The plaintiffs bring this appeal from an unfavorable judgment below in their products liability suit against the manufacturer of a hand gun, claiming that various trial errors require reversal and a new trial. We affirm.
On the night of January 31, 1981, Fred Shields was riding in the front seat of his pickup truck along with two of his sons and his wife, Joyce, who was driving. As they traveled down a rural highway in Mississippi, Fred saw a deer in the distance at the side of the road. In an effort to scare the deer and prevent it from running in front of the truck, as he later testified, Fred decided to shoot at the deer with a .357 magnum single-action “old model” revolver, known as a Blackhawk, which had been brought from the Shields’ home. Before he could get the gun out of the window of the truck, however, it discharged into Fred’s right leg.
Fred and Joyce Shields brought this personal injury suit against Sturm, Ruger & Company, Inc. (Ruger), for strict products liability, negligent failure to warn, negligent design and negligent manufacture of the revolver. Fred claimed that as he tried to get the gun through the passenger-side window, he bumped the gun against the door frame. Experts testified for the plaintiff at trial that the revolver was defective because it could fire when it was not cocked if bumped or jarred. Ruger denied that the revolver was defective, denied that the gun fired because it was bumped, and alleged that Fred Shields caused the accident by his own negligence. The jury returned a general verdict for the defendant. After denial of their post-trial motions, the Shields brought this appeal.
The Shields claim that they are entitled to a new trial because of three errors committed by the district court. First, the Shields attempted to introduce more than 570 reports made by customers to Ruger involving accidental firings of the Black-hawk and other similar Ruger handguns. The district court admitted only about 70 such reports. Specifically, the trial court excluded all reports received by Ruger after the date of the Shields’ accident, all reports of accidental firings caused by something other than a bump, jar, movement, or drop, and all reports of accidental firings that did not specify the cause. Next, the Shields sought to introduce a study, the Rau Survey, that had been prepared by an expert for the defendant’s attorneys in a previous case. The district court granted the defendant’s motion in limine to exclude the Rau Survey on the grounds of work product immunity. The plaintiffs argued that the work product immunity had been waived by the disclosure of the report in open court in a previous case in California state court and that the defendants should be sanctioned for misrepresentations to the court concerning *381 the privilege. The district court held that the Rau Survey was privileged and that the defendants had not committed sanctionable conduct. Finally, the plaintiffs argue that the district court erred in defining for the jury the relative standards of care that would apply to the plaintiff as the user of a firearm and to the defendant as the manufacturer of a firearm. The court instructed the jury that the plaintiff would be held to a duty of extraordinary care in handling a firearm, whereas for negligence purposes, Ruger would be held to a standard of ordinary care in manufacturing the revolver.
Admissibility of Accident Reports
The accident reports submitted by the plaintiffs were not prepared by Ruger. They were not in any way admissions or business records of Ruger. Rather, these reports were statements, mostly letters, made to Ruger alleging that Ruger handguns had accidentally fired. These statements were clearly hearsay and inadmissible for any purpose that assumed the truth of those allegations. The statements were admissible, however, as tending to show Ruger’s notice, Ruger’s awareness of a danger.
Jackson v. Firestone Tire & Rubber Co.,
The trial court admitted approximately 70 of the approximately 570 exhibits for the purpose of proving notice only. The bulk of the excluded exhibits were received by Ruger after the date of the plaintiff’s accident. The trial court correctly held that evidence of notice to Ruger after the date of the plaintiff’s accident was not relevant. The remaining excluded exhibits were held inadmissible because the reports specified the cause of the accidental firing as one unrelated to the defect in this case or because the reports failed to specify a cause of the firing. For evidence of other accidents to be relevant in a products liability action, the other accidents must be “substantially similar” to the one at issue.
Jackson,
Work Product Privilege And The Rau Survey
The Shields argue that work product immunity for a document is waived whenever that document is disclosed in open court. Because the Rau Survey was disclosed in a trial in a California state court, the Shields argue that the district court erred in granting the defendant’s motion in limine excluding the report, erred in failing to compel discovery on the report, and erred in refusing to award sanctions against the defendant for its “misrepresentation” to the court that the survey was privileged. The defendant contends that the survey was put together in connection with another trial in anticipation of litigation and by a consulting expert retained specifically for that purpose. The defendants point out that they filed a similar motion in limine to exclude the survey in the California court, which was denied, that disclosure of the *382 report was compelled by the court pursuant to a protective order, that the report was introduced at trial by the plaintiffs over defendant’s objections, and that the defendant’s use of the report in the California trial was limited to rebutting the plaintiff’s allegations concerning the report.
The work product privilege is very different from the attorney-client privilege. The attorney-client privilege exists to protect confidential communications and to protect the attorney-client relationship and is waived by disclosure of confidential communications to third parties. The work product privilege, however, does not exist to protect a confidential relationship but to promote the adversary system by safeguarding the fruits of an attorney’s trial preparations from the discovery attempts of an opponent.
United States v. American Tel. & Tel. Co.,
The Rau Survey was prepared in anticipation of litigation by a consulting expert who was specially employed by Rug-er’s attorneys in preparation for trial and who was not expected to be called as a witness. The district court was unquestionably correct in concluding that the Rau Survey was protected by the work product privilege; the only question is whether that privilege was waived. When a party is compelled to disclose privileged work product and does so only after objecting and taking other reasonable steps to protect the privilege, one court’s disregard of the privileged character of the material does not waive the privilege before another court. The record is clear that Ruger’s attorneys asserted the privileged character of their work product at every opportunity before the California court, that they objected to any disclosure of the Rau Survey, and that they disclosed the survey under compulsion by the court, not voluntarily. Ruger did not waive its work product privilege before the California court, and that privilege was properly asserted and properly recognized by the district court below.
Standard of Care
In the district court’s instructions to the jury on the negligence causes of action, the district court instructed the jury that they should hold the plaintiff’s action to a standard of extraordinary care but that they should hold the defendant’s conduct in manufacturing the gun to a standard of ordinary care. Mississippi case law does not speak directly to either of these instructions. The Mississippi Supreme Court has held that one who uses a gun must use extraordinary care not to injure another, although no Mississippi court has ever addressed the question in a contributory negligence context.
See Shurley v. Hoskins,
AFFIRMED.