DANNY CRAWFORD, BETTY ANN CRAWFORD, Plaintiffs-Appellees, versus ITW FOOD EQUIPMENT GROUP, LLC, Defendant-Appellant.
No. 19-10964
United States Court of Appeals for the Eleventh Circuit
October 21, 2020
[PUBLISH]
D.C. Docket No. 3:16-cv-01421-HLA-PDB
Appeal from the United States District Court for the Middle District of Florida
Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.
Danny Crawford sued ITW Food Equipment Group LLC (“FEG“) for negligent product design after his arm was amputated when it came into contact with the unguarded blade of one of FEG‘s commercial meat saws, the Hobart Model 6614. After a jury trial, Crawford and his wife were awarded $4,050,000. FEG now appeals this verdict on evidentiary and sufficiency of the evidence grounds. We conclude that the district court‘s evidentiary determinations were within its discretion, and that FEG‘s other challenges lack merit. Accordingly, we affirm.
I. BACKGROUND
Danny Crawford was the meat-market manager at a supermarket in Jacksonville. One Sunday in 2015, Crawford was cutting meat with the Hobart 6614 vertical band saw, manufactured by FEG, when he was called away to fill one of the store‘s meat cases and speak with associates. Crawford, admittedly distracted, forgot to deploy the meat saw‘s blade guard. When he returned to the meat saw, he reached for his box cutter. His arm contacted the unsheathed blade and was amputated.
Crawford and his wife Betty Ann Crawford brought a products liability action against FEG, raising both strict liability and negligence design defect claims. The district court held a four-day jury trial. Late during trial, Crawford withdrew his strict liability claim.
Crawford‘s theory of the case was that FEG negligently designed the Hobart 6614‘s blade guard. The meat saw used an adjustable guard, meaning that the
To that end, Professor Barnett designed and built an alternative meat saw, closely modeled on the Hobart 6614, that employed a self-deploying blade guard. His design used a foot pedal connected to air compressors to lower the guard when the pedal was depressed and raise the guard when released, so that when the saw‘s operator walks away, the guard automatically deploys.
In addition to Professor Barnett‘s testimony, Crawford presented the testimony of Dr. Mark Edwards, a human factors engineer who discussed the inverse relationship between job performance and workload, as well as how workers can fail to see objects that are not the focus of their attention (which he characterized as “inattentional blindness“). He stated that a self-deploying guard can protect against what he characterized as the inevitability
FEG moved to exclude Professor Barnett‘s alternative design on the grounds that it did not meet the Daubert standard for expert testimony, and moved for summary judgment. FEG‘s summary judgment motion noted that Professor Barnett, in his report and deposition, could not identify any self-deploying guard available when the Hobart 6614 was manufactured in 2010;1 in response, Crawford submitted an affidavit from Professor Barnett stating that since his report and deposition, he had identified three meat saws using a self-deploying blade guard
that had been patented in 1976,2 as well as an additional patent that had not been used on any manufactured designs.
Crawford also introduced summaries of incidents reported to the Occuрational Safety and Health Administration (OSHA) in which saw operators had been injured by meat saws with adjustable blade guards while not cutting meat. Some of these incidents involved the Hobart 6614‘s predecessor saw, the model 6801, which had the same adjustable guard as the model 6614. Professor Barnett noted that OSHA recommended self-adjusting guards to the industry in 2007. D.E. 71 at 84.
FEG‘s requested jury instructions had included Florida‘s “state-of-the-art defense,” which provides that “the finder of fact shall consider the state of the art of scientific and technical knowledge and other circumstances that existed at the time of manufacture, not at the time of loss or injury.”
The jury found that Crawford and FEG‘s negligent design were both responsible for Crawford‘s injury. It found Crawford 70% at fault and FEG 30% at fault. The jury found Crawford‘s total damages were $13,500,000, of which just over $4 million was allocated to FEG under the jury‘s comparative fault finding.
At the close of Crawford‘s case and again after trial, FEG moved for judgment as a matter of law. FEG argued that Crawford failed to prove that its meat saw was defective and that Crawford‘s expert testimony was inadmissible. The district court denied these motions, concluding that Crawford had presented sufficient evidence to support the jury‘s verdict, and that Crawford‘s experts satisfied the Daubert standard.
FEG also moved for a new trial. FEG argued that the district court should have issued the state-of-the-art defense instruction, and that this instruction would have altered the jury‘s verdict. FEG also argued that the district court should have
The district court denied the motion for a new trial. It concluded that its failure to give the state-of-the-art instruction did not result in prejudicial harm to FEG. It also concluded that its admission of the OSHA reports complied with the public records hearsay exception and that the reports were relevant to Crawford‘s case.
FEG timely appealed.
II. PROFESSOR BARNETT‘S EXPERT TESTIMONY
A. Barnett‘s Report
FEG first argues that the district court should not have admitted Professor Barnett‘s testimony.
The district court‘s decision to admit Barnett‘s testimony is reviewed pursuant to an abuse of discretion standard. McClain v. Metabolife Int‘l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005). This court can only reverse the district court if it applied an incorrect legal standard, followed improper procedures, or made clearly erroneous findings of fact. Chicago Trib. Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001); see also McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (noting that “our review of evidentiary rulings by trial courts on the admission of expert testimony is very limited” (internal quotations omitted)); Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F.3d 915, 921 (11th Cir. 1998) (“It is very much a matter of discretion with the trial court whether to permit the introduction of evidence, and we will not reverse the decision of the trial court regarding the exclusion or admission of such evidence unless the trial court‘s decision is manifestly erroneous.” (internal quotations omitted)).
Barnett‘s ultimate conclusion was that FEG did not use reasonable care in designing the Hobart 6614 meat saw. His theory was that the Hobart 6614 is unreasonably dangerous because it lacks an auto-deploying blade guard. He crafted an alternative design using an auto-deploying guard deployed with a foot pedal; the
FEG argues that Barnett‘s testimony fails the Daubert standard. A “key question” when evaluating an expert‘s proposed alternative design, says FEG, is “testability;” this ensures that the jury focuses on the relevant question of whether the manufacturer could have designed a better product. See Hilaire v. DeWalt Indus. Tool. Co., 54 F. Supp. 3d 223, 248 (E.D.N.Y. 2014). FEG argues that Barnett did not test whether his proposed design would function similarly to the Hobart 6614 meat saw, or whether his design would be purchased by users. Because Barnett did not demonstrate that his alternative design was both “economically feasible and just as safe or safer” as the Hobart 6614, see id. at 247, FEG argues that his testimony is unreliable.
Crawford argues that Barnett‘s testimony regarding his alternative design was reliable. It was subject to “thorough testing.” Barnett applied for a patent. Barnett demonstrated his guard through a video to the jury, which showed that it can effectively cut meat and can be disassembled for cleaning. In addition, Barnett testified about other saws that use self-deploying guards, demonstrating general acceptance of the principles behind Barnett‘s design, as well as showing a lower “error rate.”
In addition, Crawford argues that FEG‘s contentions regarding whether or not users would purchase Barnett‘s proposed design go to the weight of Barnett‘s testimony, and not to its reliability. Whether the benefits of his proposed blade guard would outweigh its costs and risks, Crawford says, is a typical jury question. Thus, FEG‘s testimony regarding the alternative design‘s increased costs, new hazards, or decreased usefulness was all properly weighed by the jury.
Ultimately, it seems to us that most of the issues FEG raises with Barnett‘s testimony are objections going to the weight of his testimony regarding his alternative design, and not objections to its admissibility. See Quiet Tech. DC-8, Inc., 326 F.3d at 1345 (identifying methodological flaws that “impugn the accuracy of. results” without questioning the “general scientific validity of . . . methods” is “precisely the role of cross-examination” and “go[es] to the weight, not the admissibility, of the evidence“); see also Daubert, 509 U.S. at 596 (“Vigorous cross-examination, prеsentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.“).
For example, FEG argues that Barnett‘s auto-deploying blade guard could be “easily bypassed” by locking the guard in place. This goes to the weight of the evidence—that is, whether the proposed design actually makes the user safer. The same applies to “the additional cost,” the “introduction of an air compressor,” and “the new tripping hazards,” all of which are factors that FEG raised vigorously on cross-examination and were placed in front of the jury. See Quiet Tech. DC-8, Inc., 326 F.3d at 1345 (“The identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination.“). Arguments that an alternative design costs too much, or does not increase safety as much as it claims to, are arguments that go to the weight of the expert‘s testimony, and not its admissibility.
FEG does not question Barnett‘s qualifications. Indeed, the evidence suggests that he is among the foremost experts in the
A frequently used and effective methodology in proving the availability of an alternate design that is safer than the challenged design involves building an alternate design or creating a mathematical or computer model. See, e.g., Quilez-Velar v. Ox Bodies, Inc., 823 F.3d 712, 718-20 (1st Cir. 2016). FEG relies on just this kind of testing, or the lack thereof, when it cites McGee v. Evenflo Co., No. 5:02-CV-259-4(CAR), 2003 WL 23350439 (M.D. Ga. Dec. 11, 2003). Such testing would either physically reconstruct an accident and empirically determine which design was safer or would use a mathematical model to adduce the same information.
In the circumstances of this case, we conclude that Barnett adequately tested his alternate design. Indeed, by constructing an alternate design he employed a standard method of testing. Barnett‘s model saw in effect modified the Hobart 6614 saw itself by adding an automatic blade guard, operated by a foot pedal. When the operator depresses the pedal to begin sawing meat, the blade guard is lifted; when the operator releases his foot from the pedal, the blade guard automatically returns to its safe position. Barnett tested the model, applied for a patent, and submitted it for peer review in the American Journal of Mechanical Engineering. The jury even saw a video of Barnett demonstrating the operation of his model.
Thus, the jury saw the efficacy and safety of the alternative model. The demonstration showed how the model would prevent the injury in this case. We note that the evidence in this case showed that Crawford‘s injury was typical of injuries that inevitably would occur because of human error when a blade guard that is not automatically deployed leaves the blade unguarded when the operator in a busy meat department is interrupted by intervening duties and distracted.3 The jury could see in the operation of Barnett‘s model that when the operator is thus distracted and leaves his post at the saw, the foot pedal is released and the blade guard automatically deploys.
The jury could also see that the Barnett model simply adapts FEG‘s own Hobart 6614 saw, and that the efficiency and utility of the Barnett model would be comparable to that of the 6614 saw. In other words, the demonstration of the Barnett model showed that FEG‘s own saw could have been readily altered to include an automatic blade guard, thus undermining FEG‘s argument that the other saws with automatic blade guards existing at the relevant time of manufacture were not the Hobart 6614‘s competitors because they were smaller and unable to handle the volume of meat cutting. And Barnett testified that the cost of materials he usеd in modifying the Hobart 6614 was a mere $264. Thus, Barnett‘s testing and demonstration before the jury was probative evidence that his alternative design was feasible with respect to utility (e.g., volume of meat that could be cut) and economically or commercially feasible as well.
B. Barnett‘s Supplemental Affidavit
FEG proposes a second reason that part of Barnett‘s testimony should have been excluded: part of it, introduced in a supplemental affidavit discussing meat saws designed by other companies, was untimely disclosed.
FEG argues that the supplemental affidavit was untimely, and, with respect to the justification excuse, it argues that Crawford had no justification for submitting the new affidavit after the expert report deadline because it was not based on new information, but was based on continued research. With respect to the harmless excuse, FEG argues that the supplemental affidavit was submitted after Barnett was deposed, and that FEG “could not adequately probe [the matter] before trial.” FEG brief at 26. Crawford, on the other hand, argues that Barnett‘s affidavit did not violate
We need not decide whether there was a violation of
III. SUFFICIENCY OF THE EVIDENCE OF NEGLIGENT DESIGN
FEG argues that the district court misapplied Florida‘s negligent design law, and that under the proper test, there is not sufficient evidence to demonstrate negligent design. The standard of review for sufficiency of the evidence is de novo, but the jury‘s verdict is entitled to deference: all evidence and inferences must be in the light most favorable to the prevailing party, and the Court must ask whether there was any legally sufficient basis for the verdict, remembering that credibility determinations, evidentiary weighing and inference drawing are jury functions. See Pensacola Motor Sales, Inc. v. Eastern Shore Toyota, LLC, 684 F.3d 1211, 1226 (11th Cir. 2012).
FEG argues that the district court discussed Crawford‘s burden of proof in highly general terms; it instructed the jury that Crawford needed to demonstrate that FEG‘s model 6614 meat saw was not designed with “reasonable care” and was not “reasonably safe for use in a foreseeable manner.” The district court should not have used this general negligence language, FEG says; rather, it should have employed either the “risk utility” test, cited with approval by the Florida Supreme court in Aubin v. Union Carbide Corp., 177 So.3d 489, 505 (Fla. 2015), or the “consumer expectations” test, also mentioned in Aubin. The risk utility test balances six factors to determine whether a product‘s risk outweighs its utility to the consumer; if it does, it is negligently designed. The six factors are: (1) likelihood/gravity of potential injury balanced against its utility, (2) availability of
other safe products to meet the same need, (3) obviousness of the danger, (4) public knowledge/expectation of the danger, (5) adequacy of instructions and warnings, and (6) the ability to eliminate/minimize the danger without impairing the product or making it too expensive. Radiation Tech., Inc. v. Ware Constr. Co., 445 So.2d 329, 331 (Fla. 1983). The consumer expectations test, meanwhile, focuses on whether the product was more dangerous than the ordinary consumer would reasonably anticipate. Aubin, 177 So.3d at 503.
Crawford contends that Florida courts do not actually apply either of these tests in negligent design cases, only in strict liability cases. Negligent design cases are instead governed solely by whether a defendant breached its duty of reasonable care. Jennings v. BIC Corp., 181 F.3d 1250, 1256-57 (11th Cir. 1999).
failing to give such instructions. Rather, FEG argues on appeal only that there is insufficient evidence to satisfy either test and therefore plaintiffs’ claim fails.
We conclude that there is sufficient evidence introduced at trial to satisfy Florida‘s risk utility test and is sufficient to uphold a verdict of negligent design. Considering the evidence in the light most favorable to Crawford, there was a “legally sufficient basis for a reasonable jury” to conclude that a defect existed with respect to the Hobart 6614. See Pensacola Motor Sales, 684 F.3d at 1226. FEG lists six factors that, it argues, bear on whether a product‘s risk outweighs its utility. We think that there is strong evidence as to three of the factors that could lead a reasonable jury to conclude that the model 6614 meat saw fails the risk utility test, and weaker evidence with respect to the other three factors.
First, as to the likelihood or gravity of potential injury as compared to a product‘s utility (factor one): A reasonable jury could conclude that a blade guard that does not automatically slide into place when the saw is not in use poses the likelihood of a grave injury—amputation—while not seriously enhancing the saw‘s utility. Indeed, this is the entire crux of Professor Barnett‘s testimony. The jury also heard testimony from Dr. Edwards, a human factors engineer, on how performance deteriorates when workload increases and people can—and will—make inevitable mistakes.
Second, as to the availability of other, safer products to meet the same need (factor two): This is supplied both by Professor Barnett‘s proposed alternative design and his introduction of other meat saws that use automatically deploying blade guards. D.E. 71 at 67, 82. Professor Barnett demonstrated his meat saw via video. D.E. 71 at 91-93. Professor Barnett also testified that automatic blade guard technology had long been known, and that the materials and concepts necessary to design and manufacture his alternative design were in existence when the saw was designed in the late 1990s and manufactured in 2010. See D.E. 71 at 67, 135. The jury heard testimony from FEG that meat saws with automatic blade guards will inevitably be smaller and thus cannot process a sufficient quantity of meat and “meet the same need” as the model 6614, but there is sufficient evidence in the record to conclude that the jury did not act unreasonably in finding otherwise.
Third, as to the manufacturer‘s ability to eliminate/minimize danger without seriously impairing the product/mаking it unduly expensive (factor six): FEG presented a significant amount of testimony arguing that Professor Barnett‘s alternative design was not economically or mechanically efficient. Two experts, Hyde and Bader, testified that Professor Barnett‘s design would
$264 more to produce. D.E. 71 at 90, 135. And Professor Barnett provided persuasive testimony that his alternative model was not only economically feasible, but also could efficiently handle the necessary large volume of meat. His testimony also effectively rebutted the cleaning and tripping challenge. We cannot conclude that the jury was unreasonable in implicitly finding that the proposed cleanliness and tripping issues would not render Barnett‘s design “seriously impaired.”
While there is strong evidence in this record with respect to factors one, two, and six that the risk of danger of the Hobart 6614 outweighs its utility, the evidence with respect to factors three, four, and five is closer to neutral. Factors three and four are the obviousness of the danger and the public knowledge or expectation of the danger. These factors are closely related. Crawford did testify that it would be “obvious” that he would be seriously injured if he left the blade guard up while the saw was running and not in use. But the key issue in this case is the utility and added safety of a blade guard designed to protect users from accidentally coming into contact with the saw when it was not in use. The core of Professor Barnett‘s testimony was that these inevitable, accidental injuries could be prevented at little cost to the manufacturer with an automatically deploying blade guard. So a jury could conclude that, while the danger from a moving meat saw is in one sense obvious, there will always be accidents caused by human mistakes. Thus, factors three and four are closer to being neutral, but the jury could have reasonably found that they too suggest that the risks involved with the Hobart 6614 outweigh its utility.
The fifth factor is the adequacy of instructions or warnings: FEG did warn аgainst leaving the blade guard up while the saw was not in use. But a jury could reasonably conclude that some accidents will happen due to human nature, and that a warning or instruction manual will not be sufficient to prevent those. Only an automatically deploying blade guard would prevent injury from such inevitable human mistakes. Thus, a jury reasonably could find this factor neutral or providing some support for the risk of the Hobart 6614 outweighing its utility.
Balancing the factors, we conclude that the evidence introduced at trial was sufficient to support a finding that the Hobart 6614 fails the risk-utility test.
We also conclude that the evidence introduced at trial was sufficient to support a finding that FEG‘s saw failed the consumer expectations test. The consumer expectations test “considers whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.” Aubin, 177 So.3d at 503. Again, the plaintiffs introduced significant evidence through both of their experts that there will inevitably be accidental injuries caused by the saw operator‘s inability to maintain one hundred percent focus one hundred percent of the time. But while these lapses are, in the long run, inescapable, they are by no means obvious to the typical user of meat saws. It is thus not dispositive that FEG emphasizes Crawford‘s 40 years of meat saw experience and his testimony that the Hobart 6614 “worked exactly as I expected it to work.” The core danger demonstrated by the evidence at trial was not specifically the obvious danger presented by the blade of the meat saw, but more precisely the inability of a human operator in a busy and
Given this evidence, the ordinary consumer might well expect that a manufacturer would build into its machines a mechanism to protect the user from himself, as it were. No saw operator likely thinks that he will ever come into contact with an unsheathed blade. But the testimony of Professor Barnett and Edwards provided evidence on the basis of which a jury could find that an ordinary consumer would expect a reasonable manufacturer to provide such a safety measure that was readily available, feasible both economically and otherwise, and the need for which was foreseeable.
The standard for this sufficiency challenge is whether “there was any legally sufficient basis for a reasonable jury” to conclude that the Hobart 6614 failed the consumer expectations test. Pensacola Motor Sales, 684 F.3d at 1226 (emphasis added). We conclude that the record provides sufficient evidence that an ordinary consumer would expect to be protected from their own inevitable lapses in attention.
Thus, we reject FEG‘s challenge to the sufficiency of the evidence.
IV. STATE-OF-THE-ART INSTRUCTION
FEG argues that it is entitled to a new trial because the district court did not instruct the jury on Florida‘s state-of-the-art defense.6 The court‘s decision not to grant a new trial is reviewed for abuse of discretion. Pensacola Motor Sales, 684 F.3d at 1224.
Florida law provides that “[i]n an action based upon defective design, brought against the manufacturer of a product, the finder of fact shall consider the state of the art of scientific and technical knowledge and other circumstances that existed at the time of manufacture, not at the time of loss or injury.”
However, in this case, we do not need to determine whether the state-of-the-art defense applies to strict liability claims only, or to both strict liability and negligent design claims. We will assume arguendo—but expressly do not decide—that it applies with equal force to both kinds of claims.
Second, the parties did not dispute the state of the art available at the time in 2010.8 It is clear that there was automatic blade guard technology as of 2010 (and, indeed, well before 2010). Professor Barnett so testified. His affidavit, supplementing his report, revealed at least three meat saws using automatic blade guards as of the date of manufacture in 2010, and Professor Barnett discussed them in his trial testimony, as well as his experience that the technology had long been available in the industry, as far back as 1917. In 2007, there was even a recommendation from OSHA that the meat industry install self-deploying blаde guards. D.E. 71 at 84. FEG never disputed this fact. Rather, it argued only that the meat saws using the automatic blade guard technology were all small, and that the technology had not been applied to meat saws capable of cutting the volume of meat necessary in a large meat department, so the technology could not be feasibly applied in that context. The plain language of Florida‘s state-of-the-art statute directs the finder of fact to consider the state of the art of “scientific and technical knowledge” at the time of manufacture. Whether or not such technical knowledge had actually been applied on a meat saw with adequate capacity, and whether or not such application was feasible,
Moreover, the jury was instructed on the proper substantive standard for negligence. The district court‘s instruction provided: “Negligence is the failure to use reasonable care, which is the care that a reasonably careful designer and manufacturer would use under like circumstances. Negligence is doing something that a reasonably careful designer and manufacturer would not do under like circumstances or failing to do something that a reasonably careful designer and manufacturer would do under like circumstances.” D.E. 84 at 8 (emphasis added); see also
For these reasons, there is no basis to think that the outcome of the trial would have been any different had the district court given the requested state-of-the-art instruction. We will therefore affirm as to this issue.
V. INTRODUCTION OF OSHA REPORTS
Finally, FEG argues that the district court improperly admitted summaries of OSHA reports of fatalities and catastrophes—plaintiffs’ Exhibit 7, a compilation of eight summaries of incident reports of injuries involving meat saws—on two grounds: hearsay and relevance. The district cоurt‘s decision to admit evidence is reviewed for abuse of discretion. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989).
A. Hearsay
The district court acknowledged that the OSHA reports were hearsay, but concluded that they fell under the Federal Rules of Evidence public records exception, which provides in relevant part:
Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . .
(8) Public Records. A record or statement of a public office if: (A) it sets out: . . . (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
FEG argues that the OSHA reports fail the Beech Aircraft test because they lack sufficient indicia of trustworthiness. FEG makes several arguments: that the reports do not reveal the
FEG also argues that the reports contain multiple levels of hearsay. If a statement contains multiple levels of hearsay, each level must satisfy an exception to the hearsay rule. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir. 2009) (citing
Crawford argues that the OSHA reports fall squarely within the government records hearsay exception. They are “factual findings from a legally authorized investigation.”
We agree with Crawford that the OSHA reports were properly admitted under the public records exception to the general bar on hearsay.11 The reports are not “mere collection[s] of statements from a witness,” but are “factual findings that are based upon the knowledge or observations of the preparer of the report.” Mazer, 556 F.3d at 1278 (internal citations and quotations omitted). Indeed, the OSHA reports fall squarely within the public records exception for “factual findings from a legally authorized investigation,”
In short, FEG has adduced no evidence that the OSHA reports lack trustworthiness. All FEG has done is hypothesize that the investigators might have been biased, unskilled, or inexperienced (notwithstanding OSHA‘s published assurances that its investigators shall be “appropriately trained or experienced,” and notwithstanding the common sense notion that a public official would act with particular care when investigating a fatality or catastrophe). We are unwilling to conclude that mere anonymity—in the absence of any evidence of lack of trustworthiness—is sufficient for a court to infer that OSHA investigators were biased, unskilled, or inexperienced. This is especially true because the burden of proving lack of trustworthiness is on FEG.
FEG‘s reliance upon mere speculation that the investigators might have been unskilled, inexperienced, or biased is at war with the purpose and justification for the public records exception. As the Advisory Committee noted: “justification for the [public records] exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.” Drawing upon the Advisory Committee notes and numerous authorities, the concurring opinion of Judge Tjoflat in Rainey v. Beech Aircraft Corp., 827 F.2d 1498 (11th Cir. 1987),12 expresses well this policy underlying
Broad admissibility of public records containing evaluative conclusions (i.e., normative judgments drawn from the analysis of facts) is good policy because these reports are presumptively reliable.
Rule 803(8)(C) is premised on “the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.” Fed. R. Evid. 803 advisory committee‘s note. Admission of public records can be justified by the probability that the officials conducting the investigation (who themselves are under a public duty) will be careful and discriminating in selecting the factual data upon which to rely in reaching their findings and conclusions. Most investigators under a public duty lack a motive to distort the facts or their conclusions.
827 F.2d at 1512-13 (internal citations and quotations omitted).
Of course, this presumption of regularity accorded to public records by
As noted above, FEG also argues that the OSHA reports should have been excluded because they contained double hearsay. In denying without prejudice FEG‘s motion in limine, the district court
For the foregoing reasons, we cannot conclude that the district court committed reversible error in admitting the OSHA reports and rejecting FEG‘s hearsay objection.
B. Relevance
FEG also argues that the circumstances underlying the accidents described in the OSHA reports are not sufficiently similar to Crawford‘s injury to be relevant.
This Court has concluded that prior similar incidents illustrating a potential design defect are admissible if (1) the proponent makes a showing that the prior accidents are substantially similar, (2) the prior accidents are not too remote in time, and (3) the probative value of the evidence outweighs any potential prejudice or confusion. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015); Borden, Inc. v. Fla. E. Coast Ry. Co., 772 F.2d 750, 755 (11th Cir. 1985). “We have held that evidence of similar accidents might be relevant to the defendant‘s notice, magnitude of the danger involved, the defendant‘s ability to correct a known defect, the lack of safety for intended uses, the strength of a product, the standard of care, and causation.” Jones v. Otis Elevator Co., 861 F.2d 655, 661 (11th Cir. 1988) (internal quotations omitted).
FEG contends that the prior incidents are not substantially similar because none of them involved a scenario in which an employee was injured after leaving the saw on, walking away from the machine and then returning to it, and reaching over the saw. In one of the OSHA reports, the employee turned off the saw but did not lower the guard; in another, an employee gestured to another butcher; in another, the operator‘s hand was wet and slipped while lowering the guard; and in another, the operator left the saw running and adjusted the guard higher than necessary.
FEG also contends that the probative value of the reports was outweighed by potential prejudice. Crawford‘s attorneys asked FEG‘s expert Bader about almost all of the OSHA reports, in addition to asking how many more similar incidents occurred that were not reported to OSHA. Crawford‘s opening and closing statements mentioned the OSHA reports and inferred “many other[] [injuries] that have not been reported.”
Crawford also argues that the admission of the reports did not have any significant unfair prejudicial impact. The district court limited the admission of the reports during Professor Barnett‘s testimony. The reports were raised again when Crawford cross-examined FEG‘s expert Bader, but defense counsel did not object or point to any unfair prejudice so that the experienced trial judge could have exercised his discretion to limit the cross-examination.
We conclude that the district court‘s admission of the OSHA reports was not an abuse of its broad discretion. The reports were clearly relevant. They illustrated the common-sense danger of an unguarded saw blade that was a major focus of the testimony of Crawford‘s expert, Professor Barnett, as well as the foreseeability that human error and an unguarded saw blade would inevitably combine to cause injury, as both of Crawford‘s experts testified. The reports were also relevant on the issue of whether FEG had notice of the danger,13 and to impeach FEG‘s longtime employee and expert witness Bader, who testified that the Hobart 6614 saw was reasonably safe and that Crawford‘s injury was not reasonably foreseeable.
FEG does not (and could not) seriously argue that the OSHA reports are not relevant. Rather, the focus of its argument is that the reports are not substantially similar to the instant accident. For several reasons, we readily conclude that the district court did not abuse its discretion in ruling that the OSHA reports were substantially similar. Every report involved either the same blade guard used on the Hobart 6614 saw, or one substantially similar in that it had to be moved into place manually by the operator. Every report involved careless operator error resulting from distraction or other lack of focus or inattentiveness—all manifestations of the inevitаble human error about which Crawford‘s human factors expert testified, as well as Professor Barnett. Thus, the OSHA reports were substantially similar in the manner most relevant in this case—i.e., the serious danger that exists, and the foreseeable serious injury (e.g., amputation of fingers, hands, or arms) that occurs when inevitable human error combines with an unguarded saw blade. In almost all of the reports, it is probable that an automatically deployed blade guard would have protected the operator from his or her own human mistake and avoided injury. The reports were also timely. Six of the eight occurred in or before the 2010 date of manufacture of the Hobart 6614 model.
FEG also argues that the prejudice and confusion outweighs the probative value of the OSHA reports. We cannot conclude that the district court abused its broad discretion in this regard. As noted above, the probative value was considerable. The reports were clearly relevant to indicate the magnitude of the danger posed by an unguarded saw blade, especially when combined with the inevitable human error apparent in the incidents reported by
[W]e conclude that the probative value of the evidence of the [prior] August 31, 1978 incident would not have been outweighed by the possibility of unfair prejudice to FEC. The trial judge is accorded broad discretion in determining whether evidence should be excluded under
Rule 403 and we will only reverse when there has been a clear abuse of discretion. Without question, admission of the еvidence would have been adverse to FEC, but unfair prejudice as used inRule 403 cannot be equated with evidence that is simply adverse to the opposing party. We do not see how any prejudice to FEC resulting from the admission of evidence of the August 31, 1978 incident would have been “unfair.” FEC argues that since it does not know the identities of the vandals in the August 31, 1978 incident, the evidence would be unduly prejudicial because it would be unable to distinguish the two incidents. We find this contention untenable because we fail to see how FEC‘s lack of knowledge concerning the perpetrator‘s identities has any impact on its ability to foresee that the switching and signalling systems could be vandalized in this particular manner.
772 F.2d at 756 (internal citations and quotations omitted). We cannot conclude that the district court here abused its broad discretion in rejecting FEG‘s argument that unfair prejudice outweighed the considerable probative value of the OSHA reports.14
For all of the foregoing reasons, we cannot conclude that the district court abused its broad discretion in admitting the OSHA reports.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court in all respects.
AFFIRMED.
TJOFLAT, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion, except for parts II.A and V, because it errs in two significant ways. First, it applies the wrong legal standard to determine whether portions of Professor Barnett‘s trial testimony should have been excluded under
I.
“If a party fails to prоvide information or identify a witness as required by
The drafters of the Rules intended to give parties “a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from [their own] witnesses” by requiring disclosure of testimony “sufficiently in advance of trial.”
However, the drafters also recognized that the strong medicine of automatic exclusion can be “unduly harsh” in certain situations.
[T]he inadvertent omission from a
Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a person so listed by another party; or the lack of knowledge of a pro se litigant of the requirement to make disclosures. In the latter situation, however, exclusion would be proper if the requirеment for disclosure had been called to the litigant‘s attention by either the court or another party.
Under this standard, the District Court was required to exclude Professor Ralph Barnett‘s testimony about other patents and saws unless the
A.
The District Court initially set the deadline for expert disclosures as September 1, 2017, and the parties agreed to extend it to September 15, 2017. On September 15, the parties exchanged expert reports. Barnett‘s expert report expressed the opinion that FEG negligently designed the Hobart 6614 because it did not implement a concept that, while feasible, was not used on any commercial meat saws at the time of the Hobart‘s manufacture. On December 1, 2017, FEG filed a Daubert motion and a motion for summary judgment addressing the weaknesses of this specific expert opinion.1 In their response, Plaintiffs attached an affidavit from Barnett supporting a completely new and improved theory of liability.2 Barnett‘s affidavit, dated December
negligent in failing to be an industry trailblazer. Instead, it was that the Hobart 6614 was “outdated,” and that FEG was lagging behind its competitors, for whom automatic blade guards were “the state of the art.”3
Plaintiffs’ memorandum in response to FEG‘s motion for summary judgment ran with this new theory and asserted that the existence of the competitor saws raised factual disputes that precluded summary judgment.4 In doing so, Plaintiffs completely
In this situation, the district judge should have asked two simple questions: First, was Plaintiffs’ failure to include the competitor saws and patents in Barnett‘s original expert report a mere mistake? Second, did FEG already know of the competitor saws and patents? If the answer to either question was no, then
Instead of doing what
After trial, in its order denying FEG‘s renewed motion for judgment as a matter of law, the District Court doubled down on its
In sum, the District Court erred by applying the wrong standard to the
B.
Today, the majority repeats the District Court‘s mistake and applies a permissive harm standard that tolerates the precise unfairness that
Under the majority‘s approach, a court assessing harm under
First, as already explained, the mаjority‘s approach frustrates the purpose of
Second, the majority gives itself powers that
Third, the majority fails to appreciate the impact of Barnett‘s affidavit on Plaintiffs’ negligent design claim. The majority reasons that Barnett‘s late affidavit—listing meat saws and patents in existence at the time of the Hobart‘s manufacture—was harmless because Barnett‘s initial expert report showed that the meat saw industry knew that automatic blade guard technology existed. This reasoning assumes that the difference between a feasible alternative design and an actual alternative design is largely immaterial. On the contrary, the difference is important under any potential theory of negligence.6
Under the consumer-expectations theory, the question is whether the product “failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.” Aubin v. Union Carbide Corp., 177 So.3d 489, 503 (Fla. 2015). Industry standards—i.e., the products actually produced by manufacturers—directly inform consumers’ reasonable expectations. Id. (noting that the consumer expectations test “intrinsically recognizes that a manufacturer plays a central role in establishing the consumers’ expectations for a particular product“). Alternative designs that are merely feasible, by contrast, have little or no bearing on consumers’ reasonable expectations.
The distinction is also important under the risk-utility test. Under that test, courts are to consider as separate factors the “availability of other, safer products to meet the same need” and “the ability to eliminate or minimize the danger without seriously impairing the product or making it unduly expensive.”7 Radiation Tech., Inc. v. Ware Constr. Co., 445 So.2d 329, 331 (Fla. 1983). The focus of the former factor is the existence of safer alternative designs on the market. The focus of the latter is the technological and economic feasibility of safer alternative designs.
Finally, the difference is important under a general negligence approach that looks to whether the defendant acted as a reasonably careful designer or manufacturer under the circumstances. Industry standards are strong evidence of what constitutes reasonable care. Seaboard Coast Line R. Co. v. Clark, 491 So. 2d 1196, 1198 (Fla. Dist. Ct. App. 1986). If many products in the industry use a safety mechanism
Evidenсe that the Hobart 6614 could have been designed with an automatic blade guard, therefore, is different from evidence that Hobart‘s competitors were using such a design. That Barnett‘s initial expert report included the former does absolutely nothing to reduce the harm caused by the untimely disclosure of the latter.
In sum, the District Court erred by applying the wrong harm standard and admitting expert evidence that did not comply with
C.
FEG raised its
As the majority notes, the applicable standard for negligent design under Florida law is unclear. FEG argues that two paths exist: the consumer-expectations test and the risk-utility test. The consumer-expectations test “considers whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.” Aubin, 177 So.3d at 503. Meanwhile, the risk-utility test balances six factors to determine whether a product‘s risk outweighs its utility to the consumer. The six factors are: (1) likelihood/gravity of potential injury balanced against its utility, (2) availability of other safe products to meet the same need, (3) obviousness of the danger, (4) public knowledge/expectation of the danger, (5) adequacy of instructions and warnings, and (6) the ability to eliminate/minimize the danger without impairing the product or making it too expensive. Radiation Tech., 445 So.2d at 331. The risk-utility test, unlike the consumer-expectations test, “requires plaintiffs to establish a reasonable alternаtive of how a product could have been designed.” Aubin, 177 So.3d at 494–95.
Plaintiffs claim that neither the risk-utility test nor the consumer-expectations test applies to negligent design cases. Instead, Plaintiffs insist that the applicable standard looks to “whether the defendant‘s design creates a generalized and foreseeable risk of harming others.”
Although no case directly addresses what standard applies in negligent design cases, the Florida Supreme Court‘s decision in Aubin sheds light on the issue. In Aubin, the Florida Supreme Court held that the consumer-expectations test applies in strict products liability cases, rejecting the argument that the risk-utility test is the exclusive standard. Aubin, 177 So.3d at 510–11. In so holding, the Court noted that the purpose of strict products liability is to make it easier for consumers to recover than it is in negligence cases. Id. at 511. According to the Court, the risk-utility test would frustrate this purpose
The Aubin court‘s discussion allows for two important inferences. First, if the consumer-expectations test were applicable in negligent design cases, then it would not be easier for a plaintiff to recover in strict products liability than in negligence. Therefore, the consumer-expectations test must not be applicable in negligent design cases. Second, while the risk-utility test may be one way to prove negligent design, it is not the only way.8 This is evident from the Aubin court‘s statement that the risk-utility test poses a higher burden than what is applicable in negligence cases. There must be another, less burdensome standard by which a plaintiff can prove negligent design.
Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla. 1976), provides guidance on what this less burdensome standard might be. Evancho addressed the liability of automobile manufacturers for defective design in second collision cases.9 The negligence standаrd articulated by the Court was: “The manufacturer must use reasonable care in design and manufacture of its product to eliminate unreasonable risk of foreseeable injury.” Id. at 204.
The Florida Standard Jury Instruction for negligent design also supports the standard suggested by Evancho. It provides:
Negligence is the failure to use reasonable care, which is the care that a reasonably careful [designer] would use under like circumstances. Negligence is doing something that a reasonably careful [designer] would not do under like circumstances or failing to do something that a reasonably careful [designer] would do under like circumstances.
This Court‘s decision in Jennings v. BIC Corp., 181 F.3d 1250 (11th Cir. 1999), also analyzed a negligent design claim under Florida law using general negligence principles rather than the risk-utility or consumer-expectations tests. In Jennings, we addressed a manufacturer‘s liability in strict liability and negligence for injuries caused by the manufacturer‘s failure to child-proof disposable lighters. We first rejected the plaintiffs’ strict liability claim because we found that the lighter was put to an unintended use—as a children‘s plaything. Id. at 1256. We then turned to the negligent design claim and noted that “Florida courts impose different standards in assessing liability under negligence and strict products liability.” Id. We stated that the threshold inquiry for a negligent
All of this strongly suggests that negligent design under Florida law may be proven by referencе to general negligence principles. In other words, a plaintiff need not wedge his case into the risk-utility mold. Therefore, the question in this case is whether, excluding Barnett‘s testimony about other saws and patents, the evidence was legally sufficient for a jury to conclude that Plaintiffs were injured because FEG failed to act as a reasonably careful designer under the circumstances.
At trial, the jury heard evidence of the foreseeable dangers posed by the Hobart 6614 and saws like it. Specifically, Plaintiffs produced a video of the incident at issue in this case and OSHA reports about injuries sustained by operators of precursor saws to the Hobart 6614. Plaintiffs’ other expert, Dr. Mark Edwards, also testified about the human tendency to become distracted and make mistakes in busy work environments—a phenomenon which he claimed contributed to Plaintiffs’ injury.
The jury also heard Barnett testify about his proposed alternative design. While the blade guard on the Hobart 6614 had to be manually deployed, the blade guard on Barnett‘s saw was self-deploying. This means that an operator of Barnett‘s saw could walk away from the machine while it was running and a mechanism would automatically cover the blade to prevent injury. Barnett claimed that if the Hobart 6614 had used his design, Plaintiffs’ injury would not have occurred. Edwards echoed this opinion. Barnett also stated that nothing about the state of the art at the time the Hobart 6614 was manufactured would have prevented FEG from using a self-deploying blade guard.
On the other hand, FEG produced testimony that could cause doubt about whether FEG could have used a design like Barnett‘s on the Hobart 6614 without
compromising its function and creating other dangers. Specifically, FEG‘s expert Jack Hyde testified that Barnett‘s proposed alternative design would be difficult to clean and would create a risk of passing bacteria into the meat that it cuts. Furthermore, Brian Bader, an engineer for FEG, testified that Barnett‘s design would create “operational issues,” such as tripping over the foot switch that controls the self-deploying blade guard.
A reasonable jury could conclude, based on the above evidence, that FEG was negligent because it failed to design the Hobart 6614 with a self-deploying blade guard, and that this failure caused a foreseeable injury to Plaintiffs. FEG‘s countervailing evidence—calling Barnett‘s design into question and showing that FEG warned about the possibility of injury—was not so overwhelming as to preclude a negligence finding as a matter of law.11 Accordingly, although the District Court erred in admitting Barnett‘s testimony about competitor meat saws and patents, this error does not amount to a ground for reversal.
II.
The District Court erred in declining to instruct the jury on the state-of-the-art defense. This error entitles FEG to a new trial.12
“The District Court abuses its discretion by failing to give a requested instruction only when ‘(1) the requested instruction correctly stated the law, (2) the instruction dealt with an issue properly before the jury, and (3) the failure to give the instruction resulted in prejudicial harm to the requesting party.‘” Mamani v. Sanchez Bustamante, 968 F.3d 1216, 1245 (11th Cir. 2020) (quoting Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1333–34 (11th Cir. 2011)). There is no dispute that FEG‘s requested instruction correctly stated the law. Rather, the parties disagree about whether Florida‘s state-of-the-art defense applies to a claim for negligent design, and whether FEG was prejudiced by the District Court‘s failure to instruct. Florida‘s state-of-the-art defense is best interpreted to apply to claims for negligent design, and the District Court‘s failure to instruct the jury on the defense was not harmless. Therefore, FEG is entitled to a new trial.
A.
The general purpose of the state-of-the-art concept “is to protect a manufacturer from liability for failure to anticipate safety features that were unknown or unavailable at the time a product was manufactured and distributed.” Am. Jur. 2d Products Liability § 1199 (2020). In some states, the concept acts as an affirmative defense to a products liability action, such that a defendant who prоves that his
The Third Restatement of Torts notes that the term “state of the art” is subject to multiple definitions. Restatement (Third) of Torts § 2 cmt. d (Am. Law Inst. 1998). Conforming to the state of the art may mean “that the product design conforms to industry custom, that it reflects the safest and most advanced technology developed and in commercial use, or that it reflects technology at the cutting edge of scientific knowledge.” Id. Although industry custom is often relevant to state of the art, the two concepts are distinct. “[I]n products liability actions, ‘custom in the industry’ refers to what is being done in the industry, and ‘state of the art’ refers to what feasibly could have been done.” Am. Jur. 2d Products Liability § 1199 (2020). Thus, the state-of-the-art defense does not “insulate an entire industry from liability just because every member of that industry was manufacturing and distributing a product known to be inherently dangerous.” Id.
Florida‘s state-of-the-art defense statute provides:
In an action based upon defective design, brought against the manufacturer of a product, the finder of fact shall consider the state of the art of scientific and technical knowledge and other circumstances that existed at the time of manufacture, not at the time of loss or injury.
Put simply,
B.
Plaintiffs argue that the District Court properly refused to instruct the jury on
Plaintiffs’ argument is unpersuasive. Under Florida law, defective design may be proven under either a negligence or strict liability theory. Jennings, 181 F.3d at 1255–58; see also Ford Motor Co. v. Hill, 404 So.2d 1049, 1051–52 (Fla. 1981). Nothing in the language of
Furthermore, Plaintiffs have failed to identify a case or statute from any jurisdiction saying that the state-of-the-art defense is appropriate in strict liability but not in negligence.13 This is not surprising. As this Court observed in Norton v. Snapper Power Equipment, Division of Fuqua Industries, Inc., 806 F.2d 1545, 1549 (11th Cir. 1987), the applicability of the state-of-the-art defense in negligence is widely accepted. It is in strict liability that the defense is uncertain.14 Norton, 806 F.2d at 1549. Plaintiffs have offered no convincing argument that
C.
A district court‘s failure to properly instruct the jury is only reversible when the failure resulted in prejudicial harm to the requesting party. Mamani, 968 F.3d at 1245. Prejudicial harm occurs when the jury instructions as a whole leave us “with a substantial, ineradicable doubt as to whether the jury was properly guided in its deliberations in this regard.” Id. (quoting United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007)) (quotation marks omitted).
The majority concludes that even if the District Court erred in declining to instruct the jury on the state-of-the-art defense, the error was harmless. According to the majority, the instruction would have made no difference because the parties agreed on both the relevant time period and the state of the art at that time. The only thing the parties disputed, says the majority, was whether automatic blade guard technology could be feasibly adapted to the Hobart 6614. Furthermore, to the extent there was any harm from the failure to instruct, the majority asserts it was cured by the negligence instruction given the jury. I respectfully disagree.
As I explained above,
First, because of the District Court‘s failure to instruct, there is a substantial risk that the jury considered evidence that
Second, the state-of-the-art instruction was necessary to ensure that the jury considered evidence it was required to consider.
The majority believes that any harm FEG may have suffered from the failure to instruct was cured by the negligence instruction. However, the effect of that instruction is fundamentally different from the state-of-the-art instruction. The negligence instruction provides:
Negligence is the failure to use reasonable care, which is the care that a reasonably careful designer and manufacturer would use under like circumstances. Negligence is doing something that a reasonably careful designer and manufacturer would not do under like circumstances or failing to do something that a reasonably careful designer and manufacturer would do under like circumstances.
This instruction merely informs the jury that, in assessing whether the defendant used reasonable care, it is required to consider the circumstanсes. Unlike
* * *
For the foregoing reasons, the District Court‘s failure to instruct the jury on the state-of-the-art defense was reversible error, and FEG is entitled to a new trial. I respectfully dissent