788 F.2d 1070 (5th Cir. 1986), 84-1460, Jackson v. Firestone Tire & Rubber Co.
|Citation:||788 F.2d 1070|
|Party Name:||Dorothy JACKSON, Individually and as Representative of the Estate of Oscar Jackson, Jr., Deceased, Plaintiff-Appellant, v. FIRESTONE TIRE & RUBBER COMPANY and Goodyear Tire & Rubber Company, et al., Defendants-Appellees.|
|Case Date:||April 30, 1986|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Tom Needham, Ford, Needham & Johnson, Dallas, Tex., for plaintiff-appellant.
Eugene W. Brees, II, David S. Kidder, Dallas, Tex., for Goodyear Tire & Rubber Co.
John L. Lancaster, III, Dallas, Tex., for Fruehauf Corp., et al.
J. Carlisle DeHay, Jr., Kevin J. Cook, Dallas, Tex., for General Tire & Rubber Co.
Patrick Zummo, James Edward Maloney, Baker & Botts, Houston, Tex., for Firestone Tire & Rubber Co.
John E. Agnew, Dallas, Tex., for interested party, Illinois Employers Mut. of Wausau.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, REAVLEY, and GARWOOD, Circuit Judges.
ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR REHEARING EN BANC
(Opinion January 2, 1986, 5th Cir.1986, 779 F.2d 1047)
GOLDBERG, Circuit Judge:
Upon consideration of appellees' petitions for rehearing we withdraw the original text of this opinion and substitute the following:
This is an appeal in a Texas diversity case take-nothing judgment in a survivorship and wrongful death action, predicated
on claims of negligence and strict liability. A jury found, by special verdicts, that the multi-piece truck wheel components in question were not defectively designed, and that no duty to warn had been breached by the manufacturers; the jury also determined the decedent to have been 100% contributorily negligent. Appellant, decedent's surviving common-law wife, challenges the judgment on grounds that certain proffered evidence was improperly excluded and that the court's charge to the jury was improper and incomplete. We reverse in part and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 14, 1979, Oscar Jackson, Jr., the original plaintiff below, was employed by Dal-Har Distributing Company of Dallas, Texas, a small, intrastate trucking company. On the day in question, one of Dal-Har's trucks had a flat that required changing. The usual "tireman" was absent, so Jackson filled in, as he often did. The usual procedure at Dal-Har was to remove the wheel and tire assembly from the truck, take a substitute wheel--ordinarily already assembled 1--or the wheel from the truck, mount a new tube and a tire on the wheel, inflate the tire, and balance the assembly. On the day in question, however, no substitute wheels were already assembled. Consequently, Jackson assembled his own wheel from a Firestone 5? rim base and a Goodyear LW side ring. 2 As is customary for truck tires, whether they be mounted on multi-piece or on single piece wheels, the tire was inflated inside a containing device known as a "tire cage," the purpose of which is to prevent injury in the event the wheel or the tire explodes when inflated to the high pressures customary for truck tires, typically up to 100 pounds per square inch. Jackson inflated the 10.00 X 20 tube-type tire he had mounted on the mismatched wheel assembly inside a tire cage. He then proceeded to take it to an adjacent area of the shop where the tire "bubble-balancing" machine was located.
Jackson requested assistance from his immediate supervisor, Clyde Phillips, in balancing the tire. Phillips was semi-retired, but had been an owner and founder of Dal-Har. At the time of the accident, Phillips, not Jackson, was tapping balancing weights onto the wheel rim; the wheel and tire were mounted horizontally on the balancing machine. Because balancing is a hands-on exercise, use of a tire cage would be ineffective or impractical, and there was none.
Jackson was standing three to five feet away from the tire assembly, watching Phillips. After having placed one weight successfully on the rim, Phillips was hammering a second weight on the opposite side of the rim when the wheel, without warning, exploded. The force of the explosion knocked Phillips' left hand (the hammer was in his right hand) into his head and knocked him to the floor some eight to ten feet distant. The side ring flew sideways, apparently hitting Jackson in the forehead and knocking him down some feet away. Phillips testified that the side ring,
presumably after hitting Jackson, went through the corrugated tin roof on the shop, some twelve to fourteen feet above the floor.
Oscar Jackson suffered massive head injuries from the accident. He underwent several surgeries, including an implantation of a metal plate in his forehead to replace the cranial bone tissue that had been shattered by the accident. Jackson survived, but suffered a severe loss of frontal lobe functions, resulting in his total incapacity to return to work, loss or impairment of intellectual mental functions, and considerable pain. He remained in the hospital for fourteen days, seven spent in intensive care. Some six months or so later, he began to suffer bouts of nausea and severe headache pain, which later were recognized to be and were treated as seizures. Jackson regained some mobility and could tend to his basic needs, talk, and walk, but he was not the same man. His attention span and behavior were childlike and he required almost constant supervision by his wife, Dorothy, the appellant here. 3
On June 26, 1980, Jackson filed a complaint against Firestone Tire & Rubber Company, the Goodyear Tire & Rubber Company, Fruehauf Corporation, and the General Tire & Rubber Company, alleging negligence and strict liability. 4 He sought $4 million in actual and compensatory damages, and $12 million in punitive damages. 5 On August 11, 1980, the Illinois Employers Insurance of Wausau intervened, seeking to assert its subrogation rights as workmen's compensation carrier for Dal-Har. See Tex.Rev.Civ.Stat.Ann. art. 8307, Sec. 6a.
Plaintiff's theory of liability was that Firestone and Goodyear, as manufacturers of the component wheel parts involved in the accident, were strictly liable for their allegedly defective design, manufacture, and marketing of multi-piece components generally; plaintiff argued that multi-piece wheels in general, and the component parts involved in this accident in particular, were unreasonably dangerous devices because of an alleged propensity to explode under foreseeable use, and because of a propensity for component parts to be mismatched with the same result. Jackson also alleged strict liability and negligence for an alleged failure by the manufacturers to instruct as to proper, safe use and for failure to warn of the hazards associated with multi-piece wheel assemblies.
Appellees (Goodyear, Firestone, Fruehauf, and General) denied these allegations and asserted the affirmative defenses of misuse, material alteration (by virtue of the mismatch), intervening cause, contributory negligence, assumption of risk, and unavoidable accident. In addition to the component mismatch, defendants alleged that Jackson had used a damaged and distorted side ring. In response to the strict liability claims, appellees asserted that Jackson, both as a "professional" and as an experienced
former truck driver and tireman, was subjectively aware of the dangers involved in using multi-piece wheels, specifically respecting mismatches or use of worn out or otherwise unserviceable parts; they asserted that, under Texas strict liability law, there is no duty to warn a user with such actual knowledge. There was also a suggestion that Jackson might have been drinking on the job. 6
On October 14, 1980, this case joined some thirteen other cases as a "tag along" transfer to multidistrict litigation, styled In re Multi-piece Rims Products Liability Litigation, MDL No. 362 in the Western District of Missouri. See 28 U.S.C. Sec. 1407 and Rule 9 of the Rules of Proceeding of the Judicial Panel on Multidistrict Litigation, 78 F.R.D. 561, 567-68 (1978). On October 8, 1982, following national pretrial discovery, the MDL Panel issued some preliminary rulings that, inter alia, struck three of the common claims in that MDL proceeding from the individual actions, including accusations that the defendants engaged in a willful conspiracy to prevent warning labels or other warning markings from being distributed with or being placed upon multi-piece wheels; that they intentionally withheld material information from a National Highway Traffic Safety Administration (NHTSA) investigation and made material misrepresentations to NHTSA; and that they created illegal political "slush funds" in return for executive influence of investigations into the multi-piece wheel.
On December 8, 1982, the case was remanded from MDL 362 and began its own pretrial discovery phase. The district court, Fish, J., treated the MDL exclusion of issues determination as the law of the case. On February 11, 1984, shortly before trial, Oscar Jackson died. Dorothy Jackson was substituted as plaintiff on March 21, and amended pleadings were filed. On March 23, the court issued its final scheduling order, specifically requiring the filing of all the parties' exhibit lists, proposed witness lists, and final designations for MDL documents; the court indicated that these lists would control the case, absent amendment by leave, to prevent injustice. On March 28, the court issued an order in limine, discussed in detail infra.
On April 2, 1984, this case went to trial. On April 9, following the conclusion of appellant's evidence, Fruehauf and General Tire moved for a directed verdict, which the court granted. It dismissed Jackson's action regarding these defendants with prejudice. See note 4 supra.
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