594 F.2d 1051 (5th Cir. 1979), 77-1168, Harless v. Boyle-Midway Division, American Home Products

Docket Nº:77-1168.
Citation:594 F.2d 1051
Party Name:Marilyn HARLESS, Plaintiff-Appellant, v. BOYLE-MIDWAY DIVISION, AMERICAN HOME PRODUCTS, a corporation, Defendant- Appellee. Marilyn Harless POWELL, as Administratrix of the Estate of Lawrence Michael Harless, Deceased, Plaintiff-Appellant, v. BOYLE-MIDWAY DIVISION, AMERICAN HOME PRODUCTS, a corporation, Defendant- Appellee.
Case Date:May 11, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1051

594 F.2d 1051 (5th Cir. 1979)

Marilyn HARLESS, Plaintiff-Appellant,



corporation, Defendant- Appellee.

Marilyn Harless POWELL, as Administratrix of the Estate of

Lawrence Michael Harless, Deceased, Plaintiff-Appellant,



corporation, Defendant- Appellee.

No. 77-1168.

United States Court of Appeals, Fifth Circuit

May 11, 1979

Rehearing Denied June 13, 1979.

Page 1052

[Copyrighted Material Omitted]

Page 1053

Jackson G. Beatty, Tallahassee, Fla., for plaintiff-appellant.

Goble D. Dean, Orlando, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

GEWIN, Circuit Judge:

This appeal arose from a wrongful death action in which appellant alleged simple and culpable negligence on the part of appellee in failing to warn of the fatal consequences of the inhalation of its product Pam, although it had been aware of the consequences for a number of years. All parties concede that the death of 14 year old Michael Harless occurred as a result of his intentional inhalation of Pam, a household product manufactured and distributed by appellee.

Originally plaintiff-appellant Marilyn Harless, mother of the deceased, brought two wrongful death actions, suing both individually and as administratrix of decedent's estate. The cases were consolidated and removed to the district court on the basis of diversity jurisdiction.

The jury returned a general verdict for the defendant-appellee. Appellant cites numerous grounds in support of her appeal. We find merit in several of her contentions and accordingly reverse.

On June 26, 1972 the deceased and his friend were watching cartoons on TV and they decided to inhale Pam, an activity to which they had been introduced only two days earlier by some friends from out of town. Pam was inhaled by taking the core of a roll of toilet paper and stuffing tissue paper into the middle of the core. Then with one end of the core stuck in the mouth Pam was sprayed into the other end and the child would take a deep breath inhaling the substance into the lungs, producing a tingling sensation.

Michael Harless's death was caused by his inhalation of the freon propellant in Pam. 1 Pam is a household product manufactured and distributed by appellee with the intended purpose of preventing food from sticking to cooking surfaces.

The only relevant warning on the label on the can of Pam used by deceased was as follows:

Avoid direct inhalation of concentrated vapors. Keep out of reach of children.

There was uncontroverted evidence presented at trial that appellee had notice of 45 deaths allegedly occurring from the misuse of Pam during the four years preceding Michael's death. Vol. VI at 28-39.

In March 1972 appellee sent to the printer a new label with a new warning:

CAUTION: use only as directed, intentional misuse by deliberately concentrating and inhaling the contents can be fatal . . .

Appellee made no other attempt to warn the public of the danger. The cans with the old labels were not recalled, and the can used by the deceased bore a label with the old warning.

The first issue considered by this court is whether the trial court erred in excluding appellant's proffered rebuttal evidence showing that no deaths had occurred for two years under appellee's new label warning that inhalation could be fatal. Appellant sought to introduce a portion of a deposition of Mr. Rubin, appellee's production and research coordinator and the inventor of Pam. Mr. Rubin, who testified that he was the most knowledgable person in the appellee company on the history of Pam and the "sniffing syndrome", stated that he had no knowledge of any deaths

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arising under the new label. This evidence was offered to rebut the testimony of two expert witnesses introduced by appellee. The testimony of the experts was, in essence, that it did not matter what type of warnings were placed on the label by the manufacturer, teenagers were not going to read them or obey them if they did read them. Also they testified that labels warning of possible death may cause greater misuse of the product.

The court below excluded the proffered rebuttal evidence because it felt that it might be "misleading." Vol. VIII, p. 44. Appellee argues that it is misleading in that Mr. Rubin further stated in his deposition that he might not necessarily be the only one in the company with knowledge about any deaths that might have arisen from misuse of the product under the new label. He stated that the legal department might be more informed than he about any such alleged deaths.

To prevent the proffered evidence from being misleading, it would have been simple for appellee to introduce the remaining portion of Mr. Rubin's statement, to put it into proper context. Furthermore, if the legal department was aware of any alleged deaths under the new warning, such evidence could have been admitted as surrebuttal.

The testimony of the experts related directly to the issue of the adequacy of the label and the legal or proximate cause of death. The proffered evidence arguably negated the evidence presented in appellee's case-in-chief that teenagers do not read or obey labels and that a label warning of possible fatal consequences might encourage the product's misuse. We believe that the proffered evidence should have been admitted as proper rebuttal testimony under Florida law going directly to new matters brought out by evidence of defendant-appellee. Driscoll v. Morris, 114 So.2d 314 (Fla.3rd Dist.Ct.App.1959). Accordingly, we find that the court erred in excluding this proffered testimony.

One of the most perplexing issues raised by appellant is whether the court erred in its instructions to the jury to consider one of the defenses raised by appellee; whether Michael Harless was "negligent by failing to read an adequate label."

It is well settled that in determining the adequacy of the judge's instructions, one must view the instructions as a whole. United States v. Green, 433 F.2d 946 (5th Cir. 1970). In the instant case this is particularly important since the applicable law is governed by the principles of comparative negligence. The underlying legal theories provide taxing mental exercises for even those well versed in the law. For the average juror not so familiar with Prosser and other renowned experts in the area of the law of negligence, the issues presented must resemble a never-ending maze.

Judge Stafford made a valiant effort to lead the jurors through this maze step by step. A review of the route taken unfortunately reveals that he was unsuccessful in his commendable attempt.

The first issue presented for the determination of the jury was whether appellee "was negligent in failing to adequately warn of the dangers of its product's use or misuse which were known or foreseeable to the defendant" and "whether Pam was an inherently dangerous commodity." Vol. X at 4. In determining whether the warning on the label was adequate the jury was correctly instructed to consider two characteristics, among others. First, the label must be of such form that it could "reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use." Second, "the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person." Vol. X at 5-6.

The judge then instructed the jury that if the great weight of the evidence did...

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