Cowens v. Siemens-Elema AB

• Decision Date: 26 January 1988
• Docket Number: No. 87-1347,SIEMENS-ELEMA,87-1347
• Citation: 837 F.2d 817
• Parties: 5 UCC Rep.Serv.2d 1341, 24 Fed. R. Evid. Serv. 583 Isaac COWENS, Appellant, Sallie Gonzales v.AB and Elema Schonander, Inc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 817

837 F.2d 817

5 UCC Rep.Serv.2d 1341, 24 Fed. R. Evid. Serv. 583

Isaac COWENS, Appellant Sallie Gonzales v. SIEMENS-ELEMA AB and Elema Schonander, Inc., Appellees.

No. 87-1347.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1987.

Decided Jan. 26, 1988.

Sharon A. Cooney, Kansas City, Mo., for appellants.

John M. Kilroy, Jr., Kansas City, Mo., for appellees.

Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge and WOLLMAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Isaac Cowens appeals from a final judgment entered by the district court ¹ upon a jury verdict in his products liability action. Cowens instituted this proceeding against the defendants, Siemens-Elema AB, a Swedish corporation (Siemens), and Elema Schonander, Inc., an Illinois corporation (Elema Schonander), after he suffered an eye injury which he alleged resulted from the defective design of an electronic lung ventilator manufactured by Siemens and distributed by Elema Schonander. The jury found in favor of the defendants on both Cowens' claim of product design defect and his claim of product warning defect. For reversal, Cowens maintains that the district court erred by (1) excluding certain empirical testimony of James K. Blundell, an expert witness; (2) excluding certain testimony of Joel Highstrom, a ventilator service technician; (3) submitting a jury instruction defining the term "unreasonably dangerous"; (4) dismissing Cowens' breach of warranty claim; (5) making prejudicial remarks from the bench; (6) failing to exclude evidence of Cowens' workers' compensation settlement; and (7) refusing to permit Cowens to argue or to instruct the jury that the appellees' failure to produce an available witness, the head of the production department at Siemens, raised a presumption that this witness's testimony would have been adverse to them. For reasons to be stated, we affirm.

This appeal is an outgrowth of the following facts. From 1978 through 1984, Cowens was employed as a respiratory equipment technician at St. Luke's Hospital in Kansas City, Missouri. In order to mechanically assist patient breathing, St. Luke's utilized a number of electronic lung ventilators manufactured and distributed by the appellees.

On December 29, 1983, the date of the accident which provides the basis of this suit, Cowens was present at St. Luke's when a gauge on a Siemens Serro Ventilator Model 900B indicated that a wire mesh screen ² through which air passes to and from the patient, had possibly become blocked or contaminated. In response, a respiratory therapist removed a part of the ventilator known as the flow transducer, in which the screen was contained, and attempted to take out the screen. When he was unable to remove the screen, the therapist gave the transducer to Cowens' supervisor, who was also unsuccessful. Cowens' supervisor then requested that Cowens hold the transducer while the supervisor attempted to remove the screen with a tool described as "a pair of bull nose pliers." The pliers slipped out of the mechanism and hit Cowens in his right eye, causing extensive damage; Cowens remains legally blind in the eye.

Cowens subsequently commenced this action, alleging that the ventilator was manufactured and designed in a defective manner, causing the screen to become stuck and creating an unreasonable risk of danger. Specifically, the first two counts of Cowens' amended complaint sought recovery on the theory of strict liability because of the alleged defect and the appellees' failure to warn. In addition, Count III alleged that the appellees had breached an implied warranty of fitness for purpose because of the danger presented to purchasers and users, and Count IV alleged that the appellees' failure to use ordinary care constituted negligence. Cowens sought to recover medical expenses, lost wages, and future earnings lost as a result of emotional problems which he allegedly developed in response to the accident, and which eventually led to his discharge from employment. The district court dismissed Cowens' breach of warranty claim after concluding that the applicable Missouri statute precluded a claim for breach of warranty brought by an employee of a purchaser because the employee was not in privity with the seller. As indicated, the jury returned a verdict in favor of the appellees on the remaining claims. Cowens' motion for a new trial was denied and this appeal followed.

Cowens first maintains that the district court erred in excluding certain empirical testimony of an expert witness, Dr. James K. Blundell. The record discloses that Blundell is a doctor of mechanical engineering and an associate university professor of engineering. Although the transducer and wire mesh screen involved in Cowens' accident were never located, Blundell studied the apparatus surrounding the wire mesh screen in other ventilators manufactured by Siemens and examined Siemens' design drawings. As a result of these studies, Blundell testified concerning his opinion that Siemens' use of inappropriate tolerances caused the screens to become stuck as a result of dimensional factors or "secondary" causes such as contamination. In addition, Blundell opined that the method of assembly resulted in a phenomenon called "flaring," which caused the screens to stick in a hole in the transducer. ³ Blundell further testified that he believed Siemens should have provided a warning informing users of the likelihood of the screens' sticking.

The district court refused, however, to permit Blundell to testify with respect to approximately 230 dimensional measurements which he performed upon fourteen wire mesh screens which evidenced the flaring phenomenon. Similarly, the court disallowed Blundell's testimony concerning statistical calculations made after his examination of the fourteen screens. Counsel for the defendants objected to the proffered testimony on the ground that it was speculative and irrelevant because Blundell could not establish whether the screens measured were manufactured at any date close to manufacture of the screen involved in Cowens' accident. The district court sustained the objection, noting that the court did not believe that the testimony, which it found "very tenuously related to the issues in this lawsuit," would assist the jury.

Cowens contends that a discrepancy in the manufacturing dates of the screen involved in the accident and the measured screens was of no consequence because Siemens continued to use the same design specifications. In addition, Cowens argues that the district court erred in excluding the testimony because it would have assisted Blundell in fully explaining the flaring phenomenon and would have provided crucial circumstantial evidence which may have assisted the jury in determining why the screen involved in the accident had become stuck.

Our review of the record, however, persuades us that disparate manufacturing dates may have been of great significance in this case, and fully justified the exclusion of the testimony in question. It is settled law that evidence of experimental tests is inadmissible absent a foundational showing that the tests were conducted under conditions substantially similar to those surrounding the incident at issue. See Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 932 (8th Cir.1987). Further, the admissibility of such evidence is a matter resting largely in the discretion of the district court, and its decision in this regard will not be overturned absent a clear showing of an abuse of discretion. Id.

On voir dire, Blundell stated that he had no idea when the tested screens were made nor did he have any "knowledge of the exact date of manufacture of any screen." Significantly, the deposition testimony of Steve Eriksson, a designer in Siemens' ventilator division, indicated that the dimensions of the screens and holes where the sticking allegedly occurred would differ due to ordinary wear and tear of the tools used in manufacturing. In these circumstances, we are inclined to agree with the district court that the dimensions and statistical data taken from the screens measured by Blundell, which could have been manufactured several years later than the screen involved in the accident, ⁴ provided no useful information in determining whether the flaring phenomenon in fact caused the screen in the present case to stick. As such, Blundell's testimony in this regard would have been highly prejudicial to the appellees and of little probative value. Finally, because Blundell was permitted to express and explain his opinion as to the cause of the sticking, the exclusion of his empirical and statistical testimony cannot be said to have prejudiced Cowens. See Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1124 (8th Cir.1985) (exclusion of experimental evidence which was largely cumulative in nature held not to constitute an error), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986). Accordingly, we conclude that the district court did not abuse its discretion in excluding this portion of Blundell's testimony. ⁵ 5]

Cowens' next argument on appeal is closely related to that last discussed. Cowens contends that the district court erroneously refused to permit Joel Highstrom, a ventilator service technician at Kansas University Medical Center, to testify concerning his experience in 1984 and 1985 with wire mesh screens becoming stuck in the locating holes of appellees' ventilators. The transcript of Highstrom's testimony reveals that he was permitted to testify that he had encountered a stuck screen approximately a year and a half before trial. The district court refused to permit further examination along this line, however, noting that the incident referred to by Highstrom occurred after Cowens' accident; as with Blundell's excluded testimony, the district court stressed the dissimilarity of conditions resulting from the possibility of...