648 F.2d 330 (5th Cir. 1981), 80-7221, Newman v. A. E. Staley Mfg. Co.

Docket Nº:80-7221.
Citation:648 F.2d 330
Party Name:A. C. NEWMAN, Jr., Plaintiff-Appellee-Cross Appellant, v. A. E. STALEY MANUFACTURING COMPANY, a corporation, Defendant-Appellant-Cross Appellee.
Case Date:June 18, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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648 F.2d 330 (5th Cir. 1981)

A. C. NEWMAN, Jr., Plaintiff-Appellee-Cross Appellant,



Defendant-Appellant-Cross Appellee.

No. 80-7221.

Unit B

United States Court of Appeals, Fifth Circuit

June 18, 1981

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[Copyrighted Material Omitted]

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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

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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...

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