Defense Digest

Use It Or Lose It: Failure To Object At Trial Results In Waiver Of Appellate Argument

In a decision favoring form over substance, the Pennsylvania Supreme Court in Straub v. Cherne Industries, 880 A.2d 561 (Pa. 2005) (August 15, 2005), recently held that defense counsel's failure to specifically object to questionable jury instructions in accordance with Pennsylvania Rule of Civil Procedure 271.1 at the time of trial "waived" that issue for appellate review. Specifically, the court refused to entertain the substance of the defendant's appeal - a products liability manufacturer cannot be found negligent when a jury already determined that the product was not defective - because the issue was not preserved at trial.

The Straubs sued Cherne, a product manufacturer, for personal injuries surrounding the explosion of an over-inflated "Muni-Ball," a plug device that temporarily seals sewage pipes during installation to prevent water or debris from entering or draining from it. It was alleged that Mr. Straub unknowingly over-inflated the Muni-Ball while installing new sewer pipe because the pressure gauge connected to the device was not working. The complaint set forth counts in negligence and strict liability. With regard to strict liability, the plaintiffs asserted that the Muni-Ball was defective in design and warnings. With regard to negligence, it was asserted that Cherne did not use reasonable care in designing and testing the Muni-Ball and in developing the warnings that accompanied it.

At the conclusion of the testimony, the trial court stated that its aim was to make certain that the jury understood that the plaintiffs asserted two distinct and independent theories of recovery - a claim in strict liability and a claim in negligence. To make this clear, it was agreed by the parties that separate verdict sheets would be used - one for strict liability, one for negligence, and one for the calculation of damages, if any. The jury found the manufacturer liable on the negligence theory only, awarding $4.5 million.

Cherne appealed, raising several issues, including its entitlement to a judgment notwithstanding the verdict, stating that the jury's negligence verdict for the plaintiffs could not stand in light of the jury's finding that the Muni-Ball was not defective and plaintiffs failure to produce evidence of any negligent act or omission on Cherne's part. The plaintiffs argued that Cherne did not preserve the objection and had waived its challenge to the jury's verdict by not raising this argument at trial and by waiting until post-trial proceedings to put it forward.

Before turning to the merits of Cherne's appeal, the Superior Court considered the plaintiffs' contention that Cherne waived their appellate argument. The Superior Court concluded that "waiver" was inapplicable for two reasons: (1) the fact that the relationship between strict products liability and traditional negligence is a matter of much confusion and disagreement; and, (2) the fact that since neither party objected to the instructions, the court allowed the jury to find Cherne liable on either or both causes of action, making it possible for the jury to find Cherne negligent, even if the product was not defective. The Superior Court reversed the verdict for the plaintiffs, holding that the negligence-based products claim could not be maintained because the plaintiffs did not prove that the product was defective.

In reversing the Superior Court solely on the issue of waiver, the Pennsylvania Supreme Court re-emphasized its prior holding of Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974), requiring litigants to make timely trial objections pursuant to Pa.R.C.P. 271.1 in the name of judicial economy by ensuring that the trial court is given the opportunity to correct its alleged errors. The Supreme Court specifically stated that Cherne, by agreeing to the separate verdict slips for strict liability and negligence at trial, took a position contrary to the basis for their appeal. Rule 227.1(b)(1) mandates an immediate objection to permit the trial court the opportunity to take corrective action and preserve the issue for appeal. However, by failing to object to the submission of multiple verdict slips and the judge's jury charge regarding the multiple theories of liability, Cherne's request for judgment notwithstanding the verdict was waived.

The decision in Straub demonstrates that appellate courts may find waiver more frequently, even in the face of clear error. Consequently, trial counsel should remain vigilant in making objections to preserve issues and arguments for post-trial review. Otherwise, judicial blunders may never be addressed by the appellate courts.

*Matt is an associate in our Scranton, PA office. He can be reached at (570) 496-4602 or mkeris@mdwcg.com.