734 F.2d 495 (10th Cir. 1984), 82-2176, Hurd v. American Hoist and Derrick Co.

Docket Nº:82-2176.
Citation:734 F.2d 495
Party Name:Russell Eugene HURD, Plaintiff-Appellee, v. AMERICAN HOIST AND DERRICK COMPANY, a Delaware Corporation, Defendant-Appellant.
Case Date:May 11, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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734 F.2d 495 (10th Cir. 1984)

Russell Eugene HURD, Plaintiff-Appellee,




No. 82-2176.

United States Court of Appeals, Tenth Circuit

May 11, 1984

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[Copyrighted Material Omitted]

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David P. Madden, Tulsa, Okl. (Jack Y. Goree of Whitten, Goree, Davies & Madden, Tulsa, Okl., was also on brief), for plaintiff-appellee.

S.M. Fallis, Jr., Tulsa, Okl. (Jerry R. Nichols of Nichols & Wolfe, Inc., Tulsa, Okl., was also on brief), for defendant-appellant.

Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal by American Hoist and Derrick Company (defendant) from an adverse judgment in a products liability suit removed to the district court on diversity grounds. Russell Hurd (plaintiff) brought this action and in a jury trial the district court directed a verdict in plaintiff's favor and denied a subsequent motion for a new trial and for a remittitur.


The facts as shown by plaintiff's evidence were as follows. On September 26, 1978, the plaintiff suffered head injuries in an accident while working at an oil well drilling site in Osage County, Oklahoma. Plaintiff's skull was crushed when the side plates of an oil field safety block separated and the pulley wheel between the side plates was catapulted into the top of his head. Plaintiff survived, but bone fragments had to be surgically removed from his skull. In a subsequent operation, an acrylic cranioplasty was performed to cover the hole in plaintiff's skull.

The block in question had been manufactured between the years 1947 and 1951 by the McKissick Company. Defendant acquired McKissick in 1959. Plaintiff sued defendant as a successor corporation on a theory of products liability.

At trial plaintiff called five witnesses and submitted numerous exhibits. After the close of plaintiff's evidence, defendant announced it would offer no evidence and rested. Defendant moved for a directed verdict, as the court's order reflects. I R.

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53. 1 In support of its motion, the defendant relied completely on its position that it could not be liable as a successor corporation. Following defendant's lead, plaintiff also moved for a directed verdict. After substantial research, the court granted plaintiff's motion as to liability and advised the parties that he would submit the issue of damages to the jury. The trial judge reasoned that he could have acted in no other way because defendant offered no evidence to challenge plaintiff's allegation of material defect. That being true, plaintiff's position as to defect was proven by default and by acquiesence of silence. 2 He submitted the damages issue to the jury, which returned a verdict for plaintiff of $80,000.00.

On appeal, defendant presents two issues. It contends that: (1) the trial court erred in directing a verdict for plaintiff because issues of fact existed regarding defendant's liability; and (2) the trial court erred in refusing to grant a remittitur because the damages were excessive, and not supported by the evidence.


Although the underlying cause of action is governed by the substantive law of Oklahoma in this diversity case, the sufficiency of the evidence for purposes of granting a directed verdict is governed by federal law. E.g., Peterson v. Hager, 724 F.2d 851, 853-54 (10th Cir.1984) (Opinion on Rehearing); Hidalgo Properties, Inc. v. Wachovia Mortgage Co., 617 F.2d 196, 198 (10th Cir.1980); Yazzie v. Sullivent, 561 F.2d 183, 188 (10th Cir.1977). In deciding whether to grant a directed verdict, the trial court must view the evidence most favorably to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Yazzie, supra, 561 F.2d at 188; see also Peterson, supra, 724 F.2d at 853. The court may not weigh the evidence or pass upon the witnesses' credibility, or substitute its judgment for that of the jury. Yazzie, supra, 561 F.2d at 188; 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2524, at 543-44 (1971).

Motions for a directed verdict and for judgment n.o.v. are considered under the same standard. E.g., Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1389 (10th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1982); Yazzie, supra, 561 F.2d at 188; 9 Wright & Miller, supra, Sec. 2524, at 543-44. Although we have often used differing phraseology to express this standard, 3 we believe that

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they all have essentially equivalent meaning, which is best summarized by Wright & Miller: "The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for the party." 9 Wright & Miller, supra, Sec. 2524, at 543 (footnote omitted).

Although it is an exceptional case when such a ruling is made in favor of the party with the burden of proof, United California Bank v. THC Financial Corp., 557 F.2d 1351, 1356 (9th Cir.1977), motions by that party may be granted. See, e.g., Smith Machinery Company, Inc. v. Jenkins, 654 F.2d 693 (10th Cir.1981) (affirming a directed verdict on the ground that defendant was in default on promissory note, and awarding plaintiff principal, interest, and attorney's fees); Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 897 (10th Cir.1980) (trial court erred in refusing to grant judgment n.o.v. against defendant); Continental Oil Co. v. Natrona Service, Inc., 588 F.2d 792, 799-800 (10th Cir.1978) (upholding grant of directed verdict and judgment n.o.v. for plaintiff in declaratory action); see also 9 Wright & Miller, supra, Sec. 2535, at 590-93.

When the party with the burden of proof moves for a directed verdict the evidence must be viewed from a different perspective. Rather than considering the evidence for its sufficiency to support a finding for the opposing party as is done when the party not having the burden of proof has made such a motion, the evidence is tested for its overwhelming effect. See United California Bank v. THC Financial Corp., supra, 557 F.2d at 1356; Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); 9 Wright & Miller, supra, Sec. 2535, at 592-93. The test is a strict one, and a directed verdict for the party having the burden of proof may be granted only where he has established his case by evidence that the jury would not be at liberty to disbelieve. Service Auto Supply Co. v. Harte & Co. Inc., 533 F.2d 23, 25 (1st Cir.1976).

In considering the propriety of granting a directed verdict, the court may not weigh the evidence or make credibility determinations. A directed verdict for the party bearing the burden of proof may be granted only if the evidence is such that without weighing the credibility of the witnesses the only reasonable conclusion is in his favor. Service Auto Supply Co. v. Harte & Co., Inc., supra, 533 F.2d at 25. The court "must take as true 'testimony concerning a simple fact capable of contradiction, not incredible, and standing uncontradicted, unimpeached and in no way discredited by cross examination ....' " Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 897 (10th Cir.1980) (quoting Chicago, Rock Island & Pacific Ry. v. Howell, 401 F.2d 752, 754 (10th Cir.1968)); see also Chesapeake & Ohio Railway Co. v. Martin, 283 U.S. 209, 216, 51 S.Ct. 453, 456, 75 L.Ed. 983 (1931).

With these strict rules in mind, we hold that the trial court correctly directed the verdict in plaintiff's favor. Initially we note that plaintiff's case was established largely on the testimony of Dr. Robert Block who had an impressive educational background and record of experience as a mechanical and metallurgical engineer. His acceptance as an expert in both fields was not objected to by defendant. IV R. 2-6.

Under Oklahoma law a plaintiff suing on a theory of manufacturer's product liability must prove three elements to prevail. As the Oklahoma Supreme Court has explained, a plaintiff must prove that: (1) the product was the cause of the injury; (2) a causally related defect existed in the product at the time it left the manufacturer's possession and control; and (3) the defect rendered the product unreasonably dangerous to the plaintiff or his property.

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Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okl.1974); see also Tigert v. Admiral Corp., 612 P.2d 1381, 1383 (Okl.App.1980). Unreasonably dangerous means " 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' " Kirkland, supra, 521 P.2d at 1362-63 (quoting Restatement (Second) of Torts Sec. 402A comment g).

Here the plaintiff's evidence established all three elements that must be proven under Kirkland. First, it showed that the product caused the injury. Second, the testimony of plaintiff's expert witness established that there was a design defect in the product at the time it left the manufacturer. 4 Third, the testimony of plaintiff's expert taken as a whole also demonstrated that the product was unreasonably dangerous under Oklahoma law. 5 Defendant offered no evidence to refute plaintiff's expert, nor did defendant's attorney discredit plaintiff's expert on cross-examination. IV R. 18-26. This testimony standing uncontradicted, unimpeached, and not discredited by cross-examination must be taken as true. 6 Cf. Stafos v. Missouri

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Pacific Railroad, 367 F.2d 314, 317 (10th Cir.1966) (although expert evidence may be contradicted by lay testimony, if "evidence--expert or non-expert--is all one way, there is no room for a contrary finding.").

Defendant argues that the "defenses of change of condition and the fact that a...

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