Alevromagiros v. Hechinger Co.

• Decision Date: 21 May 1993
• Docket Number: No. 92-1546,92-1546
• Citation: 993 F.2d 417
• Parties: Prod.Liab.Rep. (CCH) P 13,479 Theodore ALEVROMAGIROS, Plaintiff-Appellant, v. HECHINGER COMPANY; White Metal Rolling and Stamping Corporation of Atlanta, GA, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 417

993 F.2d 417

Prod.Liab.Rep. (CCH) P 13,479

Theodore ALEVROMAGIROS, Plaintiff-Appellant, v. HECHINGER COMPANY; White Metal Rolling and Stamping Corporation of Atlanta, GA, Defendants-Appellees.

No. 92-1546.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1993.

Decided May 21, 1993.

John A. Keats, Fairfax, VA, argued for appellant.

Thomas L. Appler, argued, (Robert R. Vieth, on brief), McGuire, Woods, Battle & Boothe, McLean, VA, for appellees.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

OPINION

RESTANI, Judge:

This is a products liability case, brought by an injured individual against the manufacturer and seller of a ladder allegedly containing a design defect. ¹ At trial, the expert witness for plaintiff testified that the ladder did not conform to advisory industry standards, although he had never tested or examined an undamaged model of the ladder. At the close of plaintiff's case, the court granted defendants' motion for a directed verdict on the ground that plaintiff had not established the violation of any standard. We affirm the district court's decision, holding that a directed verdict in a products liability case is appropriate where an expert witness fails to prove that advisory industry standards have been violated or that those standards fall below an acceptable level.

I

Plaintiff-appellant Theodore Alevromagiros is the owner of a chain of eating establishments called Fantastic Family Restaurants, which offer Greek and American cuisine. In the summer of 1989, while conducting repairs on his restaurant in Herndon, Virginia, Alevromagiros directed a contractor to buy a ladder from defendant-appellee Hechinger Company ("Hechinger"). On behalf of Alevromagiros, the contractor purchased a six-foot high stepladder manufactured by defendant-appellee White Metal Rolling and Stamping Corporation of Atlanta, Georgia ("White Metal"). No accident occurred when the ladder was used at that time.

Several months later in December 1989, Alevromagiros climbed on the ladder to reset some ceiling tiles. While resetting the tiles, Alevromagiros felt "some bending or something" in the ladder. He then fell to the floor, severely fracturing his arm. Two eyewitnesses to the incident confirmed that the ladder twisted, causing Alevromagiros to fall backwards. ²

The only expert witness to testify at trial was Stanley Kalin, called to the stand by plaintiff-appellant Alevromagiros. The district court found that Kalin, who received a bachelor's degree in industrial engineering from Johns Hopkins University, was qualified to be an expert witness. ³ On direct examination, Kalin drew the judge's and jury's attention to the bent and twisted appearance of the ladder from which Alevromagiros fell. In particular, he noted the buckling of the spreader bars, which connected the front and rear portions of the ladder. The front part of the ladder was also not aligned with the rear part. Kalin continued on to point out the absence of safety features such as triangular bracing, better designed spreaders, and stiffeners.

Alevromagiros did not seek to introduce into evidence an undamaged ladder otherwise exactly like the one involved in the accident. After discovering that local Hechinger stores no longer carried that particular model, Alevromagiros stopped searching. Therefore, Kalin never conducted a physical examination of an identical but undamaged ladder to determine its safe or unsafe design. During Kalin's testimony, Alevromagiros sought to introduce a competitor's ladder containing safety features not present in the ladder sold by Hechinger to Alevromagiros. The district judge refused to admit the competitor's ladder on the grounds that "I don't believe that the expert can bring in one ladder from a competitor and attempt to make a standard out of that." The judge also sustained an objection to Kalin's testimony about the safety features of other ladders because "[t]he question is not what other ladders have."

On cross-examination, Kalin acknowledged that there were advisory industry standards promulgated by the American National Standards Institute (ANSI) and Underwriters Laboratories (UL). Kalin also admitted the existence of a UL acceptance file, indicating that the ladder at issue in the case complied with UL standards. He did not agree that the ladder conformed to ANSI standard 14.2, which requires a metal spreader or locking device of sufficient size and strength to securely hold the front and back sections of a ladder in the open position. ⁴ Although Kalin failed to perform the recommended ANSI tests on an identical but undamaged ladder, he maintained that the construction of the ladder was not in accordance with the literal wording of the standard. He also stated that, "tragically," the ANSI and UL standards did not require triangular braces on the rear portion of a ladder. ⁵

After Alevromagiros had presented all of his evidence, Hechinger and White Metal moved for a directed verdict. In discussing the motion, the district judge noted that Kalin "didn't testify to any standards" and "no tests ... have been performed." The judge inquired of the parties,

Don't we have to have more than just somebody saying, I am an industrial engineer and I have looked at this ladder, it is the only one I have really looked at for this purpose, but I don't like it, there ought to be something else done to it? Doesn't there have to be more than that to make out a case of defective design?

The district judge ultimately granted defendants' motion for directed verdict, from which plaintiff Alevromagiros now appeals.

II

The United States District Court for the Eastern District of Virginia had jurisdiction over this case on the ground of diversity of the parties. See 28 U.S.C. § 1332(a)(1) (1988). The case is properly before this court as an appeal of a final judgment. 28 U.S.C. § 1291 (1988). Because the situs of the accident was Virginia, the law of that state will apply in this diversity action. See Restatement (Second) of Conflict of Laws § 146 (1971) ("In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties....").

There are two issues presented by this appeal: 1) whether plaintiff introduced sufficient evidence to withstand a motion for directed verdict; and 2) whether the judge erred in refusing to admit physical or testimonial evidence regarding a competing product. The district court's grant of a directed verdict will be upheld "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In reviewing the district court's decision, this court must view the evidence in the light most favorable to the non-movant. Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir.1988), cert. denied, 490 U.S. 1107, 109 S.Ct. 3159, 104 L.Ed.2d 1022 (1989). A judge's evidentiary ruling will be disturbed only upon a showing of abuse of discretion. See El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 487 (4th Cir.1986).

A

To prevail in a products liability case under Virginia law, the plaintiff must prove that the product contained a defect which rendered it unreasonably dangerous for ordinary or foreseeable use. In addition, the plaintiff must establish that the defect existed when it left the defendant's hands and that the defect actually caused the plaintiff's injury. Marshall v. H.K. Ferguson Co., 623 F.2d 882, 885 (4th Cir.1980) (citing Logan v. Montgomery Ward & Co., 216 Va. 425, 219 S.E.2d 685 (1975)). The product need not incorporate the best or most highly-advanced safety devices. Id. at 886.

In determining what constitutes an unreasonably dangerous defect, a court will consider safety standards promulgated by the government or the relevant industry, as well as the reasonable expectations of consumers. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 337 (4th Cir.) (applying Kentucky law), cert. denied, --- U.S. ----, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991). Consumer expectations, which may differ from government or industry standards, can be established through "evidence of actual industry practices, ... published literature, and from direct evidence of what reasonable purchasers considered defective." Id. ⁶

"Absent an established norm in the industry," a court is constrained to rely on the opinion testimony of experts to ascertain the applicable safety standard. Ford Motor Co. v. Bartholomew, 224 Va. 421, 430, 297 S.E.2d 675, 679 (1982). The credibility of competing experts is a question for the jury only if the party with the burden of proof has offered enough evidence to sustain a verdict in its favor. See Lust v. Clark Equipment Co., 792 F.2d 436, 438-39 (4th Cir.1986) (refusing to uphold JNOV for defendant where the plaintiff's expert offered ample proof that the product did not contain safety features present in the voluntary industry standards).

The cases that plaintiff-appellant cites are distinguishable either on the law or on the facts. In Carney v. Sears, Roebuck & Co., the Fourth Circuit reversed a decision made in favor of a store that sold a ladder which subsequently broke, thereby injuring plaintiff. 309 F.2d 300, 306 (4th Cir.1962). The legal significance of Carney, which has no...