Mr. Birсhler was injured in an accident involving the Gehlbale 1500, a hay baler manufactured by the Gehl Company. Mr. Bir-chler and his wife sued Gehl for damages resulting from the accident. During the trial the Birchlers requested a jury instructiоn on a continuing duty to warn, alleging that Gehl became aware of the hazards of the Gehlbale 1500 between the time of their purchase and the time of the accident. The request was denied and thе jury found no negligence on the part of Gehl. The Birchlers appeal the failure of the District Court to provide their requested jury instruction. We affirm.
Background
Mr. Birchler bought a Gehlbale 1500A in June 1977. The Gehlbale 1500A is a hay baler which was manufactured by the Gehl Company. Mr. Birchler was seriously injured in an accident which occurred while he was working with his Gehlbale 1500A on August 12, 1990. The accident occurred when Mr. Birchler was feeding scraрs of hay into the baler by hand. He alleges that the accident resulted from the fact that the baler takes in hay faster than the operator can release it.
Mr. Birchler and his wife sued Gehl under multiplе negligence theories. One of the Bir-chlers’ theories was that Gehl breached a continuing duty to warn the Birchlers of any hazards of which Gehl became aware after the manufacture and salе of the baler. The Birchlers claimed that Gehl knew about three other accidents similar to Mr. Birchler’s and that Gehl was obligated to warn them of the supposed risk of injury.
The case was tried before а jury from June 5 to June 15, 1995. During the trial the Birchlers requested and were denied a jury instruction on continuing duty to warn. The jury returned a verdict in favor of Gehl. The District Court denied the Birchlers’ subsequent motion for a new trial based on the denial of the instruction. The Birchlers appeal these rulings. Gehl has moved to dismiss the appeal for lack of compliance with Rule 10 of the Federal Rules of Appellate Procedure.
Discussion
A. Rule 10(b)
First we must address Gehl’s motion to dismiss the appeal. Gehl claims that the Birchlers violated Rules 10(b)(1) and 10(b)(3) of the Federal Rules of Appellate Procedure. Rule 10(b)(1) requires an appellant to order for inclusion in the Record on Appeal any transcripts of the District Court proceedings necessary for a meaningful review by the Appellate Court. Fed. R. App. P. 10(b)(1). Rule 10(b)(3) requires an appellаnt who has
*520
not filed a complete transcript of the trial pursuant to Rule 10(b)(1) to file a statement of the issues the appellant intends to present on appeal and to serve it on the aрpellee. Fed. R.App. P. 10(b)(3). Further, we have held that “an appellate court has no alternative but to dismiss an appeal if the absence of the transcript precludes meaningful review”.
Fisher v. Krajewski,
Although the Birehlers claim that they attempted to comply with Rule 10(b)(1) by ordering “the complete transcripts of the Record on Appeal,” Appellant’s Response tо Appellee’s Motion to Dismiss at 1, we do not know what they mean by this. Rule 10(b)(1) requires that a transcript of the trial be ordered for inclusion in the Record on Appeal. Regardless of what the Birehlers meant by their statement, it is uncontroverted that the full transcript was not included in the Record on Appeal. In fact, only the testimony of Mr. Birchler’s treating physician, one expert witness and a portion of Mr. Birehler’s own testimony was included in the Record on Appeal. Clearly the Birehlers did not fully comply with Rule 10(b)(1).
The Birehlers did, however, have the alternative of complying with Rule 10(b)(3). Unfortunately, the Birehlers neither filed a stаtement of the issues they intended to raise on appeal, nor did they serve Gehl with such a statement. This process would have given Gehl notice that the Birehlers were filing a partial transcript and would have enabled Gehl to order any additional transcripts it felt were necessary to dispute the issues being appealed. While the Birehlers claimed that the appellee had a duty to filе and serve additional parts of the transcript that would be necessary, this is an erroneous reading of Rule 10(b)(3). Rule 10(b)(3) requires the appellant to file and serve the issues on appeal to alert the appеllee that it may wish to supplement the partial transcript that the appellant will be submitting.
Despite our finding that the appellants violated Rule 10(b), we may decide this case on its merits. Had we found that Illinоis law favored the appellants, we would not have been able to decide the appeal. The record would not be adequate for an application of law to the spеcific facts of this ease. However, we have determined as a matter of law that there is no continuing duty to warn in Illinois. Since the general principle is adverse to the appellants, there is no need to consider the specific facts of their case. The absence of much of the transcript, therefore, does not preclude meaningful review.
B. Continuing Duty to Warn
We will now explore in greater depth the question whether the trial court erred in refusing to instruct the jury that a manufacturer has a continuing duty to warn. Since this case has been brought under the diversity jurisdiction, the choice of law rules of thе forum state, Illinois, determine the applicable substantive law.
Klaxon Co. v. Stentor Elec. Mfg. Co.,
The Birehlers allege that Gehl knew of accidents similar to Mr. Birchler’s which happened while using the same Gehl hay baler, Gehlbale 1500A. They further contend that Gehl was negligent in failing to warn the Birеhlers of the potential hazard. The foundation of their argument is the contention that there is a continuing duty to warn when there is a disparity of knowledge of risk as between the manufacturer and the ownеr. Appellant’s Brief at 12. Therefore, the Birehlers argue, the District Court erred in fading to give a jury instruction without first evaluating the parties’ respective levels of knowledge.
*521
The Birchlers base their argument solely on
Seegers Grain Co., Inc. v. United States Steel Corp.,
The facts of Seegers distinguish it from the present case. Seegers involved a grain storage tank explosion which occurred because the steel which U.S. Steel sold to Seegers for construction of the tаnk was unable to withstand the cold winter temperatures of Illinois. A precisely similar accident occurred one month before the Seegers accident involving another grain storage tank only 175 miles away, yet U.S. Steel failed to warn Seegers of the danger. The Illinois appellate court found that a potential claim for duty to warn against U.S. Steel did exist. First, the court noted the steel sale was not a typical retail sale of a product to the general public. Rather, U.S. Steel had a relationship with Seegers such that U.S. Steel knew exactly how the steel was going to be used. Secоnd, the court noted that the Kokomo, Indiana, accident, which should have prompted U.S. Steel to warn Seegers of the risk, occurred less than a month after the construction of Seegers’ grain storage tank. Finally, and it appears most importantly, the court held that U.S. Steel had reason to know — indeed should have known — of the inappropriateness of the steel for Seegers’ use, prior to the sale.
The present facts simply do not parallel those of
Seegers.
Gehl had no personal relationship with the Birchlers such that Gehl might have been aware of the specific circumstances under which the product was being used. On the contrary, the case at hand deals with “an over-the-counter sale of a generic product for use by an unknown consumer,” id. at 802-03, 160 Ill.Dee. 793,
The well established and generally accepted law in Illinois is that manufacturers do not have a continuing duty to warn. Thus,
Seegers
is undoubtedly an exception. Whether it is the beginning of a new trend or merely an anomaly is unclear. In adjudicating state lаw claims, it is our role as a federal appellate court to decide the case as we believe the highest state court would.
L.S. Heath & Son, Inc. v. A T & T Information Systems, Inc.,
In light of the weight of case law refusing to recognize a continuing duty to warn, we do not believe that the Illinois Supreme Court would impose a continuing duty to warn in this case. The standard of reviеw we employ in reviewing denials of jury instructions is whether the jury was misled or its understanding of the issues seriously affected to the prejudice of the appellant.
Estate of Carey v. Hy-Temp Mfg. Inc.,
AFFIRM.