Siminski v. Klein Tools, Inc., 87-1127
| Decision Date | 29 February 1988 |
| Docket Number | No. 87-1127,87-1127 |
| Citation | 840 F.2d 356 |
| Parties | Prod.Liab.Rep.(CCH)P 11,702 Frank SIMINSKI and Eda Siminski, Plaintiffs-Appellees, v. KLEIN TOOLS, INC., a foreign corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dennis H. Shafer, argued, Shafer, Koch & Juidici, P.C., Negaunee, Mich., for defendant-appellant.
A.H. Wisti, Hancock, Mich., Roger W. Zappa, argued, for plaintiffs-appellees.
Before MERRITT and RYAN, Circuit Judges; and BROWN, Senior Circuit Judge.
This products liability case applying Michigan law resulted in a jury verdict awarding the plaintiffs $1,200,000, reduced by 90% for contributory negligence, for injuries suffered to Mr. Siminski's back when he fell while wearing a safety belt manufactured by the defendant Klein Tools, Inc. The issue on appeal is whether the District Court erred in denying defendant's motions for a directed verdict and for judgment notwithstanding the verdict on the ground that plaintiffs failed to present sufficient proof of defect in the product to make out a prima facie case under Owens v. Allis-Chalmers Corp., 414 Mich. 413, 326 N.W.2d 372 (1982). We decide that plaintiff did not meet the standard set forth in Owens, and therefore reverse.
While working as a carpenter, Mr. Siminski slipped and fell. His fall was broken by the Klein safety belt he was wearing, at which point plaintiff felt a "jolt" and experienced sharp back pain. Subsequently, he endured extensive and persistent pain that resulted in prolonged disability and an enforced change in job to a lower paying occupation. Mr. Siminski has endured prolonged pain and suffering and his wife sought compensation for loss of consortium. The theory of plaintiffs' case was that the design of the Klein belt was too narrow in width, that a wider belt would have distributed the force of the broken fall more widely and thus avoided focussing the shock forces of his broken fall into the area of his back that was injured. Defendant countered that the belt was available as a component that could be and normally was combined with a wider "comfort pad" that would cushion shock forces; the pad was available to Mr. Siminski at the work site and known to him.
During pretrial discovery, defendant's counsel experienced great difficulty in identifying and deposing the expert witness upon which plaintiff was to rely. The District Court had ordered that plaintiff identify his expert by May 19, 1986 and make him available for deposition by June 18. Defendant was placed on a similar schedule, with which it complied.
Plaintiff originally identified an expert named Pucholski, but as the time for his deposition approached withdrew him. On June 30, another expert named Butler was identified. However, when on July 9 defense counsel traveled to Toledo to depose Mr. Butler, he was unprepared to answer questions.
Before trial commenced about a month later, the District Court ruled on motion made by the defendant to bar plaintiffs from offering any expert testimony and, further, to dismiss the lawsuit. Judge Miles denied the motion to dismiss, but granted the first motion and costs, explaining later that "by hedging deadlines" and disregarding the "unambivalent scheduling orders" and deadlines set by the court, plaintiffs' counsel had not "play[ed] the game fairly." App. 96. Judge Miles noted that he considered the resultant "handicap in making their case" a "suitable 'punishment' " for plaintiffs. Id. Defendant does not claim on appeal that the District Court abused its discretion in barring expert testimony as a discovery sanction.
At trial, the only testimony on defect offered by the plaintiffs was that of Mr. Siminski:
The District Court, noting that the parties conceded that "this case does not present the same complicated issues of causation as are usually present in defective design cases," decided that this testimony, coupled with other circumstantial evidence in the case that would be available to the jury, sufficed to constitute the prima facie case required by Owens v. Allis Chalmers. We disagree.
In Owens v. Allis Chalmers, the Michigan Supreme Court required that a plaintiff's...
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