Newman v. A. E. Staley Mfg. Co.

Decision Date18 June 1981
Docket NumberNo. 80-7221,80-7221
Citation648 F.2d 330
PartiesA. C. NEWMAN, Jr., Plaintiff-Appellee-Cross Appellant, v. A. E. STALEY MANUFACTURING COMPANY, a corporation, Defendant-Appellant-Cross Appellee. . Unit B
CourtU.S. Court of Appeals — Fifth Circuit

Hobbs, Copeland, Franco & Screws, Euel A. Screws, Jr., Montgomery, Ala., for defendant-appellant-cross appellee.

Walker, Hill, Adams, Umbach & Herndon, Hoyt W. Hill, Opelika, Ala., for plaintiff-appellee-cross appellant.

Appeal from the United States District Court for the Middle District of Alabama.

Before GODBOLD, Chief Judge, and FRANK M. JOHNSON, Jr., and ANDERSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Plaintiff Newman filed suit in Alabama circuit court against defendant Cameron (a feed commodities broker), defendant Staley Manufacturing Company (a manufacturer of cattle feed), and other defendants who were dismissed from the suit before trial. Plaintiff alleged that defendants produced, brokered, and sold cattle feed that, when fed to plaintiff's cattle, caused death to a great number of the cattle, caused illness among the herd, caused interruption of plaintiff's feeding and maintenance program, and otherwise adversely and injuriously affected plaintiff's cattle. Alleging diversity jurisdiction defendants removed the case to federal court. Following jury verdicts for plaintiff Newman and defendant Cameron, defendant Staley Manufacturing Company appeals.

Staley Manufacturing Company (Staley) urges five grounds for reversal: first, that the jury verdict is not supported by sufficient evidence that the feed produced by Staley proximately caused the injuries suffered by plaintiff; second, that the district court abused its discretion and thereby denied Staley due process by refusing to allow it to call a witness who was not on defendants' pretrial list of witnesses; third, that plaintiff Newman's counsel engaged in prejudicial conduct warranting a new trial; fourth, that the district court abused its discretion and thus unduly burdened Staley's right to a fair jury trial by making prejudicial remarks from the bench; and, last, that the damage award was excessive as not being supported by the evidence. Newman cross-appeals, complaining that the district court erred in failing to award him the cost of copying depositions.

We find no merit to the contention that the evidence did not support the jury verdict that the cattle feed proximately caused the injuries suffered by plaintiff Newman. Staley argues that even though Newman urged as a legal theory the existence of a toxic substance in the feed, he did not prove that the feed contained a toxic substance. But under Alabama law Newman was not required to prove the existence of a specific defect. Rather, the existence of a defect in a product may be inferred from the damage caused when the product is put to its intended use. See, e. g., Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976); Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976). Without belaboring the point we find that Newman presented such evidence. Since the state of the proof is such that reasonable and impartial minds could reach the conclusion expressed in the verdict, see, e. g., Blount Brothers v. Reliance Insurance Co., 370 F.2d 733 (5th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1689, 18 L.Ed.2d 627 (1967), we will not disturb the verdict upon the jury's credibility determinations.

We next turn to the contention that the district court erred by refusing to allow Staley to call a witness who had not been named in defendants' pretrial list of witnesses. Staley contends that until trial Newman based his damages only on the death and illness to his cattle allegedly caused by the feed. At trial, however, Newman testified that his damages were partially caused by his inability to secure substitute feed for his cattle, resulting in the malnutrition or starvation of his cattle. In presenting its case, Staley sought to call as a witness a Mr. Fuqua to testify that Newman could have easily secured feed for his cattle. This witness was not named in defendants' pretrial list of witnesses as required by the pretrial order. Newman's counsel objected to Mr. Fuqua being allowed to testify, saying that Newman testified in his deposition taken almost a year before trial that feed was in short supply and that he did not have available feed and thus defendants should have anticipated the need to meet Newman's trial testimony. Counsel for Staley stated that he did not recall Newman testifying in his deposition that his cattle were starving because he could not secure feed for them. Defense counsel further asserted that "(t)his is the first time to my knowledge that Dr. Newman has maintained anywhere in this case that he couldn't get feed to feed his cows." Expressly relying on the representation of plaintiff Newman's counsel and the factor that counsel for Staley could ascertain the accuracy of this representation, 1 the district court refused to allow the witness to testify.

After presenting several more witnesses, defendant Staley rested. Plaintiff presented two witnesses in rebuttal, and the jury was dismissed for the night. Defendant Staley then asked the court to reconsider its decision to disallow Mr. Fuqua's testimony on the ground that plaintiff's counsel asked one of Staley's witnesses whether plaintiff Newman had told the witness that he did not have any feed for his cattle. Counsel for Staley did not at that time urge that the representation made earlier by Newman's counsel was inaccurate. The district court refused to reconsider its earlier decision.

The next day plaintiff completed his rebuttal, defendants presented their surrebuttal, and both sides presented closing arguments. Defendant Staley did not again urge reconsideration of the decision not to allow Mr. Fuqua to testify as a "rebuttal" witness. 2

The decision to modify or enforce a pretrial order is discretionary with the trial court and will not be disturbed on appeal absent an abuse of discretion. E. g., Davis v. Duplantis, 448 F.2d 918 (5th Cir. 1971); Wright Rootbeer Co. of New Orleans v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). Failure of a district court to allow defendant to present a witness who was not named in a required witness list to testify contrary to the plaintiff's evidence is not an abuse of discretion if the defendant was on notice that the plaintiff would present the evidence at issue. Keyes v. Lauga, 635 F.2d 330, 335 (5th Cir. 1981). Thus, if plaintiff Newman testified in his deposition that his cattle were suffering because he could not secure feed from other sources, defendants should have been prepared to meet this evidence. In fact, in his deposition Newman did not testify that his cattle were suffering from his inability to secure substitute feed, and his counsel's representation to the court, while in apparent good faith, was erroneous. 3 If the misrepresentation had been called to the attention of the district court and the district court had adhered to its position, defendant Staley would be in a much better position to argue that the court abused its discretion. But even though defense counsel had an overnight recess during which he could ascertain that plaintiff's counsel was in error, defense counsel did not bring this error to the attention of the court. On appeal counsel for Staley does not attempt to explain why he did not inform the court of the error; in light of the district judge's instruction that he was relying on counsel's ability to check the record, we can only assume that defendant Staley abandoned the argument. Viewed in this light, we do not think that the district court abused its discretion is disallowing Mr. Fuqua's testimony.

As a third ground of error, defendant Staley offers the argument that plaintiff's counsel made several improper remarks calculated to inflame and prejudice the jury. To justify a reversal based on improper comments of counsel, the conduct of counsel must be "such as to impair gravely the calm and dispassionate consideration of the case by the jury " Spach v. Monarch Insurance Co., 309 F.2d 949, 953 (5th Cir. 1962). Applying this legal principle, only one of counsel's remarks warrants discussion; the other comments, taken separately or cumulatively, clearly do not justify a reversal.

In plaintiff's opening statement, counsel told the jury that plaintiff Newman would testify that one of Staley's employees told Newman that the feed was the cause of the problems. In fact, Newman did not testify about this alleged admission. If no other evidence had been offered supporting the opening statement of plaintiff's counsel, a new trial would be necessary because of the obvious substantial prejudice to defendant. Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 284-85 (5th Cir. 1975) (a false "admission," injected into jury argument without any proper basis whatever, is grossly improper and clearly prejudicial). But evidence concerning the admission was placed before the jury by counsel for Staley when he introduced into evidence the deposition of plaintiff Newman. In his deposition, Newman explicitly testified about the alleged admission. In light of the jury's access to Newman's deposition testimony, the statement made by plaintiff's counsel in opening argument does not require reversal.

We now address Staley's complaint that the district court made prejudicial remarks from the bench and in doing so unduly burdened Staley's right to a fair trial. While remarks made by a district judge within the hearing of the jury are often necessary, the judge should take care not to give the impression that he or she prefers one litigant over another. A district judge should always bear in mind that "(t)he influence of the trial judge on the jury 'is necessarily and properly of great weight' and 'his lightest word or intimation is received with deference, and may prove controlling.' "...

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