of future earnings. He alternatively argues that under New Jersey law,
the jury was not required to account for Fillebrown’s pension in awarding damages.
We will disturb a district court’s determination with respect to remittitur
only for an abuse of discretion. Evans v. Port Auth. of New York & New Jersey, 273
F.3d 346, 355 (3d Cir. 2001).
The District Court’s remittitur of damages was not mere speculation.
During the testimony regarding damages, Fillebrown’s expert testified that Fillebrown’s
after-tax income, had he continued working at AT&T, would have been $88,628 per
year, making a total of $886,280 over the ten years before his retirement. Reply Brief for

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Appellant, Ex. B at 20. The expert calculated that the present value of this future lost
income was $836,000. Id. at 24. The expert then testified that this income should be
reduced by the present value of Fillebrown’s pension, which he calculated to be
$290,000. Id. at 29. The expert also calculated Fillebrown’s past wage loss as
$171,750. Id. at 31.
The jury awarded Fillebrown $886,000 for losses from future wages,
$172,000 for lost past wages, and $452,000 for pain and suffering. These numbers
understandably led the District Court to conclude that the jury adopted the expert’s
findings as to lost past wages and future wages but failed to discount the latter to present
value. The District Court also understandably concluded that the jury had also not
reduced future lost wages by the amount of Fillebrown’s pension, and it reduced the
award by that amount. We find nothing here that can accurately be described as
speculation.
Fillebrown insists that New Jersey law does not permit a reduction for
future pension benefits. He points to Rusk v. Jeffries, 110 N.J.L. 307 (N.J.Err. & App.
1933), and Bandel v. Friedrich, 562 A.2d 813 (N.J. Super. Ct. App. Div. 1989), for the
proposition that, pursuant to the collateral source rule, pension payments should not
reduce the plaintiff’s recovery.
In Kiss v. Jacob, 650 A.2d 336 (N.J. 1994), the New Jersey Supreme Court
held that N.J.S.A. 2A:15-97 did away with the collateral-source rule. Id. at 337.
N.J.S.A. 2A:15-97 provides that:
In any civil action brought for personal injury or death ... if a
plaintiff receives or is entitled to receive benefits for the
injuries allegedly incurred from any other source other than a
joint tortfeasor, the benefits, other than worker’s
compensation benefits or the proceeds from a life insurance
policy, shall be disclosed to the court and the amount thereof
which duplicates any benefit contained in the award shall be
deducted from any award recovered by the plaintiff, less any
premium paid to an insurer directly by the plaintiff or by any
member of the plaintiff’s family on behalf of the plaintiff for
the policy period during which the benefits are payable....
In the course of holding that the statute did away with the collateral source
rule, the Kiss court noted that the collateral source rule included amounts recovered
"from pensions under special retirement acts." Kiss, 650 A.2d at 338.
It seems clear that double recovery from pension payments to the injured is
within the scope of 2A:15-97. In Parker v. Esposito, 677 A.2d 1159 (N.J. Super. Ct.
App. Div. 1996), the court observed:
Our Supreme Court addressed [N.J.S.A. 2A:15-97] in Kiss v.
Jacob .... There, the Court held that the statute did not apply
to the proceeds of a settlement with a defendant determined
not to have been a tortfeasor. The Court ruled that the statute
focused on the types of benefits contemplated by the
common-law collateral source rule which the statute
eliminated. Those common-law collateral sources included
"life- or health-insurance policies, [benefits] from
employment contracts, from statutes such as workers’
compensation acts and the Federal Employers’ Liability Act,
from gratuities, from social legislation such as social security
and welfare, and from pensions under special retirement
acts."
Id. at 1161-62 (citations omitted). See also Thomas v. Toys R Us, Inc., 660 A.2d 1236,
1244 (N.J. Super. Ct. App. Div. 1995) ("The benefits that the Legislature focused upon
in enacting N.J.S.A. 2A:15-97 include life- or health-insurance policies, social security
and welfare payments, and pension benefits.").
Both cases cited by Fillebrown, Rusk and Bandel, were based on causes of
action arising before the effective date of 2A:15-97. Therefore, they provide no
support for Fillebrown’s position that New Jersey law does not allow pension payments

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to be taken into account. See Bandel v. Friedich, 584 A.2d 800, 804 (N.J. 1991).
Under New Jersey law, pension benefits must be excluded to prevent
double recovery.
Because the District Judge correctly decided that the jury had failed to
account for Fillebrown’s pension when it made its award, its reduction of $290,000 from
lost future earnings was not an abuse of discretion.
VI.
The judgment of the District Court will be affirmed.
____________________________
Circuit Judg

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