862 F.2d 1404 (10th Cir. 1988), 86-1446, Wheeler v. John Deere Co.

Docket Nº:86-1446.
Citation:862 F.2d 1404
Party Name:Stephen Brent WHEELER, Plaintiff-Appellee, v. JOHN DEERE COMPANY, a Delaware Corporation, Defendant-Appellant.
Case Date:December 02, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1404

862 F.2d 1404 (10th Cir. 1988)

Stephen Brent WHEELER, Plaintiff-Appellee,


JOHN DEERE COMPANY, a Delaware Corporation, Defendant-Appellant.

No. 86-1446.

United States Court of Appeals, Tenth Circuit

December 2, 1988

Page 1405

Joe A. Moore, Holladay, Tenn. (Jack B. Sellers and Jefferson D. Sellers of Jack B. Sellers Law Associates, Inc., Sapulpa, Okl., with him on the brief), for plaintiff-appellee.

Ronald M. Gott (Paul S. McCausland, with him on the brief), of Gott, Young & Bogle, P.A., Wichita, Kan., for defendant-appellant.

Page 1406

Before MOORE and BALDOCK, Circuit Judges, and PARKER, District judge. [*]

BALDOCK, Circuit Judge.

Plaintiff-appellee, Stephen Wheeler (Wheeler), lost his right arm when it became entangled in the vertical unloading auger of a John Deere Titan series model 7720 combine. He brought this diversity case under a strict products liability theory alleging the combine was unreasonably dangerous. Applying Kansas law to the evidence, a jury awarded Wheeler $2.3 million. Defendant-appellant, John Deere Company (Deere), appeals from the judgment on the verdict. Deere asserts the district court improperly (1) admitted evidence of other accidents involving the Titan series combine, (2) admitted evidence of subsequent design changes in the machine, (3) charged the jury on the elements necessary to sustain the cause of action, and (4) denied Deere's motion for a directed verdict at the close of Wheeler's case-in-chief. Our jurisdiction arises under 28 U.S.C. Sec. 1291. We reverse and remand for a new trial.


In May 1981, Wheeler, then 21 years old, obtained employment as a truck driver with the Fenton Custom Combining Crew of Bristow, Oklahoma. Wheeler's employer, Larry Fenton, had been engaged in custom harvesting since 1973. Each spring, Fenton's crew departed with combines and grain trucks, and followed the wheat harvest through Oklahoma to Montana.

Prior to September 14, 1981, Wheeler was not involved with the actual operation and machine maintenance of the combines. Aside from maintaining and driving the trucks, his duties were limited to fueling the combines and washing their windows. On September 14, 1981, the crew had just returned from the wheat harvest and was in Leoti, Kansas, preparing the 7720 combine to harvest pinto beans. As part of the preparation, it was necessary to clean caked wheat and chaff from the combine's grain tank, vertical auger and sump.

During the cutting process, wheat particles inevitably gathered moisture and clogged the machine's unloading system. Once the grain was cut, two horizontal augers stretching across the bottom of the tank moved it into a sump. The vertical auger then lifted the grain to a horizontal unloading spout above the tank. The spout pivoted and delivered the grain into a truck. The augers were engaged by shifting a lever on the floor of the cab.

According to Fenton, the vertical auger on his 7720 combine was unable to completely clean the sump. Although after cutting he regularly attempted to clear the machine by continuing to run the unloading system, some accumulation remained. A cleanout door on the left side of the combine to the rear of the auger provided the only other means by which to rid the machine of excess wheat and chaff.

After checking the trucks on the morning of September 14, Wheeler approached the combine. Fenton had removed the cleanout door. Wheeler observed Fenton reaching inside the opening about eight inches and digging clumped wheat from the vertical auger with his hand. A combine operator for the crew, Steve Milner, was measuring the machines's hydraulic fluid.

Subsequent to loosening the wheat, Fenton directed Milner to start the engine and engage the auger in an attempt to dislodge and eject the remaining buildup. Fenton and Wheeler stood back. When the clogging persisted, Fenton climbed into the tank to kick the wheat down into the sump. He instructed Wheeler to then dig the grain from the auger and sump if the unloading system could not throw it out. Milner had disengaged the auger, but kept the engine running. Without warning Wheeler, Fenton told Milner who was on the landing outside the cab to again engage the auger, which he did. Both Fenton and

Page 1407

Milner were unaware that Wheeler at that moment had his arm extended into the auger and was removing wheat from it. Wheeler's right hand and arm were immediately drawn into the auger housing causing severe injury. As a result of the injury, a doctor amputated his entire arm.

Before trial, Deere stipulated that it was feasible to design the vertical auger to include two smaller cleanout doors which would have prevented Wheeler's injury, rather than the one large door which allowed him to place his arm inside the machine. The parties also agreed that at the time of the mishap no caution or warning was present next to the vertical auger cleanout door on the 7720 combine. Instead, a caution decal was located approximately twenty-six inches behind the door and seventy inches above the ground. While the warning advised the operator to "[k]eep all shields in place," and "[d]isengage and shut off all engine and/or motor power before servicing or unclogging [the] machine," trial testimony indicated that it was impossible to completely unclog the combine without removing the cleanout door and engaging the vertical auger.

Answering interrogatories, the jury assessed Wheeler's total damages at $3.1 million. It attributed 75% of the fault to Deere and 25% of the fault to Wheeler's employer, Larry Fenton, resulting in a $2.3 million verdict against the defendant Deere.


Deere first challenges certain evidentiary rulings of the district court. At trial, the judge permitted the live testimony of five witnesses who lost portions of their right arms while clearing the augers on Titan series combines. The judge also allowed Wheeler to impeach Deere's expert with evidence of all twenty-four accidents involving the vertical auger on Deere combines, and admitted exhibits reflecting design changes in the 7720 combine following Wheeler's accident. Deere assigns error to each of these decisions.

Fed.R.Evid. 103 instructs that unless a substantial right of the objecting party is affected, any error in the admission or exclusion of evidence is harmless. Motive Parts Warehouse v. Facet Enter., 774 F.2d 380, 396 (10th Cir.1985). Consequently, we review the district court's evidentiary rulings by considering the record as a whole. Herndon v. Seven Bar Flying Serv., Inc., 716 F.2d 1322, 1326 (10th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984). The onus of establishing reversible error rests with the complaining party. K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1156 (10th Cir.1985).


Both federal and Kansas law permit the introduction of substantially similar accidents in strict products liability actions to demonstrate "notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards." Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir.1987). Before introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case. Rexrode v. American Laundry Press Co., 674 F.2d 826, 829 n. 9 (10th Cir.), cert. denied, 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982); Julander v. Ford Motor Co., 488 F.2d 839, 846-47 (10th Cir.1973). While this foundation may be laid in the presence of the jury, the preferable approach is for the trial judge to hold a hearing outside its presence. Rexrode, 674 F.2d at 830.

Whether accidents are substantially similar depends largely upon the theory of the case: "Differences in the nature of the defect alleged may affect a determination whether the accidents are substantially similar.... How substantial the similarity must be is in part a function of the proponent's theory of proof." Ponder, 834 F.2d at 1560. Evidence proffered to illustrate the existence of a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. The requirement

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is relaxed, however, when the evidence of other accidents is submitted to prove notice or awareness of the potential defect. Exum v. General Elec. Co., 819 F.2d 1158, 1162-63 (D.C.Cir.1987). Any differences in the accidents not affecting a finding of substantial similarity go to the weight of the evidence. Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1083 (5th Cir.1986).

In this case, Wheeler obtained through discovery a list of twenty-four individuals injured by vertical unloading augers on Titan series combines. As part of his case-in-chief, Wheeler sought to present the live testimony of ten of those individuals to demonstrate the combine's dangerous propensities. The trial judge permitted Wheeler to lay the foundation for five of the witnesses in chambers, but refused to hear the remaining five because of the cumulative nature of their proposed testimony. Prior to the questioning, the judge stated the criteria...

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