Our present review is of a retrial of a product liability action arising out of chemical contamination at the former Transportation and Safety Building in the Capitol Complex in Harrisburg.
The background is set forth at length in the Court’s initial decision in
Pennsylvania Department of General Services, v. U.S. Mineral Products Corp.,
The Honorable Robert Simpson, Jr. presided over the retrial, in which an appropriate instruction was issued to the jurors. This trial culminated in a defense verdict, upon a jury finding that Monsanto’s product was not defective. Appellants filed timely post-trial motions, which were denied by a three-judge panel of the Commonwealth Court.
See Department of General Services v. U.S. Mineral Products Corp.,
The governing review principles require the award of a new trial only where a trial court has committed an error of law or abuse of discretion which may have affected the verdict.
See Harman ex rel. Harman v. Borah,
I. The Against-The-Weight-Of-The-Evidence Claim
In addressing Appellants’ claim that the jury finding of no defect was against the weight of the evidence, the Commonwealth Court initially summarized Appellants’ evidence of product defect, including testimony that PCBs are harmful to human health and were unintentionally disbursed throughout the T & S Building through the ordinary course of the operation of the building’s heating and ventilation system.
See DGS II,
Presently, Appellants contend that it was undisputed at trial that PCBs are susceptible to dispersal; tend to accumulate in humans subject to multiple exposures; are capable of causing human illness; and, indeed, represent the only substance ever to have been banned by Congress,
see
15 U.S.C. § 2605(e). Appellants point to Monsanto’s own documents characterizing PCBs as a “worldwide ecological problem” and indicating that “Monsanto is most probably responsible for the U.S. contamination.” N.T., February 8, 2007, at 1405-1406. Appellants also reference testimony from Dr. James Melius, an epidemiologist, who indicated,
inter alia,
that PCBs are carcinogens and have other known adverse health effects, including liver damage, immune system damage, and neurological effects on developing children.
See
N.T., February 2, 2007, at 798-802. Further, Appellants rely on testimony from Dr. Richard Le-men, a former director of the National Institute for Occupational Safety and Health, discussing such health effects,
see
N.T., February 7, 2007, at 1095, and the agency’s recommendation that PCB presence in buildings be limited to the lowest feasible limit (one microgram
As to the spread of PCBs throughout the T & S Building, Appellants contend that at least a significant amount, if not all, occurred as a result of PCB-containing building materials used as intended. Appellants support this conclusion by reference to the testimony of industrial hygienists John Kominsky and William Ewing, who opined that PCBs used as a component of glue in the building’s ductwork were released as vapor into the air stream during the ordinary use of the heating and ventilation system. See N.T., February 1, 2007, at 598; N.T., February 12, 2007, at 1569, 1643-44. Mr. Kominsky also testified that PCBs were disbursed when the ductwork was fabricated through the process of sealing the assembled segments with a hot iron. See id. at 1647. Appellants observe that samples of building materials taken from the T & S Building prior to the fire were contaminated with the type of PCB used in the ductwork, which they contend negates Monsanto’s theory that the migration occurred solely on account of the fire. Appellants also develop that there were PCBs in other building products, including PCB-containing caulking material which migrated to pre-cast concrete panels on the exterior of the building, see N.T., February 13, 2007, at 1825, 1850-52, and mastic used to attach floor tile, which they assert contaminated the concrete deck, see id. at 1893-1894.
With regard to the Commonwealth Court’s reasoning supporting the denial of a new trial, Appellants argue that the court overemphasized the absence of immediate bodily injury in disregard of
DGS I,
which recognized the significance of an increased risk to human health in a property-damage case.
See DGS
/,
For its part, Monsanto defends the Commonwealth Court’s rationale, characterizing Appellants’ evidence of harmfulness as abstract from any assessment of the nominal levels of PCBs found in the T & S Building resulting from ordinary use of PCBs in the building materials.
2
Monsanto highlights this Court’s holding in
DGS I
that Appellants were required to
establish that the presence of PCBs, unrelated to the fire, rendered the building unsafe.
See DGS I,
Monsanto also points to substantial evidence to the effect that the PCBs found on surfaces within the T & S Building were not reposited during the intended use of the building materials, but were spread by smoke and soot during the fire. In this regard, it explains that tests commissioned by its expert on pre-fire building materials showed only nominal PCB bulk-sample levels (measured in parts per million) that were five times lower than those found in similar building materials after the fire. See N.T., February 21, 2007, at 2589. Monsanto notes that, at trial, Appellants vigorously disputed that smoke and soot from the fire spread beyond the sixth floor, but were contradicted by a DGS engineer; a DGS deputy secretary; a DGS environmental consultant; and Harrisburg’s fire chief, who described having seen smoke and soot throughout the Building during the fire and/or having witnessed the products of combustion in the aftermath. See N.T., February 7, 2007, at 1148-1149; N.T., February 16, 2007, at 2213; N.T., February 20, 2007, at 2547; N.T., February 28, 2007, at 3663. Moreover, Monsanto observes that the jurors viewed two videotapes of the fire, providing visual confirmation of its impact. Additionally, Monsanto develops that its fire expert and the fire chief described the various mechanisms by which the products of combustion spread vertically and horizontally throughout the building, such as through unsealed shafts housing cables. See N.T., February 16, 2007, at 2244-2245. Thus, Monsanto asserts, there was ample evidence from which the jury could conclude that PCBs found on building surfaces following the fire did not derive from the intended use of building products such as would be necessary to support Appellants’ defect theories under DGSI.
Monsanto also catalogues its evidence contradicting Appellants’ experts’ theories of dissemination through ductwork operation and fabrication, which it contends were without credible scientific or evidentiary foundation.
See, e.g.,
Brief for Appellee at 17 (“In order to prove that PCB contamination pre-dated the fire, Plaintiffs contrived a theory through their experts ... that PCBs evaporated out of the solid glue matrix (of which PCBs were one of 12 constituents) that affixed the aluminum backing of the HVAC ductboard to its fiberglass interior, traveled through a dense one-inch mat of fiberglass, and flew from the surface of the fiberglass into the occupied areas of the Building during the winter heating season.”). Monsanto points to the evidence that PCBs evaporate 100 million times more slowly than water,
see
N.T., February 21, 2007, at 2607-2608, and that very few of over 5,000 air tests conducted in the T & S Building after the fire indicated any presence of PCBs,
see id.
at 2608-2612. Further, Monsanto details various criticisms of tests performed on ductwork segments by Appellants’ expert, since he utilized pieces taken from the building after the fire; subjected them to conditions not found in the building; and was unable to maintain even the designed controls.
See
N.T., February 21, 2007, at 2627-2631. With regard to Appellants’ theory that PCBs were released in the fabrication of the ductwork, again, Monsanto refers to evidence that the PCB-containing glue was trapped between three layers of aluminum and a one-inch thick layer of fiberglass insulation, thus preventing
Concerning the presence of PCBs from caulk, Monsanto notes that the jury heard testimony that, under prevailing federal regulations, the caulking material did not have to be removed, nor if removed, disposed of in a special landfill designated under the Toxic Substances Control Act. See N.T., February 21, 2007, at 2634-2635. Further, according to Monsanto, none of Appellants’ experts established a pathway of exposure of Building occupants to the caulk, and thus, any actual health risk. Monsanto’s expert also testified that the mastic under the carpeting did not require remediation. See N.T., February 21, 2007, at 2590-2595. Finally, Monsanto highlights its expert’s testimony that PCBs escape into the environment for reasons principally related to the disposal practices of users, see N.T., February 31, 2007, at 2682-2683, and his unequivocal opinion that, because of their stability, PCBs did not volatilize and escape from the building products found in the T & S Building. See N.T., February 21, 2007, at 2606-2608, 2617-2627.
In accordance with the foregoing, Monsanto observes that, without objection and consistent with DGS I, the trial court instructed the jurors to decide whether Monsanto’s product was unsafe for its intended use in the T & S Building. Since there was substantial evidence that the product, used as intended, did not create a health risk, Monsanto concludes that the jury could reasonably find (and found) that its product was not defective.
In evaluating a claim that a verdict is against the weight of the evidence, Pennsylvania courts employ a shocks-the-conscience litmus.
See Armbruster v. Horowitz,
We agree with Monsanto that the Commonwealth Court did not abuse its
the incineration of building products is not a use intended by the manufacturer. Under Pennsylvania law, damages in this case are unavailable for fire-related PCB contamination. As jurors, you are required to distinguish between any PCB contamination that existed before the fire and PCB contamination spread by the fire.
N.T., March 1, 2007, at 4011.
While there were various samplings of PCBs found on surfaces in the T & S Building above the level recommended by the National Institute for Occupational Safety and Health, and some above the ceiling established by the Environmental Protection Agency, the parties vigorously contested whether these derived from ordinary use of building products or from the fire. Moreover, as developed above, substantial evidence was presented to support both positions. Monsanto’s evidence included the testimony of a registered professional engineer specializing in PCBs, which proceeded as follows:
Q. Based upon your investigation, and your 30 years of experience on working on PCB projects, can you tell us where the PCBs that were found after the fire, where they came from?
A. The materials that burned in this situation in the fire within the T & S Building were the ductboard containing the PCB adhesive, and the light fixtures that contained PCB capacitors. Those were the two sources.
Q. Okay. The answer to my question though is, the PCBs that were found on surfaces after the fire, where did they come from?
A. They came — they came from those sources. They were exactly the same [types of PCBs].... So you could trace it very easily with the fingerprint of the type of PCB.
Q. And what is it that caused them to be released?
A. They simply were distributed by the smoke and fire.
Q. Of the what, as a result of what?
A. As a result of the fire and the burning of these products.
N.T., February 21, 2007, at 2583-84.
Based on this and other items of Monsanto’s evidence, the jurors reasonably may have concluded that it was the fire, and not any intended use of PCBs, that was the vehicle by which PCBs were distributed to surfaces throughout the Building. Further, as Monsanto develops, its expert also testified that the PCBs deriving from the outside caulk and floor mastic did not pose any risk to human health and did not need to be remediated. See N.T., February 21, 2007, at 2590-2595. While Appellants certainly are free to disagree with the verdict, we do not find it to be of the variety that shocks the conscience. Thus, we conclude that there is insufficient basis to disturb the trial court’s decision to deny Appellants’ request for a new trial. 5
The Commonwealth Court next addressed Appellants’ argument that the trial court erred in permitting Monsanto to introduce evidence that the T & S Building lacked a sprinkler system and other fire-safety features, and evidence regarding repair costs that Appellants did not seek to recover, thus purportedly suggesting negligence on Appellants’ part in the maintenance of the building. The court explained that the admission or exclusion of evidence lies within the sound discretion of the trial court.
See DGS II,
On the merits, the Commonwealth Court explained that, although evidence of negligence has no place in strict liability actions,
see DGS II,
In the present case, the court determined that the contested evidence was relevant primarily to rebut Appellants’ damage claims. According to the court, the evidence of lack of a sprinkler system and other safety features was admitted to show the condition of the Building prior to the 1994 fire and detection of PCBs.
See DGS II,
We thoroughly examined Defendant’s use of the evidence throughout the trial, including closing argument, and find it respected the use for which the evidence was offered. Moreover, we fail to see how introduction of the Building’s lack of safety features could affect the jury’s decision that Defendant’s product was not safe for its intended use. Plaintiffs’ argument that the jury may have found Defendant’s product not defective based on evidence the Building lacked certain safety features is pure speculation, which, if accepted, necessitates the conclusion the jury disregarded the trial judge’s limiting instructions. We presume, however, the jury followed the instructions. Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div.,781 A.2d 1263 (Pa.Super.2001), aff'd,571 Pa. 60 ,811 A.2d 565 (2002). Where there is no evidence to support such an argument, a new trial is not warranted.
Id. at 732.
In a footnote, the Commonwealth Court also addressed Appellants’ argument that
Presently, Appellants argue in general terms that the trial court erred in the first instance in admitting the evidence of lack of fire-safety features and costs of repair. The thrust of their argument, however, goes to Monsanto’s use of the evidence. In this regard, Appellants stress that the trial court admitted the evidence for limited purposes, clearly ruling that it could not be used to prove negligence on their part. According to Appellants, however, Monsanto blatantly ignored such limitation, particularly in its counsel’s closing argument to the jury. See, e.g., Brief for Appellants at 36-37 (delineating examples of such asserted excesses, including Monsanto’s counsel’s statement: “And don’t you think the Commonwealth knew that after the fire, after they had egg on their face because they didn’t sprinkler the building, when they announced, we’re out of there in a year, put in sprinklers, and take out asbestos.” (quoting N.T., March 1, 2007, at 3946-3947)). Further, Appellants maintain their criticism that, when the jury requested that the instruction regarding product defect be reread, the limiting instruction concerning sprinklers, other safety features, and costs of repair was not included.
We agree with the Commonwealth Court that the trial court’s decision to admit evidence of a lack of fire-safety features and costs of repair was within its discretion. In the damages portion of the jury charge, without objection, the trial judge instructed the jurors that: “In thinking about market value, you may consider depreciation, including physical deterioration, design, and other deficiencies of the structure ...” N.T., March 1, 2007, at 4020;
accord DGS I,
587 Pa.
at 251-52,
There is at least colorable merit to the thrust of Appellants’ argument, namely, that Monsanto’s counsel exceeded the bounds of the limited purposes for which the fire-safety and cost-of-repair evidence was admitted in his closing argument. However, Appellants failed to lodge an objection to the closing to afford the trial judge the contemporaneous opportunity to take corrective action. In the circumstances, the present claim is waived.
See Harman ex rel. Harman v. Borah,
III. Limits on Voir Dire
In response to Appellants’ claim that they were provided insufficient opportunity for
voir dire,
the Commonwealth Court observed that the trial judge conducted preliminary
voir dire
to address threshold issues of venireperson availability and hardship and distributed a written questionnaire to the remaining venire panel to secure additional information. The court noted that both parties were afforded an opportunity to
examine and comment upon the questionnaire, and neither party objected to the form.
See DGS II,
The Commonwealth Court also noted that the trial judge granted a request by Appellants for additional time for voir dire, explaining as follows:
After several hours of preliminary questions relating to the length of trial, Plaintiffs’ counsel reviewed the jury questionnaires and embarked on general oral voir dire. After approximately 50 minutes of questioning by Plaintiffs’ counsel, the trial judge inquired how much longer he intended to continue. At side-bar, the following colloquy occurred: [Plaintiffs counsel:] I don’t know how much [Defendant’s counsel] feels, but a bunch of these questionnaires have people that said they can’t be fair about — maybe 10 of them,
THE COURT: There are two people who said they can’t be fair. I don’t know how much time that’s going to take. Look, tell me what you need. This is an important part of trial, I understand that. But I’d like to get this done if we can. And you were certainly schmoozing and spending your time freely for a while....
THE COURT: So this is my opportunity to focus you. How much time do you need?
[Plaintiffs counsel]: 30 minutes.
THE COURT: [Defendant’s counsel] gets the same amount of time. Okay.
DGS II,
Appellants’ present arguments fail to address the Commonwealth Court’s express finding of waiver, with which we can find no fault. Accordingly, this claim provides no basis for relief.
The order of the Commonwealth Court is affirmed.
Notes
. There was no dispute that PCB-containing building materials were consumed by fire during the event.
. In this regard, Monsanto explains that the studies relied on by Appellants' experts were primarily high-dose animal studies and assessments of workers having substantial levels of occupational exposure. See, e.g., N.T., February 6, 2007, at 857, 981-984.
. Monsanto also offered evidence that even if there had been some escape during the installation process, because of the stability of PCBs, the amount that could have volatilized throughout the T & S Building would have been only one-hundredth of an ounce, or less than a drop. See N.T., February 21, 2007, at 2627.
. Although in this case post-trial motions were resolved by a three-judge panel, notably, the trial judge was a member and, indeed, authored the panel opinion.
. We also find Appellants' claim arising out of the trial judge's displeasure with post-verdict juror interviews, which amounts to an assertion of bias, to be without foundation. Whatever the merits of the criticisms of Appellant's counsel, there is nothing to connect the trial judge's perspective on this subject with the Commonwealth Court's developed reasoning concerning the unrelated weight-of-the-evidence claim.
. Appellants reference no portion of the record other than the closing argument of Monsanto's counsel where they contend that the limited > purposes for which the evidence was admitted were exceeded.