Ponder v. Warren Tool Corp.
| Decision Date | 10 December 1987 |
| Docket Number | No. 83-2466,83-2466 |
| Citation | 834 F.2d 1553 |
| Parties | , 24 Fed. R. Evid. Serv. 601, Prod.Liab.Rep.(CCH)P 11,644 Bobby M. PONDER, Plaintiff-Appellant, v. WARREN TOOL CORPORATION and Patch Rubber Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ronald N. Gott, Wichita, Kan. (Paul S. McCausland and Kenneth M. Clark, Gott, Young & Bogle, P.A., Wichita, Kan., were also on briefs), for plaintiff-appellant.
Richard D. Ewy, Wichita, Kan. (Jerry G. Elliott, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., was also on briefs), for defendants-appellees.
Before HOLLOWAY, Chief Judge, BARRETT, Circuit Judge, and GREENE, District Judge *.
This is a diversity products liability action asserting negligence and strict liability theories to recover for injuries plaintiff Ponder suffered as a result of the explosion of a tire he was trying to mount using a bead seater manufactured by defendant Patch Rubber Company and marketed by defendant Warren Tool Company. Ponder appeals from a judgment on a jury verdict in favor of Patch. We reverse.
On December 17, 1979, the date of the accident in question, Ponder owned and operated an automobile body shop and also worked on cars at his home, in Wichita, Kansas. As part of his business, he frequently had to mount tires. An important part of the mounting process is the proper seating of the beads of the tire onto the inside of the wheel rim flanges to form an airtight seal so the tire will inflate properly.
To assist in seating radial tires Ponder purchased a Ken-Tool Model 31435 Bead Seater in 1975 or 1976. The bead seater was manufactured and packaged by Patch and marketed by Warren Tool. The Ken-Tool bead seater consisted of a looped tube of rubber which fit between the bead of the tire and the inside flange of the rim. As the tire inflated, the air pressure in the tire forced the bead seater up and over the rim, leaving the tire bead properly seated on the rim. To slide on and off the rim properly, the bead seater had to be properly lubricated with a lubricant recommended by the tire manufacturer. The bead seater was advertised as suitable for use on thirteen, fourteen and fifteen inch wheels.
Although Ponder had originally intended to purchase a bead seater which went around the outside of the tread of the tire, a Wichita automotive distributor recommended the Ken-Tool bead seater as the most effective in seating radial tires. On the distributor's advice Ponder purchased the Ken-Tool bead seater. Ponder also bought a water-based lubricant known as Ru-Glyde, which he used with the bead seater at all times including the date of the accident.
Ponder testified at trial that he did not recall whether the bead seater came with any instructions. His testimony on whether he would have read any instructions accompanying the product is conflicting. Before the accident, Ponder used the bead seater forty to fifty times without any problems. He also used a tire machine connected to an air compressor to help him mount and demount tires. The machine was equipped with a locking cone to secure wheels on the machine during the mounting and demounting process, and Ponder inflated tires by using an air hose and chuck.
On the day of the accident, Ponder and his cousin, Louis Hickman, removed two wheels from Ponder's pickup truck at his body shop and took them to Ponder's home so Ponder could replace the tires with two used snow tires he had bought. After demounting one of the old tires from its rim, which was secured to the tire machine by the locking cone, Ponder lubricated the tire beads with Ru-Glyde and worked the tire onto the rim. He removed the locking cone, turned the wheel over, replaced the locking cone and put the bead seater on. II R. 158-160.
Ponder attempted three times to seat the new tire. On the first attempt, he lubricated the rim flange and the tire bead by pouring Ru-Glyde "over the bead seater." When the bead failed to seal, however, he relubricated the flange and the bead and tried again. He positioned the tire so the bead seater was on the bottom side of the wheel, opposite the side with the valve stem, removed the locking cone, and put air in the tire. II R. 161-64. When Ponder inflated the tire, however, the bead seater refused to slip out from around the wheel. On the third try, the tire exploded. II R. 165-168, 170. The explosion propelled the tire upward and blew Ponder back several feet, virtually severing his hand from his arm.
Ponder brought this suit against Warren Tool and later joined Patch. In the pretrial conference order, Ponder stated he was making no specific claims against Warren Tool. Instead, he reserved his claim against that defendant in the event Patch asserted Warren Tool's comparative negligence as a defense. Against Patch, Ponder alleged defects in the design and manufacture of the bead seater, failure to warn, and negligence. Patch denied that the bead seater was defective and contended that Ponder misused the bead seater.
After a six day trial, the jury returned a general verdict for Patch, and the court granted a motion by Warren Tool for a directed verdict. Ponder filed a motion for a new trial in which he raised the arguments he now makes on appeal. The trial judge overruled the motion, and this timely appeal followed.
On appeal, Ponder argues that (1) the trial court erred in limiting testimony by Ponder's two expert witnesses concerning the cause of the accident, alternative safe designs, and latent dangers in the bead seater; (2) the court erred in refusing to admit evidence of other similar accidents; and (3) the trial court erred in refusing to admit testimony concerning Ponder's reputation for truthfulness and honesty. We deal with these contentions in turn.
Ponder's first claim of error relates to expert testimony by two witnesses: Lyle Brumbaugh, a tire-changer, assistant manager and sales manager for a tire shop; and Neal Robinson, a materials and failure analysis engineer. Ponder says that the trial court improperly limited testimony by these witnesses on three subjects: awareness of hazards associated with use of the bead seater; the cause of the accident; and alternative products available to mount tires.
1. The Cause of the Accident and Users' Awareness of Hazards
Ponder contends that the trial court erroneously limited testimony by his expert witness, Robinson. Ponder points to two instances where the judge would not allow Robinson to testify, first about the cause of the accident, and second about the hazards of using a bead seater.
On the first point, Robinson testified that the bead seater tended to become trapped. This characteristic, he suggested could cause an employee to inadvertently overinflate a tire:
My opinion as to ... the cause of the accident, was that ... at the time of the accident the bead seater became trapped and did not disengage at the pressures that previous experience had indicated, and that, therefore, under these circumstances, it's possible to inflate the tire to higher than normal pressures without realizing it.
III R. 385. Patch immediately objected to Robinson's statement as "totally speculative, conjectural and ... assuming things not in evidence." III R. 385. The trial judge sustained the objection and instructed the jury to disregard the answer because "[i]t's not taking into account the evidence in this case." III R. 385.
The trial court's ruling--that Robinson's testimony was inadmissible because it took into account evidence not in the case--was in error and in conflict with Fed.R.Evid. 703. The Rule states that "[t]he facts or data upon which an expert bases an opinion or inference, ... [i]f of a type reasonably relied upon by experts in the particular field, ... need not be admissible in evidence." Fed.R.Evid. 703. Indeed, there are three ways an expert can learn facts on which he bases his opinion:
First, the expert may gather information by means of firsthand observation. Second, the expert may base his or her testimony upon facts presented at trial, either in the form of hypothetical questions propounded by counsel or evidence before the court. Third, the expert may rely on facts outside the record and not personally observed, but of the kind that experts in his or her field reasonably rely in forming opinions.
Ramsey v. Culpepper, 738 F.2d 1092, 1101 (10th Cir.1984) (emphasis omitted). Accord Mannino v. International Mfg. Co., 650 F.2d 846, 852 (6th Cir.1981).
In the present case, Robinson's testimony was based both on first hand observation, and upon information "of a type reasonably relied upon by the experts in the particular field." Fed.R.Evid. 703. At the beginning of his testimony, Robinson stated that he examined the wheel rim, the tire, and the bead seater "in order to determine how the accident occurred and the causes." III R. 343. He also examined the physical evidence under an optical microscope, and took x-rays of the tire's beads. In addition, he was informed of the circumstances of the accident and of the result of the accident. On the basis of his professional credentials, the investigation he conducted, and statements to him about the circumstances of the accident, Robinson was clearly qualified to express his opinion on the cause of the accident, and the trial judge did not find otherwise.
Further, Robinson's testimony was admissible even though it expressed his opinion on the cause of the accident. "Testimony in the form of an opinion ... otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704; Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir.1987). See also Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255, 260 (6th Cir.1961) (...
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