674 F.2d 826 (10th Cir. 1982), 80-2217, Rexrode v. American Laundry Press Co.

Docket Nº:80-2217.
Citation:674 F.2d 826
Party Name:Ok Nyo REXRODE, Plaintiff-Appellee, United States of America, Intervenor, v. AMERICAN LAUNDRY PRESS CO., and its successor corporation McGraw Edison Company, Defendant-Appellant.
Case Date:March 12, 1982
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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674 F.2d 826 (10th Cir. 1982)

Ok Nyo REXRODE, Plaintiff-Appellee,

United States of America, Intervenor,

v.

AMERICAN LAUNDRY PRESS CO., and its successor corporation

McGraw Edison Company, Defendant-Appellant.

No. 80-2217.

United States Court of Appeals, Tenth Circuit

March 12, 1982

Rehearing Denied April 22, 1982.

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Jerry K. Levy of Levy & Freeman, Topeka, Kan. (Steven Hornbaker of Harper & Hornbaker, Chartered, Junction City, Kan., with him on the brief), for plaintiff-appellee.

C. Willing Browne of Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo. (Robert E. Musgraves, Denver, Colo., and J. Steven Pigg and Donald Patterson of Fisher, Patterson, Sayler & Smith, Topeka, Kan., with him on the brief), for defendant-appellant.

Before SETH, Chief Judge, and McWILLIAMS and SEYMOUR, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a products liability case with jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332 (1976). A jury returned a verdict in favor of the plaintiff, Ok Nyo Rexrode, and against the defendant, American Laundry Press Company, and its successor corporation, McGraw Edison Company, in the amount of $750,000. McGraw Edison appeals the judgment entered against it. 1

The plaintiff, Mrs. Rexrode, was employed by the United States in a government-operated laundry facility located at Fort Riley, Kansas. She was injured on August 17, 1977, at the Fort Riley laundry when a laundry press manufactured by the defendant's predecessor closed on her hand while she was operating it. 2 The press was

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sold to the United States by the American Laundry Press Company on or about June 1, 1959, and was installed and continually used thereafter by the United States at its Fort Riley facility.

Mrs. Rexrode, who sustained severe injuries in the accident, brought the present action against the manufacturer of the press, and its successor company, claiming that the press was manufactured and sold in an unreasonably dangerous and defective condition. 3 On appeal, the defendant presents four issues for review. We shall discuss each.

I. Other Accidents

The machine used by Mrs. Rexrode was a Model 1057 PY-SP yoke press which had a main control mechanism assembly known as "A 178." The press is activated when the operator depresses two red buttons located at opposite ends of the press head. As a safety precaution, the red buttons are spaced so that two hands are required to engage the main control assembly mechanism.

Depressing both red buttons opens two pneumatic valves to permit air to fill a cylinder which in turn drives the press head downward. The operator must continuously engage both red buttons as the press head descends until the press reaches the "lock position," approximately four inches above the buck. Once the machine enters the lock mode, the press will close automatically and the operator may release the red buttons. 4 Activating either one of two green buttons, also located on the press head, will cause the head to ascend immediately.

Mrs. Rexrode alleged in this case that the press head descended on her hand even though she had not activated the two red operating buttons which normally must be depressed before the head will move toward the buck.

In order to ascertain whether other cases existed in which plaintiffs were injured when a press head descended mysteriously, the plaintiff propounded interrogatories to the defendant requesting information regarding past and present injury claims filed against the defendant involving laundry presses with "the same or similar main control mechanism assembly" as the press which was the subject of the suit. 5 The defendant initially responded to these interrogatories by stating that it was unaware of any suits or claims involving "the model press which is the subject matter of this law suit." Dissatisfied with that answer, plaintiff filed a motion to compel answers, which was granted on July 30, 1979. The defendant then filed a supplemental answer in which it stated that there were two such cases. A second supplemental answer listed an additional eleven cases in which persons had been injured by a laundry press with the same or similar main control mechanism

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assembly. A third supplemental answer listed one additional suit, bringing the total to fourteen lawsuits involving claims against the defendant which were possibly similar to plaintiff's claim.

On January 16, 1980, the plaintiff filed a notice to take the deposition and request for production of documents of George Schmidlin, an attorney employed by the defendant. A hearing for protective order in response to this notice was held on February 6, 1980. The court at that time ordered the defendant to produce all files of claims, exclusive of privileged communications, involving Ajax Press Machine Company presses which used a system of depressing two press head buttons simultaneously and an A-178 or A-220 6 main control mechanism assembly. Accordingly, the defendant was required to produce answers to interrogatories from the 1977 case of Miles v. American Laundry Machinery Industries, a case which was discovered in the files which Mr. Schmidlin brought to the February 12, 1980, deposition. Interrogatory 16 of the Miles case requested that the defendant list all prior suits or claims for damages filed against the defendant alleging injuries occasioned by similar products. The answer listed seventeen cases, only two of which had been identified previously in the defendant's supplemental answers to the plaintiff's interrogatories. 7

On the first day of trial, the defendant filed a motion in limine seeking the exclusion of evidence relating to other claims and lawsuits against the defendant. 8 The defendant argued that testimony regarding additional press accidents should not be admitted at all, unless and until the plaintiff demonstrated that the other accidents were sufficiently similar to the one at bar to be relevant. 9 The court ruled that no other press accident cases would be allowed into evidence unless proof of the circumstances involved could be established by direct testimony of a witness with first-hand knowledge of the case, and unless relevancy was established by evidence that the other accident involved substantially the same circumstance as the present case. 10

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At trial, plaintiff's counsel was able to reveal to the jury the existence of several other press injury cases filed against the defendant by asking defense expert witnesses who had investigated some of the accidents whether they had worked on any of the cases which he would list orally by the caption name. Frequently, the witness had investigated some of the cases named, in which event counsel pursued the matter in an effort to demonstrate that the "other accidents" were comparable to the one sustained by the plaintiff. Where the witness stated that he had nothing to do with the investigation of a particular claim, however, counsel did not pursue the matter in any detail. Defense counsel interposed certain objections during this cross-examination, some of which were sustained. The objections which were overruled did not relate to matters of great import, and, to us, this particular line of cross-examination played a minor role in the trial. As illustrative of this, counsel for plaintiff in his closing argument to the jury made no mention of any other accident.

On appeal, counsel for the defendant, who did not participate in the trial, attempts to make much of the cross-examination of defendant's expert witnesses regarding other accidents, and, indeed, urges the matter as his first and primary ground for reversal. Specifically, counsel asserts that the trial court erred by failing to require plaintiff's counsel to lay the necessary foundation outside the presence of the jury before he made reference to other claims made against the defendant.

We are not persuaded by the argument. While we agree that it might be preferable to hold a hearing on the relevancy of other accidents outside of the jury's presence, we believe this approach is by no means mandated in every instance. 11 We are aware...

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