Carl W. HINES, Plaintiff-Appellant, v. JOY MANUFACTURING COMPANY and Long-Airdox Company, a Division of the Marmon Group, Inc., Defendants-Appellees.
No. 87-5700.
United States Court of Appeals, Sixth Circuit.
Argued April 25, 1988. Decided June 29, 1988.
850 F.2d 1146
In conclusion, the holding in Garner should have been applied retroactively as a matter of law to the facts of this case. The District Judge did so when he ruled as a matter of law that the Chattanooga policy was unconstitutional and when he charged the jury that Kyle was acting in conformity with municipal policy. However, his instructions to the jurors allowed them to engage in a redetermination of the “constitutionality” or “unconstitutionality” of the City‘s policy insofar as it treated all burglars as potentially dangerous. App. 140-51, 191. The jurors’ verdict for the City probably resulted from a decision that the City‘s policy was constitutional, but it may have resulted from a conclusion that Kyle had the requisite probable cause to shoot. If the former, the verdict was contrary to law. If the latter, it was a verdict that no reasonable jury could have reached, given the testimony of Officer Kyle that he shot Carter solely because he was a fleeing burglar. App. 77-78, 103-04. The District Court should have granted plaintiff‘s motion for judgment notwithstanding the verdict.
BOYCE F. MARTIN, Jr., dissenting.
I am profoundly troubled by the majority‘s willingness to embark upon a difficult journey of legal reasoning that travels upon one-way unilluminated passageways and which reaches a destination, I believe, that affords unequal justice in the vindication of constitutional rights. I join, therefore, the dissent of Judge Merritt.
Charles S. Wible (argued), Daniel Caslin, Owensboro, Ky., for plaintiff-appellant.
Marvin P. Nunley (argued), McCarroll, Nunley and Hartz, Owensboro, Ky., for defendants-appellees.
Charles G. Franklin (argued), Madisonville, Ky., for Joy Mfg. Co.
Before MERRITT and KENNEDY, Circuit Judges, and CONTIE, Senior Circuit Judge.
CONTIE, Senior Circuit Judge.
Carl Hines appeals the district court‘s dismissal of his complaint and various interlocutory orders entered in this products liability case. For the following reasons, we affirm the district court‘s judgment.
I.
This case arises from an accident in an underground coal mine operated by Peabody Coal Company on August 8, 1983. On that date, the belt structure of a mobile bridge unit pinned appellant Carl Hines to the coal rib, resulting in serious and permanent injuries to his hips and legs. Following is a brief summary of the accident and a description of the machinery involved.
There were two pieces of equipment involved in the accident. One was a continuous miner which was designed and manufactured by appellee Joy Manufacturing Company to mine coal in an underground mine. The other was a continuous haulage system consisting of mobile bridge units designed and manufactured by appellee Long-Airdox Company to allow the movement of coal from the face of the mine to the surface. Although the continuous miner was designed to work with shuttle cars, the continuous haulage system eliminated the need for them.
To provide continuous hauling to the surface, several mobile bridge units may be connected in a snake-like fashion with an operator stationed at each unit. The continuous haulage system was designed to
Hines, a mobile bridge unit operator, was injured as he attempted to dislodge a large rock from the continuous haulage system. After hitting the panic bar which shut down the power to the mobile bridge units and the continuous miner, appellant manually attempted to dislodge the rock. Another mobile bridge unit operator restarted the unit in hopes of dislodging the rock and proceeded to the area where appellant was working.
Upon hearing the conveyor belts of the continuous haulage system running, the continuous miner operator started the continuous miner and moved it in a reverse direction. Neither appellant nor the other mobile bridge unit operator was near the work station where the panic bars were located. The continuous miner with the attached continuous haulage system jackknifed, pinning appellant between the wall of the mine and the continuous haulage system. As a result of the accident, appellant sustained injuries to his hips and legs.
Hines filed a complaint on July 19, 1984, followed by an amended complaint on September 5, 1984, invoking the district court‘s diversity jurisdiction pursuant to
Appellee Joy Manufacturing moved for summary judgment on March 14, 1986, on the ground that Peabody Coal‘s subsequent attachment of Long-Airdox‘s continuous haulage system to the continuous miner, constituted an alteration of the product sufficient to invoke
On September 12, 1986, the district court issued an order granting Joy Manufacturing‘s motion for summary judgment and bifurcating the trial. In granting Joy Manufacturing‘s motion for summary judgment, the district court held that there was no doubt that the continuous miner had been modified and that there was no question that Joy Manufacturing had furnished no instructions for the modification. The court further held that appellant would not have been injured if the continuous miner had been used in its original, unmodified condition. The court concluded that, therefore,
A pre-trial conference was held in January of 1987. At that time, the parties were ordered to exchange the identities of all expert witnesses who were expected to be called at the trial, together with a statement of the subject matter upon which the experts were expected to testify, the substance of facts and opinions to which the experts were expected to testify, and a summary of the grounds for the opinions. Appellant responded on January 26, 1987, listing Daniel E. Lebo, as an expert expected to testify on the defective and unreasonably dangerous design of the mobile bridge unit.
At trial, Mr. Lebo testified concerning identifiable design defects or deficiencies with regard to the safety of the continuous haulage system. Among other things, Mr. Lebo testified that there was no lockout device to deactivate the continuous miner while still allowing the mobile bridge units to be operated for clean out and that there was no pull-cord device to grab in an emergency. On cross-examination, appellee Long-Airdox‘s counsel elicited a response from Mr. Lebo that the testimony concerning the lockout and pull-cord devices were opinions that had been developed by Mr. Lebo subsequent to his deposition.
Long-Airdox then moved to strike Mr. Lebo‘s testimony in its entirety on the ground that there had been no supplement to discovery. Hines responded that Long-Airdox already knew of the information concerning the lockout and pull-cord devices because other experts had testified to these devices, so that there would be no difficulty in defending. Further, appellant contended that Mr. Lebo‘s testimony was substantially on the same subject, and that failure to admit the testimony would be harsh and would prejudice appellant‘s case. The district court struck only those portions of Mr. Lebo‘s testimony at trial that did not conform to his deposition testimony.
Later in the trial, Long-Airdox, over Hines’ objection, presented testimony concerning the absence of prior claims involving the equipment which was the subject of the lawsuit.
A jury verdict was returned on May 21, 1987, in favor of Long-Airdox. This timely appeal followed. This court must consider the following questions on appeal: (A) whether the district court properly granted Joy Manufacturing‘s motion for summary judgment; (B) whether the district court abused its discretion in ordering separate trials on the issues of liability and damages; (C) whether the district court abused its discretion in striking that portion of appellant‘s expert witness’ testimony which did not conform to discovery; and (D) whether the district court abused its discretion in admitting evidence of the absence of prior claims.
II.
A.
The general standard an appellate court applies in reviewing a grant of summary judgment is the same as the district court employs initially under
(1) In any product liability action, a manufacturer shall be liable only for the personal injury, death or property damage that would have occurred if the product had been used in its original, unaltered and unmodified condition. For the purpose of this section, product alteration or modification shall include failure to observe routine care and maintenance, but shall not include ordinary wear and tear. This section shall apply to alterations or modifications made by any person or entity, except those made in accordance with specifications or instructions furnished by the manufacturer.
(2) In any product liability action, if the plaintiff performed an unauthorized alteration or an unauthorized modification, and such alteration or modification was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.
(3) In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.
In the absence of a controlling decision on the issue at hand, federal courts exercising diversity jurisdiction must attempt to predict how the state courts will act in the future. Filley v. Kickoff Publishing Co., 454 F.2d 1288, 1291 (6th Cir. 1972). Furthermore, a district court‘s interpretation of state law is given considerable weight by courts of appeals. Wright v. Holbrook, 794 F.2d 1152, 1155 (6th Cir. 1986).
The Kentucky Supreme Court has held that the Products Liability Act is to be construed to limit liability in products liability actions. Reda Pump Co. v. Finck, 713 S.W.2d 818, 820 (Ky. 1986).
Id. [Section] 411.320(1) limits liability to that which would have occurred had the product been used in its original, unaltered, and unmodified form, and [section] 411.320(2) precludes recovery by a plaintiff who performs an unauthorized alteration or modification of the product, which alteration substantially causes injury. [Section] 411.320(3) absolutely bars recovery in cases where contributory negligence of the plaintiff substantially contributes to cause an occurrence which injures the plaintiff.
The Kentucky courts, however, have not rendered a controlling decision on the issue at hand, i.e., whether there is a genuine issue of material fact concerning a manufacturer‘s liability under the Product Liability Act when the plaintiff‘s employer welded a permanent yoke to its product and permanently hitched a second piece of
In the instant case, Charles F. McGregor, a former superintendent for Peabody Coal affirmatively responded to the question whether the continuous miner had to be modified before it could be connected to the mobile bridge unit. Dempsey Paul Ezell, a mobile bridge operator for Peabody Coal, testified that the mobile bridge unit was permanently welded to the tail of the continuous miner. He elaborated as follows: “Well, when I say permanently welded it‘s got a plate that‘s welded to the bottom of this tail and it‘s got pins you can pull and release it, but it‘s what I call permanently. The way they‘ve got it fixed, it‘s made permanently to the Joy.” James E. Gatehouse, an employee of Long-Airdox at the time of the accident, stated that the yoke that was used to connect the continuous miner was made by Long-Airdox and was an integral part of the continuous miner. Thus, there is no question that the continuous miner was modified.
Furthermore, McGregor testified that he would have given the order for the two pieces of equipment to be connected. He stated that Joy Manufacturing representatives were present and aware when the continuous miner was connected to the continuous haulage system, but that he did not personally consult them. McGregor indicated in his deposition that the welding of the yoke as well as the mechanical connection of the two pieces of equipment had been carried out by Peabody Coal. This evidence inescapably leads to the conclusion that the modification was made without specifications or instructions provided by Joy Manufacturing.
Appellant argues, however, that its modification was “impliedly authorized” by Joy Manufacturing because field representatives for Joy Manufacturing were aware of the connection of the continuous miner to Long-Airdox‘s continuous haulage system. We reject this argument.
Appellant argues further, however, that the district court erred because there is a genuine question of material fact concerning whether the unauthorized modification actually caused the accident. We reject this argument. Frank B. Kendrick, Production Manager on Continuous Miners and Loading Machines for Joy Manufacturing, indicated in his deposition that the continuous miner involved in this case was built to be used primarily with shuttle cars. Kendricks testified, however, that Joy Manufacturing customarily reinforced the continuous miner structurally according to their own specifications if a customer noti-
The evidence further indicates that had the modification been done according to Joy Manufacturing‘s instructions and specifications the connection of the two pieces of equipment would have been stronger. Had Peabody Coal purchased a continuous haulage system manufactured by Joy Manufacturing, there would have been no connection of the two pieces of equipment at all. Appellant has not introduced evidence which shows that the same accident would have occurred if either of these alternatives had been chosen. We further hold, therefore, that appellant has raised no genuine issue of material fact concerning whether the same accident would have occurred had Peabody Coal‘s modification been made with instructions and specifications provided by Joy Manufacturing. For these reasons, the district court properly granted Joy Manufacturing‘s motion for summary judgment.
B.
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
Bifurcation of issues of liability from those relating to damages is an obvious application of
We add the caveat expressed in Frasier v. Twentieth Century-Fox Film Corp., 119 F. Supp. 495, 497 (D. Neb. 1954) that separation of issues “should be resorted to only in the exercise of informed discretion and in a case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice” and observe further that “[a] paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.”
In the instant case, appellant argues that the extent of the injury is relevant to the question of whether a manufacturer was negligent in putting its product on the market. This argument is apparently based on the familiar Learned Hand formula for determining liability. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). In Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir. 1973), a personal injury action which was bifurcated similarly to the instant case, however, this court rejected the appellant‘s argument that she was prejudiced by the fact that the jury was unable to consider evidence respecting her injuries in making its findings on the question of
C.
A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
Exclusion of evidence, continuance, or other action deemed appropriate by the court may be imposed as a sanction for breach of the duties set forth under
Appellant must show substantial prejudice before we will grant a new trial based on an alleged
D.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In the instant case, the evidence of lack of prior claims was admitted
(1) the absence of the defect or condition alleged; (2) the lack of a causal relationship between the injury and the defect or condition charged; (3) the nonexistence of an unduly dangerous situation; or (4) want of knowledge (or of grounds to realize) the danger.
E. Cleary, McCormick on Evidence § 200 (3d ed. 1984). Thus, the evidence of lack of prior claims was relevant evidence in this case as the district court held.
The district courts have broad discretion in deciding issues of admissibility under
In the instant case, appellant argues that Long-Airdox did not produce evidence that there was substantial similarity between the conditions which gave rise to no prior claims and the conditions which gave rise to this case. Long-Airdox‘s expert, however, testified that the original design of the mobile bridge unit dates back to the late 1950‘s or early 1960‘s. Additionally, Long-Airdox clarified at the outset that the 200 units sold were similar to the type of design of the equipment that was the subject of this case. C.f. Walker v. Trico Mfg., 487 F.2d 595, 599 (7th Cir. 1973) (holding that it was error for the trial court to admit evidence of lack of prior accidents when the similarity of the forty-five units sold was not known), cert. denied, 415 U.S. 978 (1974).
Finally, this court has noted as follows:
[In the case of evidence of lack of prior incidents, there is] no danger of arousing the prejudice of the jury, as the proof of another accident may do. Moreover, the danger of spending undue time and incurring confusion by raising ‘collateral issues,’ conjured up in some of the opinions, seems not at all borne out by experience in jurisdictions where the evidence is allowed. The defendant will seldom open this door if there is any practical possibility that the plaintiff may dispute the fact.
Appellant has not shown that the evidence concerning lack of prior claims was unfairly prejudicial. Accordingly, we hold that the district court did not abuse its discretion in admitting this evidence.
For the foregoing reasons, the district court‘s judgment is AFFIRMED.
MERRITT, Circuit Judge, dissenting.
I would reverse the grant of summary judgment to appellee Joy Manufacturing. I would read the Kentucky Product Liability Act to except modifications made with the knowledge and acquiescence of the manufacturer from the
The majority declines to read the common law concept of foreseeability into the Product Liability Act. This interpretation seems correct, as the Act does not incorporate the reasoning of § 402A of the Restatement of Torts (Second). However, the issue in this case is not one of “foreseeable modification.” Instead, the issue is whether a manufacturer‘s knowledge of and acquiescence in a modification is a modification “made in accordance with specifications or instructions furnished by the manufacturer.” The majority dispenses with the inquiry into whether the modification was authorized by stating that “there is no question that Joy Manufacturing did not furnish specifications or instructions within the plain meaning of those words.” However, I do not think that the Kentucky Supreme Court would go so far as to hold that manufacturers must furnish written specifications and instructions before their actions fall within the exception to the statute. The “specifications or instructions” requirement should be interpreted to include modifications of which the manufac-
Jean KNAFEL; Karen Wuchich, Plaintiffs-Appellants, v. PEPSI COLA BOTTLERS OF AKRON, INC.; Stanley Levin; James Davis; and General Cinema Corporation, Defendants-Appellees.
No. 87-3654.
United States Court of Appeals, Sixth Circuit.
Argued March 24, 1988. Decided July 7, 1988.