Bitler v. A.O. Smith Corp.Bitler v. A.O. Smith Corp.
COPYRIGHT MATERIAL OMITTED Daniel A. Nelson (Bruce A. Lampert, with him on the briefs), Schaden, Katzman, Lampert & McClune, Broomfield, Colorado, for Plaintiffs-Appellees Fred and Peggy Bitler.
Andrew M. Low (Peter J. Krumholz, with him on the briefs), Davis, Graham & Stubbs LLP, Denver, Colorado, for Defendant-Appellant.
Before LUCERO, McKAY and HARTZ, Circuit Judges.
LUCERO, Circuit Judge.
Danger lurked in Fred and Peggy Bitler‘s basement, liability for which is the occasion for the present appeal. Mr. Bitler was severely burned when a gas explosion occurred in the basement of his home. On filing a products liability suit against, inter alia, White-Rodgers as manufacturer of the gas control installed in his basement water heater, a jury returned a verdict finding negligence and product defect and awarded damages to the Bitlers. White-Rodgers’ motions for JNOV and a new trial having been denied by the district court, the present appeal followed. In contesting the jury verdict imposing products liability on it for the explosion, White-Rodgers assigns as principal error the district court‘s admission of plaintiffs’ expert testimony under Daubert principles. We exercise jurisdiction under
Fred and Peggy Bitler resided in a house provided for their use on the Oldland Ranch outside of Meeker, Colorado where Fred Bitler was a ranch hand. On the evening of the accident, July 25, 1996, Bitler discovered that there was no hot water when he attempted to shower. Hot water was supplied to the Bitlers’ home by a liquid propane hot water heater located in the basement. Donning sweat pants, he proceeded to the basement door, unlatched it, and walked approximately two-third‘s of the way down the staircase when a large explosion occurred, knocking him backwards. His wife, Peggy Bitler, was thrown off a sofa and onto the floor, which was later determined to have been raised several inches by the force of the explosion. Fred Bitler sustained severe burns, and after being flown by helicopter to a hospital, underwent multiple skin graft surgeries over the following weeks. It was established at trial that he has, in addition to general disfigurement, continuing problems with regulation of his body temperature, use of his hands, growth of hair follicles, and he will also need additional procedures in the future to develop nail growth on his hands. As a result of the injuries he sustained in this accident, he is no longer able to perform the duties appertaining to his former occupation as a cowboy and ranch hand.
There were three gas propane appliances in the Bitlers’ home — a cook stove in the kitchen, a furnace in a bedroom, and a space heater in one of the bedrooms. Gas was supplied to the water heater via unsupported, flexible copper tubing that ran along the basement ceiling joints. A “T-fitting” was located above the hot water heater which provided branches running to the hot water heater and the space heater. Post-accident inspection revealed a minor leak at the inlet to the bedroom heater, and a leak at the “T-connector.”
White-Rodgers, a subdivision of Emerson Electric Co., manufactured the water heater gas control used in the Bitlers’ hot water heater. This gas control regulates the flow of gas to the pilot and main burner of the water heater, and is designed to fulfill a crucial safety role if the pilot light is extinguished. To avoid a gas leak that could lead to an explosion or fire, the gas control is designed to shut off all gas flow to the pilot when the pilot is extinguished. As is well known, a lit pilot heats a thermocouple which in turn creates an electric current energizing an electromagnet that holds the safety valve open against the force of a spring. So long as the pilot is lit, the safety valve remains open. If the pilot goes out, however, the thermocouple will no longer be heated and will no longer produce a current to energize the electromagnet, allowing the spring to snap the valve shut. The safety valve seat is made of rubber, and is designed to create a seal against a circular metal surface when closed to prevent the flow of gas to the pilot.
Copper sulfide is a frequent contaminate found in gas and propane lines. If copper sulfide particles of sufficient size become lodged on a safety valve seat when a pilot is extinguished, the particles may prevent the valve from sealing, resulting in a gas leak. It was established that numerous accidents have occurred in this manner, and that copper sulfide contamination was a significant source of concern for White-Rodgers. As a consequence, White-Rodgers modified the design of the safety valve in 1978 and began installing a wire mesh screen in the gas inlet, upstream from the safety valve to prevent copper sulfide particles from migrating onto the rubber valve seat. In further recognition of the safety hazard caused by copper sulfide contamination, White-Rodgers recalled all gas controls lacking the mesh screen in 1980. Thereafter, White-Rodgers also began adding another safety feature to the mesh screen by installing a deflection “baffle” to aid in preventing debris from reaching the valve and to hold the edges of the mesh screen in place more effectively. The safety valve installed in the Bitler‘s water heater was one of about 200,000 devices produced in the interim that contained the mesh screen, but did not contain the baffle.
During post-accident testing of the safety valve installed in the Bitlers’ water heater, the device was disassembled in the presence of representatives of both White-Rodgers and the Bitlers. Copper sulfide particulate contamination was discovered downstream of the mesh screen and found on the safety valve seat. During the teardown, a test of the valve revealed that it snapped shut as designed. Plaintiffs’ expert, Donald Sommer, opined at trial that a mix of copper sulfide particles and grease located on the safety valve seat caused the leak. Mr. Sommer testified that the valve seat was altered after the accident when the control was turned to the “off” position; furthermore, he testified that because copper sulfide contamination leads to intermittent leaks, the teardown test could not be determinative. Whether the particles found on the safety valve were large enough or of sufficient quantity to have caused the gas leak in the present case is hotly disputed.
Having marshaled their expert witnesses and having ruled out to their satisfaction all other sources of the gas leak save for the gas control on the water heater, the Bitlers filed suit in Colorado State Court against White-Rodgers, as well as A.O. Smith Corporation, which manufactured the water heater, and National Propane Corporation, which installed and maintained the water heater and propane piping in the house. After removing the case to federal district court, defendants moved for summary judgment, contesting the admission of the plaintiffs’ expert testimony as insufficiently reliable and lacking a firm foundation in science. In an order denying the motion, the trial judge found that the Bitlers’ proposed expert testimony was relevant and reliable in accord with the standard required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The matter proceeded to a two-week jury trial, at the close of which the jury returned a verdict against White-Rodgers and National Propane, attributing fifty percent of the fault to National Propane and forty percent to White-Rodgers, and awarding $2,319,492.27 in damages to the Bitlers. As to White-Rodgers specifically, the jury found both negligence and product defect. In its order of October 30, 2002, the district court denied White-Rodgers’ motions for judgment as a matter of law and for a new trial. This appeal followed.
II
We review de novo whether the district court properly performed its role as “gatekeeper” in admitting or excluding expert testimony. Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.2003) (“Though the district court has discretion in how it conducts the gatekeeper function, we have recognized that it has no discretion to avoid performing the gatekeeper function.“). We review for abuse of discretion the manner in which the district court exercises its Daubert “gatekeeping” role in making decisions whether to admit or exclude testimony. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997), 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). We will not, however, disturb a district court‘s ruling absent our conviction that it is arbitrary, capricious, whimsical, manifestly unreasonable, or clearly erroneous. Goebel v. Denver and Rio Grande W. R.R. Co., 346 F.3d 987, 990 (10th Cir.2003). The district court must, however, make specific factual findings on the record which are sufficient for an appellate court to review the trial court‘s conclusion concerning whether the testimony was scientifically reliable and factually relevant. Dodge, 328 F.3d at 1223. Our standard of review of a trial court‘s factual findings in pursuit of its gatekeeping role does not vary when examining exclusion or admission of expert testimony. Our focus on review mirrors that of the trial judge‘s assessment of the testimony itself: we are concerned with the trial court‘s performance of its obligation under
We review de novo whether the district court properly performed its role as “gatekeeper” in admitting or excluding expert testimony. Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.2003) (“Though the district court has discretion in how it conducts the gatekeeper function, we have recognized that it has no discretion to avoid performing the gatekeeper function.“). We review for abuse of discretion the manner in which the district court exercises its Daubert “gatekeeping” role in making decisions whether to admit or exclude testimony. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997), 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). We will not, however, disturb a district court‘s ruling absent our conviction that it is arbitrary, capricious, whimsical, manifestly unreasonable, or clearly erroneous. Goebel v. Denver and Rio Grande W. R.R. Co., 346 F.3d 987, 990 (10th Cir.2003). The district court must, however, make specific factual findings on the record which are sufficient for an appellate court to review the trial court‘s conclusion concerning whether the testimony was scientifically reliable and factually relevant. Dodge, 328 F.3d at 1223. Our standard of review of a trial court‘s factual findings in pursuit of its gatekeeping role does not vary when examining exclusion or admission of expert testimony. Our focus on review mirrors that of the trial judge‘s assessment of the testimony itself: we are concerned with the trial court‘s performance of its obligation under
*
White-Rodgers assigns as a principal source of error the district court‘s performance of its Daubert gatekeeping functions. We begin our inquiry into the admissibility of the Bitlers’ expert testimony with
First, a district court must determine if the expert‘s proffered testimony — whether it concerns scientific, technical, or other special knowledge — has “a reliable basis in the knowledge and experience of his [or her] discipline.” Id. at 592; see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999), 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding that Daubert‘s general principles apply to all expert matters under
The plaintiff need not prove that the expert is undisputably correct or that the expert‘s theory is “generally accepted” in the scientific community. Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702‘s reliability requirements.
Mitchell, 165 F.3d at 781 (citation omitted).
Providing guidance as to the kinds of factors that might bear on a judge‘s gatekeeping determination, the Supreme Court has suggested that a court consider: (1) whether a theory has been or can be tested or falsified, (2) whether the theory or technique has been subject to peer review and publication, (3) whether there are known or potential rates of error with regard to specific techniques, and (4) whether the theory or approach has “general acceptance.” Daubert, 509 U.S. at 593-94. The Court has made clear, however, that this list is neither definitive nor exhaustive and that a trial judge has wide discretion both in deciding how to assess an expert‘s reliability and in making a determination of that reliability. Kumho Tire Co., 526 U.S. at 150, 152-53; see also Velarde, 214 F.3d at 1208-09. While these factors are most relevant in the context of a new and novel scientific theory — asking if it has been tested, subjected to peer review and publication, etc. — they do provide examples of the general kinds of issues a trial court need probe in light of its purpose of ensuring that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. Failure to consider one, or even any, of these factors, albeit suggestive, will not be dispositive of a district court‘s failure to fulfill its gatekeeping role because that role depends on the underlying factual circumstances of the particular case.
Accordingly, a trial court‘s focus generally should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions. Daubert, 509 U.S. at 595. Although it is not always a straightforward exercise to disaggregate method and conclusion, when the conclusion simply does not follow from the data, a district court is free to determine that an impermissible analytical gap exists between premises and conclusion. See Joiner, 522 U.S. at 146; Dodge, 328 F.3d at 1222. When examining an expert‘s method, however, the inquiry should not be aimed at “the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.” Daubert, 509 U.S. at 597.1 Thus it is the specific relation between an expert‘s method, the proffered conclusions, and the particular factual circumstances of the dispute, and not asymptotic perfection, that renders testimony both reliable and relevant.
B
In fulfilling its Daubert gatekeeping function, the district court, in its order denying summary judgment to the defendants, focused on two expert witnesses proposed by the Bitlers: Elden Boh and Donald Sommer. On reviewing the record, we note that the actual testimony offered at trial does not differ in material respects from either Boh‘s or Sommer‘s depositions as analyzed by the district court on motions for summary judgment. Nonetheless White-Rodgers argues that the magistrate judge was required to perform a gatekeeping role by entertaining anew, during pre-trial proceedings, defendant‘s objections to the testimony of Sommer; the magistrate judge instead treated District Judge Nottingham‘s order denying summary judgment as law of the case, and refused to consider de novo the issue of whether to admit the Bitlers’ expert testimony. It is clear, however, that because White-Rodgers did not raise new issues concerning the reliability of the Bitlers’ expert witnesses, the district court did not fail to perform its Daubert role merely by refusing to reconsider the question of admissibility that had already been decided. Daubert does not require a district court to linger at the “gate,” as if caught in Zeno‘s paradox, unable to proceed to the main trial without first conducting a series of mini-trials with regard to every objection raised against a party‘s expert witnesses.
As to reliability regarding Boh‘s testimony, the district court specifically found that Boh‘s methodology in reaching his conclusion about the cause of the explosion was sound. Employing his experience and knowledge as a fire investigator, Boh observed the physical evidence at the scene of the accident and deduced the likely cause of the explosion. Although such a method is not susceptible to testing or peer review, it does constitute generally acceptable practice as a method for fire investigators to analyze the cause of fire accidents. See Kumho Tire Co., 526 U.S. at 150 (“the relevant reliability concerns may focus upon personal knowledge or experience“). Nothing in
We turn to the issue whether the Bitlers’ experts, particularly Sommer, were required to test their theory. No doubt, Daubert noted that a key factor in valid scientific methodology is the practice of testing hypotheses to determine whether they can be falsified. Daubert, 509 U.S. at 593 (citing Karl Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (5th ed.1989), who emphasized the importance of testing scientific theories to determine whether they can withstand critical scrutiny). One object of Popper‘s method of falsification as a way of testing a scientific theory is to acknowledge that any scientific theory is subject to future refutation through further observation and testing. Popper‘s emphasis, however, is aimed at theories purporting to explain the causal relations among regularly occurring natural phenomena. (Ptolemy‘s theory of the movement of celestial bodies which hypothesized that the Earth was the center of the solar system, later falsified by Copernicus, is a prominent example of such a scientific theory subject to falsification by further inquiry.) Although we would not conclude from the citation to Popper, or the logical positivist Carl Hempel, id. at 593, that the Supreme Court intended to limit a district court‘s consideration of whether testing would assist the trier of fact only to those instances of scientific knowledge aimed at such causal relations, we do find the emphasis suggested by the citations instructive.
For example, in Truck Ins. Exch. v. MagneTek Inc., 360 F.3d 1206, 1211-1212 (10th Cir.2004), plaintiff attempted to introduce evidence of a novel theory, “pyrolysis,” which hypothesized that wood could ignite at temperatures much lower than normal under particular circumstances. We affirmed the district court‘s decision to exclude this evidence because plaintiff‘s experts had failed to test their novel theory sufficiently to demonstrate its scientific reliability. Id. at 1213. When an expert proposes a theory that modifies otherwise well-established knowledge about regularly occurring phenomenon, such as the normal ignition temperature of wood, we would expect the importance of testing as a factor in determining reliability to be at its highest. Here, by contrast, plaintiffs’ experts propose a theory about how the accident occurred given the known science of copper sulfide particulate contamination as a cause of propane gas leaks. What distinguishes the present case is that the need for testing is not at its highest because the reliability of the science of copper sulfide contamination is not in dispute, and thus the district court did not abuse its discretion in finding that the presence of a screen did not alter the reliability of the fundamental science.
Whether the Bitlers established that the copper sulfide particles and grease found on the valve seat caused this accident is a matter the district court determined goes to the sufficiency of the evidence — not its scientific reliability. Defendants misunderstand what is at stake in a reliability analysis when they claim that the mere addition of a screen fundamentally and necessarily changed the nature of the underlying science such that the district court abused its discretion in admitting plaintiffs’ expert testimony. No doubt, presence of the screen changed the causal analysis the jury was required to conduct based on the conflicting evidence presented, but the presence of a screen did not change the analysis into one that necessarily required further testing to determine its scientific reliability. The core science — that copper sulfide particles are the kind of thing that when lodged on the valve seat can cause leaks — is sufficiently well-established that the district court did not abuse its discretion in finding it reliable. The core dispute — whether copper sulfide particles found on the valve seat in this case were sufficient to cause a leak — is one the district court could properly determine is a question for the jury. In light of this evidentiary dispute, the Bitlers need only establish by a preponderance of the evidence that copper sulfide particles caused the gas explosion in their basement. See. e.g., Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 719 (Colo.1987). Had their experts conducted further tests on their water heater‘s safety valve and established by observation that it did intermittently fail, they may have established causation to a near certainty. But such a high degree of certainty is not required.2 Thus, because testing is not necessary in all instances to establish reliability under Daubert, and because the district court reasonably found that it was not required by the particular factual circumstances of this case, we conclude that the district court did not abuse its discretion in admitting the Bitlers’ experts’ testimony.
Here, however, the Bitlers’ experts use a general method more aptly characterized as a process of reasoning to the best inference.5 The Bitlers’ experts must reason, as it were, backwards to the cause of a single explosion, and to do so requires a process of eliminating possible causes as improbable until the most likely one is identified. For example, Sommer and Boh both testified to how they eliminated the gas leaks in the bedroom and the T-connector above the water heater as likely sources of the accident; the one was not located close enough to the source of the explosion, and the other was itself most likely the result of trauma caused by the explosion. Sommer testified that the force of the explosion lifted the house off its foundation, and accordingly, was the most probable cause of the leak at the T-connector, especially in light of its damaged physical condition. Experts must provide objective reasons for eliminating alternative causes when employing a “differential analysis.” See Clausen, 339 F.3d at 1058. Furthermore, the inference to the best explanation must first be in the range of possible causes; there must be some independent evidence that the cause identified is of the type that could have been the cause. See Joiner, 522 U.S. at 146 (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.“). But more than mere possibility, an inference to the best explanation for the cause of an accident must eliminate other possible sources as highly improbable, and must demonstrate that the cause identified is highly probable.6 In the present case, it is uncontroverted that if copper sulfide particles of sufficient size became lodged on the safety valve seat, then a gas leak substantial enough to cause the explosion in the Bitlers’ basement could occur. Whether or not that actually occurred is a question that may be answered by inference to the best explanation.7 We see no abuse of discretion, especially in light of our deferential standard of review, in the district court‘s admitting expert testimony that employs an expert‘s physical investigation, professional experience, and technical knowledge to establish causation in this case.
Thus, in summation, we conclude that in fulfilling its gatekeeping role pursuant to the Federal Rules of Evidence and Daubert, the district court did not abuse its discretion in making its “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-3.
III
White-Rodgers argues on appeal that safety valve models lacking an inlet screen are substantially dissimilar from models containing the mesh screen and therefore the district court abused its discretion in admitting plaintiff‘s evidence of accidents involving the unscreened devices.
At trial, the Bitlers introduced evidence of accidents which involved a model of safety valves exactly the same as the one in the Bitlers’ water heater save for the absence of the inlet screen. These accidents occurred when copper sulfide particles contaminated the safety valve of unscreened safety controls, preventing the valve from closing fully and resulting in a gas leak. The purpose of this evidence was to demonstrate a key element of the Bitlers’ theory of causation: if copper sulfide particles are allowed downstream to contaminate the valve seat, then the safety valve system could fail. Furthermore, the Bitlers argue that this evidence was necessary to prove notice to White-Rodgers of the potential for their safety valves to fail.
In response, White-Rodgers contends that they offered to stipulate to the failures of the unscreened device, and that therefore the admission of evidence involving accidents with unscreened controls was irrelevant. Although White-Rodgers admits that copper sulphide particles can cause leaks in unscreened models, they argue that there has been no demonstration that screened models are susceptible to sufficient contamination to cause leaks; therefore, they suggest that the presence of a screen makes the Bitlers’ safety control substantially dissimilar to unscreened devices. Moreover, because these other accidents involving unscreened controls resulted in injuries and deaths, White-Rodgers argues that the evidence was inherently prejudicial.
We review a district court‘s decision to admit evidence for abuse of discretion. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir.2000). As a threshold matter, we will admit evidence of prior accidents in a products liability suit if it is relevant to the present inquiry. Id. To determine relevancy, we must examine whether there is substantial similarity between the evidence offered of prior accidents and the facts at issue in the present case. “Before introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case.” Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir.1988); Black v. M & W Gear Co., 269 F.3d 1220, 1227 (10th Cir.2001). Determining whether and to what extent proffered evidence of prior accidents involves substantially similar circumstances will depend on the underlying theory of the case advanced by the plaintiffs. If the evidence of other accidents is substantially similar to the accident at issue in a particular case, then that evidence will assist the trier of fact by making the existence of a fact in dispute more or less probable, and the greater the degree of similarity the more relevant the evidence. See Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir.1992). Naturally, this is a fact-specific inquiry that depends largely on the theory of the underlying defect in a particular case. Id. Accordingly, the district court is owed considerable deference in its determination of substantial similarity.
With regard to the Bitlers’ proposed evidence of accidents involving unscreened devices, the district court ruled that these prior accidents involved substantially similar devices to the one involved in the present accident, and accordingly denied the defendant‘s motion in limine to exclude. In order to demonstrate notice and the existence of a defect, namely the consequences of copper sulfide contamination, the district court ruled that exact similarity between the devices was not required and its absence would not compel exclusion. We have routinely held that federal law permits introduction of substantially similar accidents to show notice, the potential existence of a defect, or to refute defense witness testimony. Four Corners Helicopters, Inc., 979 F.2d at 1440.
In light of the plaintiffs’ purposes of showing notice and defect, we do not require a showing of exact similarity, and hence we cannot conclude that the district court erred in admitting evidence it found substantially similar given the circumstances surrounding the Bitlers’ accident. In order to demonstrate that copper sulfide particles were capable of causing a gas leak when contaminating the safety valve seat, it was reasonable and relevant for the plaintiffs to introduce evidence of failures in substantially similar devices under substantially similar circumstances. If contamination could cause gas leaks absent an inlet screen, then if the plaintiffs could show that particles could get through or around the screen — the essence of the plaintiffs’ case — it would be reasonable for jurors to make a determination as to causation in the present case. Offering evidence that the industry was aware as early as 1967 that copper sulfide contamination could be a problem for gas control valves served the purpose of demonstrating notice to White-Rodgers and of highlighting the potential existence of a defect — part of the underlying theory of the plaintiff‘s case which goes to establish a standard in this case for “how substantial the similarity must be....” Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir.1987) (citation omitted). Indeed, the district court found that the similarity between the two models of safety valves, for purposes of the trial, was not only substantial, but constituted a “high degree of similarity” in light of other evidence demonstrating that even with the screen, copper sulfide particles were found downstream from the screen. (4 R. at 967.)
We see no error in the district court‘s finding. Accordingly, we hold that the district court did not abuse its discretion in admitting evidence of prior accidents involving unscreened safety valves.
White-Rodgers argues that the district court erred by giving a jury instruction on failure to warn of known and non-obvious defects in its safety valve. Whether a jury was properly instructed in accord with the applicable law and consistent with matters properly within its province is a question we review de novo. Gardetto v. Mason, 100 F.3d 803, 816 (10th Cir.1996). However, we will review for abuse of discretion a district court‘s exercise of its discretion in giving a particular jury instruction. Hynes v. Energy West, Inc., 211 F.3d 1193, 1197 (10th Cir.2000).
Arguing that the issue of a duty to warn was not supported by the evidence, and hence not a matter properly submitted to the jury, White-Rodgers objects to the district court‘s presentation of the following instruction to the jury:
If A.O. Smith and White-Rodgers, a wholly-owned division of Emerson Electric, as manufacturers or sellers of a product know or in the exercise of reasonable care should know that the use of the product may be harmful or injurious to a user, and such risk of harm or injury is not obvious to a reasonable user, then the manufacturer and seller must use reasonable care to warn the user of the risk of harm or injury if a reasonably careful person would under the same or similar circumstances. The failure to do so is negligence.
(13 R. at 3525.)
As a threshold matter, we are persuaded that White-Rodgers’ assignment of error to the district court‘s jury instruction on a duty to warn is not properly preserved for appeal. At trial, White-Rodgers objected generally to the jury instruction concerning a duty to warn, arguing only that there is neither a basis for, nor an issue of, a failure to warn.8 Defendant further objected that plaintiffs failed to establish any evidence for the instruction. Rejecting White-Rodgers’ inchoate objections, the district court found “that there is evidence sufficient to allow the jury to determine that White-Rodgers knew prior to this accident of the migration of copper sulfide around the screen only device, which the jury could conclude required a duty to warn.” (12 R. at 3057-58.)
On appeal, White-Rodgers now asserts that the jury instruction on a failure to warn was error because plaintiffs presented no evidence of proximate causation. Specifically, Appellant now argues that plaintiffs provided no evidence that a warning would have been effective or what the content of that warning would have been. However, at trial Appellants did not raise an objection as to proximate causation distinctly and did not identify specifically the grounds of the objection before the district court as required by
Accordingly, because White-Rogers’ objections were not properly specific, the issue of supposed error in the district court‘s jury instruction regarding failure to warn is not properly preserved for appeal.
V
In the alternative, failing success on its argument to reverse the jury verdict, White-Rodgers argues that the jury award of $150,000 for future wage loss and $75,000 for future medical expenses was not supported by any evidence. When we review a jury‘s award of damages, we will sustain the award unless it is clearly erroneous or there is no evidence to support the award. Hudson v. Smith, 618 F.2d 642, 646 (10th Cir.1980); Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1330 (10th Cir.1996).
With regard to the evidence of future wage loss, Mr. Bitler provided tax returns for the years prior and subsequent to the accident and provided testimony concerning his current employment prospects. There is no doubt that evidence was presented that his earnings have declined as a consequence of the accident, and that although he remains employable in some settings, his employment prospects have been substantially diminished. Furthermore, evidence was also offered of benefits he received as a ranch hand, but no longer receives, such as use of the furnished house where the accident occurred and a replacement heifer worth $850, that go beyond his salary as reflected by his tax returns. In light of our highly deferential stance regarding jury determinations of damages, we cannot say that there was no evidence presented to support a jury finding of future lost wages in the amount of $150,000.
Concerning the evidence of future medical expenses, there is no doubt that physician testimony and Mr. Bitler‘s testimony did not establish precise costs of any future procedures. One physician testifying, Dr. Hartford, described past problems with infections involving Mr. Bitler‘s skin grafts, and acknowledged a possibility of future infections. Mr. Bitler‘s plastic surgeon, Dr. Gordon, testified to the future need for procedures to develop Mr. Bitler‘s fingernails, which Bitler has elected to defer to a later time. (3 R. at 768.) Plaintiff argues that the jury could reasonably estimate future medical expenses based on the stipulation by the parties to past medical expenses. Clearly, such a basis for determining an award for future medical expenses is imprecise and on review is not based on specific and substantial evidence. But we do not review for substantial evidence; rather, we review for clear error whether there is any evidence to support the jury finding. Despite some estimation in the jury‘s award for future medical expenses, we cannot conclude, in light of our deferential review, that there is no evidence to support the award or that it was clearly erroneous.
Therefore, as to the jury awards for future wage loss and future medical expenses, we affirm.
VI
In the last issue in White-Rodgers’ appeal, appellant argues that the jury award of $25,000 for Mrs. Bitler‘s physical and emotional injury was excessive. Specifically, White-Rodgers argues that negligent infliction of emotional harm was not pled, and because Mrs. Bitler suffered only minor physical injuries in the accident, that the jury award is clearly excessive. We disagree. As appellant concedes, Mrs. Bitler may recover emotional injuries that flow from her own physical injuries. See, e.g., Williams v. Continental Airlines, Inc., 943 P.2d 10, 16 (Colo.App.1996). Because the circumstance surrounding her admittedly minor physical injury to her knee when the force of the explosion in the basement forced her off the sofa and onto the floor is itself quite traumatic, we cannot conclude that the jury had no basis for finding the emotional injury associated with her own experience of, and physical injuries from, the explosion — quite apart from the emotional trauma of seeing the injuries sustained by her husband — are grossly excessive. Accordingly, as to the jury‘s damage award for Mrs. Bitler‘s negligence claim, we affirm.
VII
For the reasons set forth above, we AFFIRM.