Allen v. Minnstar, Inc., s. 90-4004

• Decision Date: 01 November 1993
• Docket Number: Nos. 90-4004,90-4199,s. 90-4004
• Citation: 8 F.3d 1470
• Parties: , Prod.Liab.Rep. (CCH) P 13,678 Scott ALLEN, Plaintiff-Appellant, v. MINNSTAR, INC., doing business as Genmar Industries, Inc., doing business as Wellcraft Marine, and Outboard Marine Corporation, Defendants-Appellees, Genmar Industries, Inc., doing business as Wellcraft Marine, Defendant-Third-Party Plaintiff-Appellee, Mitchell Huffman and Melvin Huffman, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1470

8 F.3d 1470

27 Fed.R.Serv.3d 36, Prod.Liab.Rep. (CCH) P 13,678

Scott ALLEN, Plaintiff-Appellant, v. MINNSTAR, INC., doing business as Genmar Industries, Inc., doing business as Wellcraft Marine, and Outboard

Marine Corporation, Defendants-Appellees,

Genmar Industries, Inc., doing business as Wellcraft Marine,

Defendant-Third-Party Plaintiff-Appellee,

Mitchell Huffman and Melvin Huffman, Third-Party Defendants-Appellees.

Nos. 90-4004, 90-4199.

United States Court of Appeals,

Tenth Circuit.

Nov. 1, 1993.

Jackson Howard of Howard, Lewis & Petersen, Provo, UT (D. David Lambert and Leslie W. Slaugh of Howard, Lewis & Petersen, with him on the brief), for plaintiff-appellant.

Warren E. Platt of Snell & Wilmer, Phoenix, AZ (Eileen J. Moore of Snell & Wilmer, Phoenix, AZ, and Todd S. Winegar and Karra J. Porter of Christensen, Jensen & Powell, Salt Lake City, UT, with him on the brief), for defendant-appellee Outboard Marine Corp.

Stephen B. Nebeker of Ray, Quinney & Nebeker, Salt Lake City, UT (Anthony B. Quinn and Douglas H. Patton of Ray, Quinney

& Nebeker, with him on the brief), for defendant-appellee Wellcraft Marine.

Before LOGAN and HOLLOWAY, Circuit Judges, and BRETT, ^* District Judge.

HOLLOWAY, Circuit Judge.

Plaintiff/appellant Scott Allen appeals from a summary judgment in favor of defendants/appellees Minnstar, Inc., dba Genmar Industries, Inc., dba Wellcraft Marine (Wellcraft) and Outboard Marine Corporation (OMC) on Allen's strict product liability claim (No. 90-4004). The claim arises out of a boating accident in which Allen was struck and severely injured by the propeller on a 1978 Wellcraft boat powered by an OMC engine. Allen alleges that the engine was defectively designed because it was not equipped with a propeller guard to prevent injuries resulting from physical contact with the propeller.

In No. 90-4199, Allen appeals from an order of September 20, 1990, refusing to allow the filing in the district court of the deposition of one of Allen's expert witnesses, Bryan Chadwell. This order was entered after the grant of the summary judgment for OMC and Wellcraft on Allen's strict liability claim. This second appeal, No. 90-4199, was companioned with No. 90-4004 for argument by an order of this court on February 14, 1991. Both appeals will be treated by this opinion.

In No. 90-4004, Allen contends he presented sufficient evidence on his strict liability claim to raise triable issues of fact so that summary judgment was error; Allen maintains that although Utah law did not require him to do so, he nevertheless presented a genuine issue of material fact as to whether there was an alternative safer design at the time the stern drive was manufactured; finally Allen argues that enhanced injury principles do not apply to the instant case.

I

On August 30, 1985, Allen went for a midnight boat ride on the Utah portion of Lake Powell with some friends. The boat, a planing pleasure craft, was a 1978 Wellcraft Marine, Model 165 Airslot I/O, powered by an OMC 140 horsepower inboard/outboard engine. Allen was sitting in the front of the boat when, in order to avoid an obstacle in the water, the driver made a sharp turn, causing Allen to fall overboard. The boat ran over Allen who was struck and severely injured by the boat's unguarded propeller. The propeller lacerated his left leg to the bone and the leg had to be amputated above the knee. Other severe injuries were also suffered by Allen.

On December 1, 1986, Allen brought suit against defendants on a strict product liability theory, alleging inter alia that the boat was defectively designed and unreasonably dangerous because it was not equipped with a propeller guard. In July 1989, OMC moved for summary judgment, arguing that Allen had failed to produce evidence sufficient to support an enhanced injury claim, including evidence that a safer and commercially feasible engine design was available when the boat was manufactured in 1977. Wellcraft joined the motion, requesting partial summary judgment "to the extent plaintiff has attempted to charge it with the same [propeller] defect." I R.Doc. 181 at 2. In their joint motion, defendants argued that the enhanced injury doctrine necessarily applied because the alleged product defect, the lack of a propeller guard, did not cause the accident itself but enhanced the resulting injuries to Allen.

The district court denied defendants' motion but requested supplemental briefing on the enhanced injury issue. After such briefing, the court reconsidered and granted the motion in a Supplemental Ruling dated August 17, 1989. The court's order provided for subsequent issuance of a more detailed memorandum.

Four days after the court's Supplemental Ruling, Allen filed a motion for relief pursuant to Federal Rules of Civil Procedure 54(b), 59(a)(2) and 60(b), relying once again on the contention that the enhanced injury doctrine did not apply or, if it did, triable issues of fact remained as to the availability of a safer and commercially feasible design. In a Supplemental Ruling and Memorandum Decision dated November 20, 1989, the district court denied Allen's motions, but stated: "This court agrees that this is not an enhanced injury case, but a design defect case." Id. at 4. In support of its denial of the motions, the court reasoned that:

Without evidence of technically feasible alternative designs at the time the product was manufactured, a jury trial on the design defect issue is inappropriate. This court is unwilling to set a new precedent in products liability law by imposing liability on manufacturers whose products conform to the safety standards of the industry, but do not incorporate every possible safety feature regardless of cost or effect on performance of the manufacturer's product. For those reasons this court granted summary judgment in favor of defendant OMC.

Id. at 10.

Allen filed a timely notice of appeal on December 21, 1989. On January 5, 1990, the district judge filed a Supplemental Order on Motion for Summary Judgment in which it reaffirmed its granting of the motion as to both OMC and Wellcraft "on claims related to prop guarding...." I R.Doc. 220 at 2. ¹ On January 31, 1990, the district court determined pursuant to Fed.R.Civ.P. 54(b) that its supplemental summary judgment ruling in favor of both OMC and Wellcraft was "final and appealable." Id. at 2.

II

We first treat an important issue concerning the proper scope of the record before us on this appeal. The issue is the extent to which a deposition of an expert of the plaintiff, Bryan Chadwell, is properly before us.

In April 1990 Allen filed a motion in the district court to permit a copy of the deposition of Chadwell to be filed in lieu of the original and become part of the record on appeal. Both Allen and defendants cited portions of the deposition in their summary judgment briefs and some pages of it were attached, but neither the complete original deposition nor a copy of it was ever filed with the district court. The district judge said at the August 17, 1989, summary judgment hearing that he would "receive the Bryan Chadwell deposition...." Transcript of hearing, Brief of Appellant (No. 90-4199) at 13. In its Ruling and Order filed November 13, 1990, the court denied Allen's motion to permit filing of the deposition:

Allen suggests that Rule 10(e) of the Federal Rules of Civil [sic] Procedure provides a basis for his request to file the Chadwell deposition. However, that rule authorizes modification of the record only to the extent necessary to "truly disclose[ ] what occurred in the district court." Although this court authorized the filing of the Chadwell deposition during the course of the proceedings before it, counsel never filed the deposition, hence it was never considered by this court. To now make it a part of the record would mislead the court of appeals.

Brief of Appellant (No. 90-4199), App. "D" at 2. ² As noted, Allen separately appeals the district court's denial of his motion to supplement the record (No. 90-4199).

Defendants question our jurisdiction in No. 90-4199, arguing that the district court's denial of Allen's motion to supplement the record was not a final decision within the meaning of 28 U.S.C. § 1291, citing Lamp v. Andrus, 657 F.2d 1167 (10th Cir.1981), inter alia. We believe that the court's ruling, albeit post-judgment, did finally decide this separate matter in controversy and is therefore subject to review by this court pursuant to § 1291. See 9 J. Lucas, J. Moore & J. Ward, Moore's Federal Practice p 110.14 at 184-85 (2d ed. 1993) (post-judgment orders appealable if final and otherwise unreviewable); Delaney's Inc., v. Illinois Union Ins. Co., 894 F.2d 1300, 1304-05 (11th Cir.1990) (ruling on motion for clarification of judgment is final decision appealable under § 1291).

As to the merits of Allen's appeal in No. 90-4199, we conclude that the district court did not err in refusing to permit filing of the complete Chadwell deposition which was not filed at the time of the ruling on defendants' motion for summary judgment:

Rule 10(e) is not designed to allow a district court "to add to the record on appeal matters that did not occur there in the course of proceedings leading to the judgment under review." [Citations.] In other words, ... [the district court] is not authorized under Rule 10(e) to "augment the record on appeal with deposition transcripts that were not on the record before it at the time its final decision was rendered." [Citation.] This is so because "the only proper function of a court of appeals is to review the decision below on the basis of the record that was made before the district court." [Citations.] To the extent there be an "inherent equitable power" to supplement the record exceeding the power provided in Rule 10(e), such power is to be exercised not by [the district court], but by the Court of Appeals. [Citation.]

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