McGowan v. Cooper Industries, Inc.

Citation863 F.2d 1266
Decision Date20 December 1988
Docket Number86-6284 and 86-6285,86-6283,Nos. 86-6055,86-6056,s. 86-6055
Parties27 Fed. R. Evid. Serv. 1084 George E. McGOWAN and wife Maxine McGowan, Plaintiffs-Appellants (86-6055, 86- 6285), Cross-Appellees, Donald Kent Berkley, Intervening Plaintiff-Appellant (86-6056, 86-6285), Cross- Appellee, v. COOPER INDUSTRIES, INC., et al., Defendants and Third Party Plaintiffs- Appellees, Cross-Appellants (86-6284), Pennwalt Corporation, Third Party Defendant-Appellant (86-6283, 86-6285), Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

James W. Owens (argued), Karen Alderdice, Paducah, Ky., for George and Maxine McGowan.

Bryce Franklin, Jr., Williams, Housman, Sparks & Franklin, Paducah, Ky., for Donald Berkley.

Thomas Russell, Whitlow, Roberts, Houston & Russell, Paducah, Ky., for Pennwalt Corp.

James L. Hardy, Hardy, Terrell-Boswell, Van F. Sims (argued), Paducah, Ky., for Cooper Industries, Inc.

John T. Reed, Paducah, Ky., for Babcock.

Before MERRITT, KRUPANSKY and RYAN, Circuit Judges.

RYAN, Circuit Judge.

Plaintiff George McGowan and intervening plaintiff Donald Berkley suffered severe injuries when a newly rebuilt air compressor owned by their employer, Pennwalt Corporation, exploded during a test run. They sued Cooper Industries, Inc., which manufactured the compressor, and Harold Babcock, a factory representative for Cooper who inspected the rebuilding of the compressor at Pennwalt's plant in Calvert City, Kentucky. Their action was brought on negligence and product liability theories. In addition, third party actions were filed by the defendants against Pennwalt Corporation for indemnity and contribution. Pennwalt, in turn, filed a counterclaim against Cooper Industries and Babcock for property damage and reimbursement for worker compensation sums paid to Pennwalt's employees, McGowan and Berkley.

The jury returned a verdict for Cooper Industries and Babcock, and the plaintiffs and Pennwalt now appeal.

The principal issue is whether the district court committed reversible error by excluding testimony offered by the plaintiffs and Pennwalt concerning the customary duties of factory representatives in Cooper's industry, as well as testimony concerning Pennwalt's routine business practice of deferring to the expertise of such factory representatives.

Our answer is that the court's rulings excluding the evidence were, under the circumstances, error that resulted in substantial prejudice to the appellants. We must, therefore, vacate the district court's judgment.

I.

Pennwalt Corporation operates a chemical plant in Calvert City, Kentucky, which employed plaintiff George McGowan and intervening plaintiff Donald Berkley. In March 1984, Pennwalt maintenance personnel The compressor was the principal component of a system which supplied compressed air throughout the Pennwalt plant for use in various plant functions. The compressor unit was hooked up to a series of discharge pipes which transported the compressed air to the place where it was needed. A block valve, which was located in the discharge piping some distance from the compressor itself, was closed so that the air flow could be stopped while the compressor was being repaired. Pennwalt had originally installed the block valve and discharge piping itself.

were rebuilding a large air compressor which Pennwalt had previously purchased from the manufacturer, a subsidiary of defendant Cooper Industries, and which had been damaged in October 1983. Berkley was a maintenance foreman and McGowan was a mechanic working on the project.

The rebuild project began shortly after the compressor was damaged, but could not be completed without Cooper's advice and assistance. On March 8, 1984, Pennwalt requested assistance from Cooper and, the next day, Pennwalt issued a written "purchase requisition" requesting:

Services required for factory service man to inspect assembly of one ... air compressor.

Pennwalt's subsequent "purchase order" to Cooper reiterated this transaction description. On March 12, Cooper sent defendant Babcock to the Pennwalt plant.

Babcock, who supervised the work of McGowan and the two mechanics rebuilding the compressor, suggested that some internal adjustments be made to the compressor unit. Once these adjustments were completed, on March 15, the compressor was considered ready for a test run. Babcock directed two successful preliminary test runs during which only the compressor motor was started. The purpose of these preliminary tests was to check for internal noise or vibration before compressing any air. A complete test was scheduled for later that day after the installation of the discharge pipes.

A Pennwalt employee, James Hurt, who died before trial, was summoned to start the compressor. Within a few seconds after it was started, the compressor exploded. McGowan lost both legs and Berkley and Babcock suffered leg and other injuries. A subsequent inspection showed that the discharge block valve in the piping attached to the compressor was closed at the time of the test.

The testimony of witnesses concerning the events which transpired immediately prior to the explosion is in substantial conflict. Babcock testified that his work on the compressor had been completed and that he remained at the Pennwalt plant solely as an observer. Hurt, the employee who started the compressor prior to the explosion, stated in his deposition that Babcock directed the test and instructed him to warm up the compressor before opening the block valve. Hurt further stated that he followed Babcock's instructions because factory representatives are usually in charge of checking Pennwalt's machines. Babcock denied that he gave Hurt any instructions or directions of any kind.

Following the accident, McGowan and his wife filed this action against defendants Cooper Industries and Babcock, seeking recovery on products liability and negligence theories. The complaint alleged that Babcock had negligently supervised the rebuild and start-up of the compressor. Berkley subsequently filed an intervening complaint which reiterated the same allegations.

Cooper filed a third-party complaint against Pennwalt and Berkley, alleging that the negligence of Pennwalt employees had caused the compressor explosion, and sought indemnity and contribution. Babcock also filed a third-party complaint against Pennwalt, seeking recovery for his injuries as well as indemnity and contribution. Pennwalt filed counterclaims against Cooper and Babcock seeking recovery for property damage and for workmen's compensation payments made to McGowan and Berkley.

Babcock's claims against Pennwalt were settled during the course of the trial. The remaining claims were submitted to the jury which was instructed to answer special The district court entered judgment dismissing plaintiffs' claims. The McGowans, Berkley, and Pennwalt (referred to collectively as appellants) appeal. Babcock and Cooper (referred to collectively as appellees) filed a protective cross-appeal.

interrogatories. The jury found that neither Cooper nor Babcock was liable but, contrary to the court's instructions, completed the remaining interrogatories, finding Berkley and Pennwalt negligent, and announcing the amount of damages suffered by McGowan and Berkley.

II.

At trial, appellants sought to introduce testimony by George Green concerning the customary duties of field service representatives in Cooper's industry, and his opinion as to the lack of care exercised by Babcock on the rebuild project. Green testified that as an engineer he worked frequently with factory representatives and was generally familiar with their procedures. Appellants offered Green as an expert witness on the customs in Cooper's industry.

The district court disallowed Green's proffered testimony based on two separate rationale. First, the court held that Green's testimony, if allowed, would tend to broaden the scope of Babcock's duties. The court apparently reasoned that Babcock's duties were limited to those contained in the "purchase order" issued by Pennwalt to Cooper Industries ("to inspect the assembly of one ... air compressor") and could not be expanded by parol evidence. Second, the court refused to allow Green to express his opinion on the care exercised by Babcock on the rebuild project, reasoning that the testimony would be an opinion on a matter which did not require scientific, technical, or other specialized knowledge and would not be helpful to the jury.

A.

With respect to Green's proffered expert testimony on industry custom, appellants argue that the court should have permitted Green to testify because, based on his training and experience, he knew and could testify as to the duties customarily assumed by service representatives in Cooper's industry. Appellants contend that factory representatives in Cooper's industry, including Babcock, when called in for consultation, customarily take charge of all tasks associated with rebuilding and starting compressors, including tasks related to block valves and safety devices, even though such devices are not a part of the compressor units which Cooper manufactures. Appellants also contend that factory representatives customarily give directions to employees on final start-ups of rebuilt compressors. The appellants contend that Babcock was negligent in not noticing that the compressor's block valve was closed before he directed the final start-up. The court disallowed the testimony, reading Pennwalt's purchase order as limiting Babcock's duties to work on the compressor unit itself, and not on the external piping, including the block valve. The court below apparently reasoned that Green's proffered testimony would not be helpful because the scope of Babcock's duty, as plainly stated in the purchase order, was not in issue. Appellants, however,...

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