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United States District Court, E.D. Pennsylvania.
Craig HILBURN
v.
DEERE & COMPANY.
CIV. A. No. 88-3692.

Aug. 7, 1990.
 George J. Badey, III, Sheller, Ludwig & Badey, Philadelphia, Pa., for plaintiff.

 John J. Barrett, Jr., Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER
 
 DUBOIS, District Judge.

 *1 Presently before the Court is the Motion of defendant, Deere & Company  (hereinafter referred to as "Deere" or "defendant"), for Judgment Notwithstanding the Verdict or, in the alternative, for a New Trial.   Also before the Court is the Motion of plaintiff, Craig Hilburn, to Amend the Judgment to include Delay Damages.   For the reasons stated below, defendant's Motion will be denied and plaintiff's Motion will be granted.

 The case arises out of injuries sustained by plaintiff on September 12, 1986, while he was working at a construction site in Bucks County, Pennsylvania.   At the time of the accident, plaintiff's employer, Jeff Sparks, was operating a tractor mounted backhoe/loader (the "backhoe/loader") manufactured by defendant.   As the backhoe/loader passed plaintiff, the left stabilizer of the backhoe, which was partially extended, struck and injured plaintiff's left leg.

 At trial, plaintiff proceeded on the theory that the backhoe/loader was defectively designed under §  402A of the Restatement (Second) of Torts.   On the seventh day of trial, the jury returned a verdict for plaintiff and against defendant in the amount of $361,458.00.   In answer to special interrogatories, the jury found that the backhoe/loader was defective and the defect was the proximate cause of plaintiff's injuries.

 Defendant filed its post-trial Motion, asserting 35 grounds as support.   [FN1]  Thereafter, in defendant's brief, defendant waived one ground  [FN2], conceded another ground as moot  [FN3], and grouped the remaining grounds into seven categories, as follows:  (1) elements of a §  402A action; (2) testimony of plaintiff's expert, Dr. Stephen B. Wilcox;  (3) evidentiary objections;  (4) jury instructions;  (5) conduct of counsel;  (6) amount of verdict;  and (7) jury interrogatories.

 The Court will consider each of defendant's grounds, as grouped by defendant, below.

 I. Elements of §  402A Action

 Deere argues that plaintiff failed to establish a product defect or that such a defect was the proximate cause of plaintiff's injuries.   The Court disagrees.

 Plaintiff offered alternative theories to support his claim of a design defect.   First, under the assumption that the stabilizers were not intended to be extended while the backhoe/loader was moving, plaintiff argued that the backhoe/loader was defective for not including one of several proposed interlock devices.   These interlock devices, as proposed by plaintiff, would have required the operator to retract the stabilizers before moving the machine.   Alternatively, under the assumption that it was appropriate to move the backhoe/loader with the stabilizers extended, plaintiff argued that the backhoe/loader was defective for not including a warning device to alert the operator that the stabilizers were, in fact, extended.

 Plaintiff's expert, Dr. Stephen B. Wilcox, based his testimony on the alternative uses of the machine.   Dr. Wilcox opined that the backhoe/loader was defective for not including either an interlock device or a warning system.  [FN4]  Furthermore, plaintiff offered related testimony and exhibits as to the necessity and feasibility of such safety devices. [FN5] Accordingly, the Court finds that there was sufficient evidence from which the jury could have reasonably concluded that, absent such safety devices, the backhoe/loader was defective.  See, e.g. Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir.1976), cert. denied, 97 S.Ct. (1977); Dreyer v. Arco Chem. Co., 801 F.2d 651, 654 (3d Cir.1986), cert. denied, 107 S.Ct. 1348 (1987).

 *2 On causation, Deere argues that there was not sufficient evidence that plaintiff's proposed safety devices would have prevented the accident.   The Court disagrees.   First, it is uncontested that, as to the interlock devices, such a mechanism would have prevented the machine from moving with the stabilizers extended.   Accordingly, there is no question that, as to these devices, there was sufficient evidence from which the jury could have found causation.   Second, as to plaintiff's proposed warning devices, Dr. Wilcox testified that such a warning light or buzzer would be visible to and noticed by an operator of the machine. [FN6]  Furthermore, Mr. Sparks, who was operating the machine at the time of plaintiff's accident, testified that he is generally aware of and responsive to the various gauges on the machine.  [FN7]  There was, therefore, sufficient evidence before the jury on the issue of causation with respect to such warning devices.

 II. Testimony of Plaintiff's Expert, Dr. Stephen B. Wilcox

 A threshold argument raised by Deere is that the Court erred in qualifying Dr. Stephen B. Wilcox as an expert witness for plaintiff's case.   The Court disagrees.

 In answers to interrogatories, plaintiff's counsel identified Dr. Wilcox as a  "human factors engineer"  [FN8] who would testify as to safety issues regarding the design of the backhoe/loader and "human factors issues associated with equipment operation."  [FN9]  At trial, Dr. Wilcox testified as to plaintiff's proposed safety devices for the backhoe/loader. [FN10]  Such testimony was consistent with Dr. Wilcox's expertise in product design and the application of human mechanics to the design process. [FN11]

 Based on the foregoing, the Court rejects Deere's argument that the Court improperly permitted Dr. Wilcox to testify on subject matters outside of his expertise.  See, e.g. Salem v. United States Lines Co. 370 U.S. 31, 35, 82 S.Ct. 1119, 1122 (1962), cited in Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 682 (3d Cir.1980);  see also Knight v. Otis Elevator Co., 596 F.2d 84, 87 (3d Cir.1979).

 Furthermore, Deere argues that Dr. Wilcox's testimony was insufficient to support plaintiff's claims of a design defect.   However, such an argument by Deere mischaracterizes plaintiff's case.   Plaintiff did not rely on Dr. Wilcox's testimony alone to support his claim.   On the contrary, plaintiff relied on several witnesses and exhibits as to the backhoe/loader's design defect. [FN12]  Taking all the evidence in its totality, including Dr. Wilcox's testimony, there was sufficient evidence from which the jury could reasonably have found a product defect.

 III. Evidentiary Objections

 Deere argues that the Court erred in several of its evidentiary rulings.   The Court disagrees.

 Deere argues that the Court should not have permitted Dr. Wilcox from reading parts of the deposition testimony of William Lux, a former Vice President of Engineering at Deere.   Deere contends that the Lux deposition was inadmissible hearsay.   The Court rejects Deere's position with respect to plaintiff's use of the Lux deposition for the following reasons.

 *3 First, under Fed.R.Evid. 703, the underlying facts upon which an expert bases an opinion need not be admissible in evidence if such facts are of the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.   Here, Dr. Wilcox testified that the facts in the Lux deposition on which he relied were of a type on which he customarily relied in his work as an expert. [FN13]  Furthermore, the Court finds that the facts in the Lux deposition on which Dr. Wilcox relied are of a type reasonably relied upon by experts in Dr. Wilcox's field in forming opinions or inferences on the subject of a product's design.   Therefore, Dr. Wilcox's reliance on parts of the Lux deposition was appropriate and there was no error in permitting him to read those parts of the Lux deposition into the record.

 Second, Mr. Lux was produced pursuant to a Notice of Deposition under  Fed.R.Civ.P. 30(b)(6).   Although there was some dispute about whether Mr. Lux could testify at the deposition as a 30(b)(6) witness because of the breadth of the Notice of Deposition, it is clear from all of the evidence that Mr. Lux was the most knowledgeable person Deere could produce with respect to the engineering and design of the backhoe/loader.   Taking all those facts into consideration, and notwithstanding the fact that at the time of the deposition Mr. Lux was no longer an employee of Deere and instead was a paid consultant, the Court finds that, with respect to the parts of the deposition on which Dr. Wilcox relied, and about which he testified, all of which related to the engineering and design of the backhoe/loader, Mr. Lux was a 30(b)(6) witness. As such, those parts of the Lux deposition were properly received in evidence.  [FN14]

 Lastly, Dr. Wilcox stated that he relied, only in part, on the Lux deposition to form his opinion that the machine should not be moved with the stabilizers extended.   In addition to Mr. Lux's deposition testimony on that subject, there was evidence that there was no reason to move the backhoe/loader with the stabilizers extended.   Specifically, that part of Dr. Wilcox's testimony was also based on the testimony of Jeff Sparks, the plaintiff, and what was set forth in the Operator's Manual for the machine.   As such, the use of the Lux deposition testimony by plaintiff to support the opinion of Dr. Wilcox that the backhoe/loader should not have been moved with the stabilizers extended was, at worst for plaintiff, harmless error.  See, e.g., Lockart vs. Westinghouse Credit Corp., 879 F.2d 43, 57 (3d Cir.1989);  McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir.1985).

 Deere argues that the Court should have permitted the operator of the machine, Mr. Sparks, to answer a specific question concerning the feasibility of the interlock device with the uses of the machine. [FN15]  That hypothetical question by Deere's counsel was addressed to Mr. Sparks as if he were an expert witness.   However, Mr. Sparks was never identified as an expert witness in pretrial submissions.   Since the question was inappropriate for Mr. Sparks as a fact witness, the Court properly sustained the objection. [FN16]

 *4 Deere also argues that the Court erred in not permitting Mr. Lux to testify that no manufacturers in the industry employ the safety devices proposed by plaintiff.   The Court properly excluded such testimony.   It is well settled that state-of-the-art evidence is inadmissible in a strict liability action under §  402(A).  See, e.g., Santiago v. Johnson Machine and Press Corp., 834 F.2d 84 (3d Cir.1987);  Lewis v. Coffing Hoist Division, Duff-Norton, 515 Pa. 334, 528 A.2d 590 (1987).

 Furthermore, Deere objects to the Court's rulings on the admissibility of certain exhibits.   Deere argues that the Court should have excluded plaintiff's life expectancy tables. [FN17]  Deere contends that the tables were irrelevant because plaintiff withdrew his claim for future lost earnings.   However, Deere's contention overlooks the relevancy of the tables to determining the extent of plaintiff's injuries.   There was evidence before the jury that plaintiff would have a permanent problem with his leg and knee.  [FN18]  Accordingly, the Court admitted plaintiff's life expectancy tables as relevant to the issue of plaintiff's future damages.

 Deere also objects to the Court's decision not to allow Mr. Lux to identify a poster, which depicted a backhoe/loader without any safety devices, as obtained from a learned treatise.   The Court allowed Mr. Lux to testify about the poster, which he did. [FN19]  However, because the Court concluded that Deere's effort to introduce evidence that the poster was obtained from a learned treatise was a back-door attempt to present to the jury state-of-the-art evidence which previously had been excluded by the Court, the Court would not permit Mr. Lux to identify the poster as one he obtained from a learned treatise.

 Finally, the Court rejects Deere's contention that plaintiff waived its right to object to one of defendant's exhibits (Defendant's Exhibit No. D-9, a booklet on backhoe/loaders).   Plaintiff objected to Deere's exhibit at trial  [FN20] and the Court sustained plaintiff's objection following a discussion at sidebar. [FN21]

 IV. Jury Instructions

 Deere argues that the Court erred in its charge to the jury as to the meaning of defect.   The Court disagrees.

 The Court charged the jury based on the exact wording of §  8.02 of the Pennsylvania Suggested Standard Jury Instructions, as follows:  "The product must therefore be provided with every element necessary to make it safe for use and without any condition which makes it unsafe for use."  [FN22]

 According to Deere, the Court's instruction was incomplete because it failed to ask whether the product was safe for its "intended" use.   The Court rejected using such language in its charge because there were no allegations in the case of a misuse defense.   Furthermore, any reference by the Court to "intended use" might have confused jurors and led them to conclude that plaintiff had to proceed on only one of its alternative theories as to the machine's use.   Additionally, the Court finds that any error resulting from its charge to the jury on "use", as opposed to "intended use", was harmless. See, e.g. Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 57 (3d Cir.1989);  McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir.1985).

 *5 Deere also argues that the Court erred in not reading Deere's proposed jury instruction concerning open and obvious dangers.   Specifically, Deere wanted the Court to charge the jury that a manufacturer is not required to give a warning where a danger is open and known. [FN23]

 The Court permitted counsel for Deere to argue to the jury in closing that the stabilizers, when extended, were an open and obvious danger. [FN24] However, as to the charge, the Court instructed the jury on plaintiff's burden of establishing a cause of action under §  402A, and specifically, on the extent to which a manufacturer may be liable for a failure to warn. [FN25]  The Court, having properly instructed the jury on all the elements of a §  402A action, rejects Deere's argument that the Court erred in not reading Deere's point for charge on open and obvious damages.

 V. Conduct of Counsel

 Deere argues that it is entitled to a new trial based on the conduct of plaintiff's counsel.   The Court disagrees.

 First, Deere argues that plaintiff's counsel improperly suggested to the jury that defendant sprung new evidence on plaintiff on the eve of trial. Specifically, Deere argues that plaintiff's counsel made numerous references to the jury as to defendant's so-called "new theories" and "brand new factual premises."   Because of such statements by plaintiff's counsel, the Court properly instructed the jury to disregard such statements, as follows:

 "You [plaintiff's attorney] keep calling it a brand-new theory....  I told you that in my judgment there was evidence that it was not a brand-new theory.... It concerns the uses of the machine and I'm going to direct that you refer to it as the uses of the machine and you can be specific....  And I must tell you, I hadn't thought I was going to explain this to the jury, but you keep harping on it and I wanted the jury to understand [this]...."  [FN26]

 Furthermore, Deere states that, in closing arguments, plaintiff's counsel improperly suggested to the jury that it may not get all the evidence it needed.   Deere raised this objection during plaintiff's closing and the Court instructed the jury at that time, as follows:

 "Well, I'm not going to interrupt the closing to tell you about the exhibits.  But I want you to know that we're not going to keep anything from you at all. I am going to determine what exhibits should go out with you preliminarily, and, if you want to see any exhibit, all you have to do is ask for it.   I will then hear counsel, and if there is no valid objection to letting you see the exhibit, then you'll see it."  [FN27]

 As to both of the above instances, the Court fully remedied any potential prejudice which might have resulted from counsel's conduct through the Court's curative instructions to the jury.  See, e.g. Arnold v. Eastern Airlines, Inc., 681 F.2d 186, 197 (4th Cir.1982), cert. denied, 460 U.S. 1102 (1983). Accordingly, the Court rejects Deere's argument for a new trial based on the conduct of plaintiff's counsel.

 VI. Amount of Verdict

 *6 Deere argues that the jury's award of approximately $325,000 for plaintiff's pain and suffering was excessive, and, as such, entitles Deere to a new trial. [FN28]  The Court disagrees.

 First, it is well settled that a jury has great latitude in determining what is fair and adequate compensation for a plaintiff's injuries.  See, e.g. Mainelli v. Haberstroh, 237 F.Supp. 190 (M.D.Pa.1964), aff'd 344 F.2d 965 (3d Cir.1965).   Furthermore, it is well settled that a jury verdict should only be set aside when it is "so grossly excessive as to shock the judicial conscience."  Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d 215 (3d Cir.1977), cert. denied 434 U.S. 1034 (1978), quoting Russell v. Monogahela Ry. Co., 262 F.2d 349, 352 (3d Cir.1952);  see also Davis v. Omitowoju, 883 F.2d 1155 (3d Cir.1989).

 Here, the Court finds no reason to set aside the jury's verdict.   On the contrary, the Court finds that the record is replete with evidence upon which the jury could have reasonably based its award.   As a result of the accident, plaintiff suffered a compound fracture of the left tibia.   Following the accident, plaintiff was rushed to the hospital, at which time he required large doses of morphine for his pain  [FN29] and an initial operation to set his leg in a splint. [FN30]  In total, plaintiff had to undergo eight separate operative procedures, including the insertion of a Greenfield filter in his leg to prevent the risk of blood-clotting. [FN31]  Furthermore, following plaintiff's release from the hospital on September 30, 1986, he was in a full leg cast for three months, a short leg cast for one month, and then on crutches for approximately four months. [FN32]

 Plaintiff testified that he has had daily soreness in his knee and he walks with a limp. [FN33]  Furthermore, he testified that, at present, he can no longer play golf, rugby, or intramural football, all of which he did on a regular basis before the accident. [FN34]  Although plaintiff's doctor, Dr. J. Michael Whitaker, testified that plaintiff may not have to incur future medical costs for his injuries, Dr. Whitaker stated that he advised plaintiff not to participate in many physical activities. [FN35]

 For all the foregoing reasons, the Court finds that the jury's award was not excessive as a matter of fact or law.

 VII. Jury Interrogatories

 The Court accepted Deere's proposed jury interrogatory regarding the question whether the product was defective.   That interrogatory read as follows:  "Was the backhoe/loader defective?"  [FN36]  In its post-trial motion, Deere argues for the first time that its requested interrogatory was inadequate. Deere contends that, based on the general nature of the interrogatory, it is unclear what design defect the jury accepted, and specifically, whether the jury predicated its verdict on a design defect which had sufficient evidence. The Court rejects Deere's argument for the following reasons.

 First, the Court accepted Deere's proposed jury interrogatory on the question of whether the product was defective.   The proposed interrogatory was never withdrawn and Deere never suggested that it should be amended.   Under those circumstances, the Court finds that Deere has waived its right to object to the use of the interrogatory.  See, e.g. United States v. Desmond, 670 F.2d 414, 418 (3d Cir.1982).   Furthermore, it is well settled that if a party does not request a special verdict identifying the specific product defect, the party cannot complain on appeal of its failure to do so.  See, e.g. Toth v. Corning Glass Works, 411 F.2d 912, n. 2 (6th Cir.1969);  see also Great Coastal Express Inc. v. International Brotherhood of Teamsters, 511 F.2d 839, 845 (4th Cir.1975), cert. denied 425 U.S. 975 (1976).

 *7 Finally, as set forth above, the Court finds that there was sufficient evidence from which the jury could have reasonably concluded that the backhoe/loader was defective for not including an interlock device or a warning system.   Stated otherwise, there was sufficient evidence to support the general interrogatory.

 For all the foregoing reasons, the Court rejects Deere's argument based on the jury interrogatories.

 VIII. Delay Damages

 Under Pennsylvania Rule 238 ("Rule 238")  [FN37], which applies in this diversity-based tort action, see, e.g. Fauber v. KEM Transp. & Equip. Co., 876 F.2d 327, 328 (3d Cir.1989), plaintiff seeks delay damages of $27,209.40. Although Deere concedes that it is not exempted from Rule 238 based on its settlement offer  [FN38], Deere argues that plaintiff should not receive delay damages because:  (1) plaintiff did not prove Deere caused the delays; and (2) Rule 238 is unconstitutional.   The Court rejects Deere's arguments for the reasons set forth below.

 First, under Rule 238, plaintiff is not required to prove that defendant was responsible for the delays in order to recover delay damages.   On the contrary, the burden rests on defendant to show that plaintiff caused the delays if defendant is to reduce plaintiff's delay damages. [FN39]  Absent such a showing by defendant, a court should award plaintiff the full amount of delay damages.   See Rule 238, explanatory comment;  see, e.g. Fauber, 876 F.2d 332 ("Rule 238, in all its versions, permits a successful tort plaintiff to recover prejudgment interest on his claim unless the defendant can show the plaintiff himself caused the delay");  Lincoln & Lincoln v. Jan Packaging, Civ. No. 89-2086, slip. op. (E.D.Pa. Dec. 5, 1989) (collecting cases);  cf. Rosen, et. al. v. Rucker and Huck Inc., et al., Civ. Nos. 89-1583, et. al., slip. op. at 12 (3d Cir. June 18, 1990).

 Second, the Court rejects Deere's argument that Rule 238 is unconstitutional because it violates substantive due process.   First, the "[t]he test for determining whether a law comports with substantive due process is whether the law is rationally related to a legitimate state interest.  'The law need not be in every respect logically consistent with its aims to be constitutional' " Rogin v. Bensalem, 616 F.2d 680, 689 (3d Cir.1980), quoting, in part, Williamson v. Lee Optical Co., 348 U.S. 483, 487-88 (1955).

 Here, the Court finds that Rule 238, including its interest provisions, are  "rationally related" to a legitimate state interest--i.e. to encourage the pretrial settlement of meritorious claims.   Furthermore, although there has been much debate in the Pennsylvania courts over the constitutionality of Rule 238, see, e.g. Dietrich v. J.I. Case Co., 568 A.2d 1272, 1280 (Pa.Super.1990), the Pennsylvania courts have thus far rejected all such constitutional challenges.  See, e.g. Shellhamer v. Grey, 568 A.2d 224, 228 (Pa.Super.1989);  Shrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 562 A.2d 875 (1989).

 *8 For all the foregoing reasons, the Court denies defendant's Motion for judgment notwithstanding verdict, or, a new trial;  and the Court will award plaintiff delay damages of $27,209.40.

 An appropriate order follows.

ORDER
 AND NOW, to wit, this 7th day of August, 1990, upon consideration of the Motion of the defendant, Deere and Company, for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial, and the Answer of the plaintiff, Craig Hilburn, and the Motion of plaintiff, Craig Hilburn, to Amend the Judgment to Include Delay Damages, and the Answer of defendant, Deere and Company, IT IS ORDERED that:

 1. The Motion of defendant, Deere and Company, for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial is denied;

 2. The Motion of plaintiff, Craig Hilburn, to Amend the Judgment to Include Delay Damages is granted and the Judgment in the amount of $361,458.00 entered on March 6, 1989, is amended to include delay damages of $27,209.40, making the total judgment $388,667.40.

FN1. Defendant does not identify which grounds were asserted in support of judgment notwithstanding the verdict, or, a new trial. Accordingly, the Court will consider each of defendant's grounds with both forms of post-trial relief in mind.

FN2. Defendant waived its objection to the submission of plaintiff's medical records to the jury.   See Brief of Deere & Company in Support of its Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial at p. 6.

FN3. Defendant acknowledged that the Court properly deleted John Deere Company as a defendant in its revised Judgment Order dated March 6, 1989.   See Brief of Deere & Company in Support of its Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial at p. 2, n. 2 & p. 6.

FN4. T.T. at 116-119 (2/2/89).

FN5. Such evidence included testimony by plaintiff, plaintiff's employer, defendant's responses to plaintiff's request for admissions and, inter alia, the owner's manual for the machine.

FN6. T.T. at 94-95 (2/2/89);  T.T. at 140-142 (2/2/89).

FN7. Mr. Sparks specifically testified as follows: 
Q. Are there other gauges on that instrument panel that you also pay attention? 
A. There are a number of gauges here.   D is the water temperature, F is electrical. 
Q. Okay. 
A. I is water 
Q. Do those gauges provide you with information? 
A. Yes 
Q. And do you act on that information when it's provided to you? A. Yes. 
T.T. at 99 (2/1/89).

FN8. See Plaintiff's Supplemental Answers to Defendant's Interrogatories at 36(a).

FN9. Id. at 36(b).

FN10. T.T. at 116-119 (2/2/89).

FN11. During his qualification as an expert, Dr. Wilcox testified that, among other things, he had consulted for many manufacturers on the issue of product design.   T.T. at 201 (2/1/89);  T.T. at 63-64 (2/2/89).

FN12. See supra note 5.

FN13. T.T. at 59 (2/2/89).

FN14. Fed.R.Civ.P. 32(a)(2) provides that the deposition testimony of a Rule 30(b)(6) witness "may be used by an adverse party for any purpose."

FN15. T.T. at 166 (2/1/89) (Furthermore, although Mr. Sparks did not respond to the specific question on the feasibility of the interlock device, Mr. Sparks did testify as to his normal routine with the machine).

FN16. T.T. at 167-171.

FN17. Plaintiff's Exhibit No. 23.

FN18. See infra notes 33-35.

FN19. T.T. at 40-41 (2/6/89).

FN20. T.T. at 60 (2/6/89).

FN21. T.T. at 66-68 (2/6/89).

FN22. T.T. at 137-138 (2/7/89).

FN23. See Defendant's Supplemental Jury Instruction No. 3.

FN24. T.T. at 37 (2/7/89).

FN25. The Court instructed the jury, in relevant part, as follows: 
"Even a perfectly made and designed product may be defective if not accompanied by proper warnings and instructions concerning its use.   A manufacturer must give such warnings and instructions as are required to inform the user or consumer of the possible risks of using the product or which are created by the inherent limitations in the safety of such use. If you find that such warnings were not given, the defendant is liable for all harm caused by the lack of warnings."   T.T. at 138 (2/7/89).

FN26. T.T. at 136-137 (2/6/89).

FN27. T.T. at 69 (2/7/89).

FN28. Plaintiff does not contest that, after subtracting from the total verdict past loss earnings ($8,160.00) and medical expenses ($28,958.15), the jury awarded plaintiff approximately $325,000 for pain and suffering.

FN29. T.T. at 18 (2/3/89) (Whitaker Deposition at 18-19).

FN30. T.T. at 18 (2/3/89) (Whitaker Deposition at 20).

FN31. T.T. at 140-142 (1/30/89).

FN32. T.T. at 24-28 (1/31/89).

FN33. T.T. at 40-41 (1/31/89).

FN34. T.T. at 42-43 (1/31/89).

FN35. T.T. at 18 (2/3/89) (Whitaker Deposition at 74-79).

FN36. Defendant's Proposed Jury Interrogatory No. 1;  see also T.T. at 188 (2/7/89).

FN37. Rule 238 provides in relevant part as follows: 
(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death, or property damage, damages for delay for shall be added to the amount of compensatory damages awarded against each defendant ... found to be liable to the plaintiff in the verdict of a jury, ... and shall become part of the verdict, decision or award. 
(2) Damages for the delay shall be awarded for the period of time 
(i) in an action commenced before August 1, 1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict, or decision.... 
(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any, 
(1) after which the defendant has made a written offer of [settlement worth at least 125 percent of the award ultimately secured];  or 
(2) during which plaintiff caused the delay of the trial.  (emphasis added).

FN38. Deere's highest settlement offer was $20,000.   Since the jury awarded plaintiff $361,458, Deere's settlement offer was well below 125 percent of the verdict, which is the percentage figure required to suspend Rule 238 damages.   See Pa.Civ.P.Rule 238(b)(1).

FN39. See Pa.Civ.P.Rule 238(b)(2).

 Not Reported in F.Supp., 1990 WL 119690 (E.D.Pa.)

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