Osie COOK, Jr., and Lisa Cook, Plaintiffs-Appellants, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., and Mid-Century Insurance Co., Defendants-Appellees. Osie COOK, Jr., and Lisa Cook, Plaintiffs, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Defendant-Appellee, and Mid-Century Insurance Co., Defendant-Appellant.
Nos. 90-3093, 90-3433 and 90-3556.
United States Court of Appeals, Seventh Circuit.
Argued May 9, 1991. Decided Aug. 5, 1991. As Amended Aug. 15, 1991.
Rehearing Denied Oct. 25, 1991.
940 F.2d 207 | 21 Fed.R.Serv.3d 356 | 33 Fed. R. Evid. Serv. 1441
Before CUDAHY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Mark A. Kircher, Frank J. Daily, argued, Quarles & Brady, Milwaukee, Wis., Michael R. Conner, Arend J. Abel, Barnes & Thornburg, Indianapolis, Ind., Timothy J. McDermott, Tripp, Scott, Conklin & Smith, Fort Lauderdale, Fla., Michael D. Flanagan, Whyte & Hirschboeck, Milwaukee, Wis., for Navistar Intern. Transp. Corp.
Jack M. Freedman, Barnes & Thornburg, Judith M. Cannavo, Indianapolis, Ind., Donald P. O‘Meara, Mitchell, Baxter & Zieger, Milwaukee, Wis., for Mid-Century Ins. Co.
FLAUM, Circuit Judge.
In July 1983, plaintiff Osie Cook, Jr.,1 was driving a semi-trailer tractor designed and built by defendant Navistar2 when the lights on the trailer began to flicker. Cook pulled the truck (a 1981 model 9670) to the side of the road in order to check the electrical connections behind the cab. As he attempted to mount the rear of the cab area, his foot slipped from one of the steps, and he injured his back.
Plaintiff brought a product liability suit in state court, alleging that Navistar caused his injury by negligently designing the steps and handles (“the climbing system“) leading to the rear of the cab area, and failing to warn users about the proper way to access the rear of the cab area. Defendant removed the case to federal district court, where it was tried to a jury. After a two-week trial, the jury determined that although the defendant was 40% responsible for the injury due to its negligent design of the climbing system, the plaintiff was 60% responsible for his own injury. Under Wisconsin law, Cook was precluded from recovering any damages for his injuries. Plaintiff now appeals the adverse verdict, claiming that the district court made several erroneous evidentiary rulings during the course of the trial.
The climbing system on defendant‘s model 9670 truck has three components: (1) a small oval fold-down step located on the side of the fuel tank; (2) a larger rectangular step on the top of the fuel tank; and (3) a vertical hand rail on the rear of the cab. Shortly before trial, defendant filed a motion in limine to exclude the introduction of a federal regulation governing climbing systems on trucks that became effective the year after Cook was injured. The regulations, found at
The defendant also moved to exclude reference to two other steps it experimented with on the model 9670: (1) a rectangular fold-down step it had used for a period of time prior to the accident in this case; and (2) a round fold-down step it installed after the accident. Navistar had designed and installed the rectangular step to meet the requirements of the pending section 399 regulations, but later determined that it was not a feasible replacement. Navistar discontinued use of the rectangular step and returned to the small oval step. Navistar argued, and the district court agreed, that reference to the rectangular step would require Navistar to introduce the section 399 regulations to explain why it changed the design of the step from the small oval step it had been using. The round step was also designed to meet the section 399 regulations and in fact came to replace the oval fold-down step in subsequently built 9670s. Reference to the round fold-down step was prohibited under the subsequent remedial measure provision of the Rules of Evidence. See
At trial, Cook testified that he slipped when he had one foot on the oval fold-down step and one hand on the rail. As he was lifting himself up to place his free foot on the rectangular step, his foot slipped from the small oval step. He testified that he prevented himself from falling to the ground by hanging on to the rail with his hand, but that his lower body twisted as a result of the slip, and he injured his back. Cook also testified that Navistar had never instructed him how to access the rear of the cab. He admitted, however, that his employer had instructed him on the safe means of getting in and out of the cab and that he knew that using “three-point contact” was safer than the two-point contact he was using when the accident occurred. In the three-point contact method, three of the climber‘s four limbs are in contact with the system at all times—either two feet and one hand, or two hands and one foot. Cook admittedly had only two-point contact with the truck when the injury occurred—his right foot and his left hand.
Cook and his expert witness testified at trial that using three-point contact on the model 9670 truck was difficult, if not impossible, to accomplish because of its poor design. Plaintiff‘s expert testified that the climbing system appeared to be “tacked on” to the truck after the vehicle was designed and that the designers failed to integrate a safe climbing system into the truck‘s original design. He also testified that the oval step was too small and shallow to be used safely, and that the distance between the first and second step was too large. During the expert‘s testimony, plaintiff attempted to introduce a number of articles and studies to establish the extent of defendant‘s knowledge of design practices and standards in the industry. The defendant objected on several grounds (including hearsay, relevancy, and authenticity), and the district court ruled the evidence inadmissible.
Defendant countered plaintiff‘s case with evidence that a “fifth percentile female”3 could maintain three-point contact with the climbing system on the 9670 at all times. Defendant also demonstrated that several different means of using the climbing system existed, implying that plaintiff‘s method was not the safest. In addition, evidence suggested that plaintiff told people after the accident that he slipped off of the larger top step, rather than the smaller bottom step. Finally, defendant introduced evidence that it had no notice of prior falls from the bottom step.
At the close of defendant‘s case, plaintiff attempted to introduce rebuttal evidence relating to Navistar‘s knowledge of prior accidents involving the oval fold-down step. Plaintiff sought to introduce the testimony of two witnesses who would have testified that they “had heard of others” falling from the oval step. The district court rejected the plaintiff‘s request, however, on grounds that plaintiff could have offered this evidence in his case-in-chief and thus the evidence was not “real rebuttal evidence.”
Navistar first claims that we lack subject matter jurisdiction because plaintiff filed a defective notice of appeal. When plaintiff originally filed suit in this case in state court, state procedural rules required that, in addition to Navistar, Cook also name Mid-Century Insurance Co., which issued a worker‘s compensation policy to Cook‘s employer, Schneider Transport, in his suit. Cook did so, but Mid-Century was essentially uninvolved in the underlying product liability litigation. After the case was tried to the jury, the district court entered judgment on plaintiff‘s claim against Navistar, but failed to rule on the claim against Mid-Century. Plaintiff nonetheless filed a notice of appeal from the court‘s October 4, 1989 order (Appeal No. 90-3093). The district court‘s error was spotted in this court, and the case was dismissed as premature. Plaintiff returned to the district court and filed a motion for a revision of judgment. In response, the district court issued a
In his notice of appeal filed on November 8, 1990 (Appeal No. 90-3556), plaintiff claimed to be appealing “the final judgment” entered on “the 4th day of October, 1989, the revised Judgment of September 5, 1990 and the further revised Judgment of October 12, 1990.” As Navistar notes, the plaintiff failed to identify the court‘s
Navistar relies on Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), to support its argument that this court lacks jurisdiction. In Torres, the Court held that an appellant‘s inadvertent failure to include his own name on a notice of appeal deprived the court of jurisdiction over the appeal under the provisions of
III.
Navistar next contends that we are precluded from reaching the merits of plaintiff‘s evidentiary arguments because, under Wisconsin law, once both parties are found negligent (as in this case) and the jury determines the parties’ relative contribution to the injury, all evidentiary squabbles regarding the effect of excluded evidence fall by the wayside. This is true, Navistar argues, because in Wisconsin the jury allocates causation between the two parties (as distinct from “blame“), and therefore the jury would not change its decision that the injury was caused by certain forces simply because it may have received additional evidence that one of the parties was more negligent than the other. Navistar thus contends that “the ‘magnitude’ of [its] negligence is simply irrelevant to the allocation of causal negligence, the determinative issue in this case.” Support for Navistar‘s argument comes from Taylor v. Western Casualty & Surety Co., 270 Wis. 408, 411-12, 71 N.W.2d 363, 365 (1955):
The apportionment of negligence is the peculiar province of the jury. The degree of negligence attributable to a particular party is not to be measured by the character thereof nor by the number of respects in which he is found to have been at fault. It is the conduct of the parties considered as a whole which should control. In other words, once it has been established that each has been negligent, it is then the jury‘s function to weigh their respective contributions to the result, which will, regardless of the nature of their acts or omissions, determine which made the larger contributions and to what extent it exceeds or is less than that of the other.
We note first that this passage does not unambiguously support Navistar‘s position. If, as Taylor suggests, the jury looks to “the conduct of the parties considered as a whole” in allocating damages, then a party who claims that the judge failed to allow it to provide the jury with the whole picture has a cognizable argument on appeal.
In any event, Taylor is no longer good law. Although the above-quoted language in Taylor was cited in passing in a case that discussed general principles of contributory negligence, see Collins v. Eli Lilly Co., 116 Wis.2d 166, 199, 342 N.W.2d 37, 53 (1984), the Wisconsin Supreme Court explicitly overruled Taylor in Lovesee v. Allied Development Corp., 45 Wis.2d 340, 346, 173 N.W.2d 196, 199 (1970). Noting that Taylor “no longer represents the law” of the state, the court in Lovesee made clear that “the nature or character or respects of negligence ... bear a relationship to cause,” and that in determining the parties’ contribution to the injury the jury had to determine “to what extent each party is to blame for the accident.” Id. at 345. The court explained that the language in Taylor and other cases of its era simply “meant [that] there was no mathematical formula” the jury should or could employ in allocating causation under comparative fault. Id. We therefore reject Navistar‘s claim that Wisconsin law precludes an investigation into the substance of the trial court‘s evidentiary rulings and their effect on the plaintiff‘s case.
IV.
We turn now to Cook‘s claim that the jury‘s verdict was skewed by the district court‘s evidentiary rulings. “Our standard of review in determining whether the district court committed reversible error in either the admission or exclusion of evidence is abuse of discretion.” Taylor v. National R.R. Passenger Corp., 920 F.2d 1372, 1375 (7th Cir.1990); see also Geitz v. Lindsey, 893 F.2d 148, 150 (7th Cir.1990); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th Cir.1988). This standard leaves Cook with “a heavy burden,” Geitz, 893 F.2d at 150, since ” ’ [u]nder the “abuse of discretion” standard of review, the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court.’ ” Nachtsheim, 847 F.2d at 1266 (quoting Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir.1984)). “The determination that [an error was made] ... does not of course end the inquiry, for not all errors warrant the reversal of the verdict below.” Harris v. Davis, 874 F.2d 461, 465 (7th Cir.1989); see also
Plaintiff focuses on the exclusion of evidence in four areas: (1) the industry publications; (2) the regulations found at
A. Industry Publications
Plaintiff claims that the district court erred in excluding certain industry publications he had offered. Plaintiff did not claim below that the industry literature was admissible under the “learned treatise” exception, see
I think this, that under the notion that these are admissible because these are what reasonable designers consider and, therefore, not for the truth or falsity of the facts contained therein is an unacceptable notion for the court. I just don‘t think you can put these things in without talking about the truth or falsity of what is contained in them.... In addition, I think some of these do have an actual factual authenticity problem.... Once I decide that I cannot accept these because ... I think it is naive to think they are not admitted for the truth or falsity, I think I‘d have to go to a hearsay analysis of the circumstance once I get by the authenticity problem.... [T]here are several exceptions to the hearsay rule that might be implicated by these documents, but I haven‘t heard any foundation on that and I haven‘t heard any testimony on that.
Transcript of Dec. 6, 1988, at 60-62. Despite the court‘s suggestion that the plaintiff attempt to introduce the evidence under a hearsay exception (or as a basis for his expert‘s opinion), the plaintiff continued to insist that the evidence was admissible under
On appeal, plaintiff returns to the argument that the industry publications were admissible to show the actual or constructive knowledge of the defendant and that in this case the defendant failed to manufacture a product of the quality that a reasonable engineer (having read these articles) would have produced. Plaintiff argues that he was forced to rely solely on his expert‘s testimony, unsupported by objective scientific evidence about the design problems identified in the industry. According to the plaintiff, this ruling was prejudicial to his case because it allowed the defendant to argue to the jury that it had manufactured the best product it knew how and the plaintiff was unable to rebut this assertion.
We conclude that any error in the trial court‘s ruling was harmless. It is true, as plaintiff argues on appeal, that the court should not have excluded the evidence in question as hearsay. The evidence was not offered for the truth of the matter asserted, it was offered to show actual or constructive knowledge and was admissible on that basis. See, e.g., Marsee v. United States Tobacco Co., 866 F.2d 319, 325-26 (10th Cir.1989) (publications admissible to show party‘s notice); Worsham v. A.H. Robins Co., 734 F.2d 676, 686-87 (11th Cir.1984) (reports admissible to show notice). But, as the defendant argues, the substance of the plaintiff‘s relevant proffered evidence was admitted during the testimony of his expert. Plaintiff‘s expert testified at length about the industry standards and practices in existence at the time the 9670 was manufactured. In doing so, the expert provided a basis for the jury to believe that the defendant had notice of prevailing design standards and that it did not, in fact, produce “the best system it could have” given this knowledge. The jury‘s finding that Navistar negligently designed the system supports the inference that the jury found the expert‘s testimony to be credible and persuasive. Plaintiff maintains, however, that the judge‘s exclusion of the industry publications “reduced a complex product liability action to a tainted battle of mere expert testimony.” While this characterization is questionable, we are convinced that the exclusion of the proffered evidence was harmless given the expert witness’ testimony at trial.
B. The Governmental Regulations
Plaintiff next claims that the district court erred when it excluded evidence of the existence of the section 399 regulations on grounds that its probative value was outweighed by its prejudicial effect. The district court thought the jury would apply the regulation retroactively to the defendant if admitted into evidence. Plaintiff claims on appeal that the court failed to give sufficient weight to the probative value of the regulations when it ruled them inadmissible. The district court determined that it could not formulate a limiting instruction that would adequately prevent the jury from applying the regulation retroactively. While the plaintiff claims that the court could have devised an effective limiting instruction, he does not proffer such an instruction himself. Without further support, the plaintiff has failed to demonstrate that the district court‘s decision was an abuse of discretion. We believe that the district court‘s decision to exclude evidence of a governmental regulation that did not become effective until a year after the defendant manufactured an allegedly defective product was within the court‘s discretion and reject plaintiff‘s claim to the contrary.
The district court barred evidence regarding the existence of the earlier rectangular step on grounds that it would inevitably lead to the introduction of the section 399 regulations that the court had earlier deemed inadmissible. The defendant, reasoned the court, would have had to rely on the regulations to explain why it had altered the design of the step in the first place. Plaintiff claims that the court improperly excluded introduction of the earlier step under
D. The Rebuttal Evidence
Finally, plaintiff challenges the district court‘s decision to preclude the introduction of rebuttal evidence. After defendant presented its case, plaintiff sought to introduce as rebuttal the testimony of two truck drivers who had previously worked with Cook. The witnesses were to testify that they had heard of similar falls from the defendant‘s trucks.5 The district court rejected this evidence on two grounds: (1) the evidence was not proper rebuttal evidence because it could have been offered in plaintiff‘s case-in-chief; and (2) testimony that the witnesses “had heard of other falls” was independently inadmissible under
On appeal, the plaintiff argues strenuously that the evidence was proper rebuttal evidence because it refuted evidence that could not possibly have been brought out in the plaintiff‘s case-in-chief; namely, the issue of contributory negligence. Plaintiff argues that he was not required to introduce the proffered evidence until the defendant put plaintiff‘s conduct in question in its own case. See, e.g., Benedict v. United States, 822 F.2d 1426, 1428 (6th Cir.1987) (” ‘plaintiff has no duty to anticipate or negate a defense theory in plaintiff‘s case-in-chief’ “) (quoting Martin v. Weaver, 666 F.2d 1013, 1020 (6th Cir.1981)). Even if this were true, the evidence plaintiff proffered (that two of plaintiff‘s fellow employees had heard of other falls from the oval step) was certainly excludable on the other grounds cited by the district court. There is a strong argument that the evidence was inadmissible on hearsay grounds, and the district court determined in its broad discretion that the evidence would have been prejudicial under
V.
In sum, the rulings of the district court regarding the admissibility of evidence in this product liability case were sound. The judgment of the district court is therefore AFFIRMED.