Antitrust attorneys

A Pennsylvania high school’s insurer brought a subrogation action for strict liability and breach of warranty against the manufacturer of a refrigerator that allegedly caused fire at the high school.

The Appellant is this case was an insurance company (“Indemnity”), which was the subrogee of the Unionville–Chadds Ford School (“School”).  Indemnity brought suit against an appliance manufacturer alleging strict liability and breach of warranty in the U.S. District Court for the Eastern District of Pennsylvania.

The School District is located in southeastern Chester County and western Delaware County in Pennsylvania.  It is a 77-square-mile area which encompasses seven townships and roughly 4,000 students.  It is a suburban area of both Philadelphia and Wilmington, DE.

This litigation concerns from a fire at the School in July 2009. As a result of the fire, the School submitted a claim to its insurance provider, Indemnity. Indemnity paid the claim and subsequently brought suit against the refrigerator to recover the money the insurer paid to the School. The suit alleged strict liability and breach of warranty. Indemnity alleged that the fire was caused by a malfunction within the wiring of a refrigerator that was manufactured by the defendant.

After the jury returned a unanimous verdict in favor of the defendant, the District Court entered a judgment in favor of the refrigerator manufacturer.  Indemnity appealed that judgment, claiming, inter alia, that the district court abused its discretion in not sequestering the manufacturer’s expert witness.

In the trial, before the opening statements, Indemnity made a motion to sequester witnesses. The District Court considered this for some lay witnesses, but declined to sequester defendant’s expert.  The judge stated, “I think an expert should be permitted to hear testimony. He has got to come in here and offer his opinion and he can listen to the testimony before he does that.”

Circuit Judge D. Michael Fisher said that the District Court acted within its discretion in refusing to sequester the expert witness in this case.  Federal Rule of Evidence 615 provides that “[a]t a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony…. But this rule does not authorize excluding … a person whose presence a party shows to be essential to presenting the party’s claim or defense.”

Judge Fisher explained that this “essential” exception applied most often in cases involving expert witnesses, and that there was little, if any, reason for sequestering a witness who was to testify as an expert rather than on the facts of the case.  He went on to say that where a party seeks to accept an expert from sequestration so that the expert can hear the testimony of witnesses in person, the decision whether to permit the expert to remain is within the discretion of the trial judge.  This was not typically to be disturbed on appeal, the judge wrote.

The District Court declined to sequester the expert witness because it believed that an expert should be permitted to hear testimony because he or she would follow by offering their opinion.  The trial court felt that the expert witness was entitled to listen to the testimony before stating their opinion.  As a result, the Court of Appeals held that the District Court’s ruling would not be disturbed on appeal.

Case:  2013 WL 1303780 (C.A.3 (Pa. April 2, 2013))

By: Kurt Mattson, J.D., LLM