Baldauf v. Arrow Tank and Engineering Co., Inc.

Decision Date20 April 1999
Docket NumberNo. 96-360,96-360
Citation979 P.2d 166
PartiesHenry BALDAUF, Jr. and Louis Dryfuss Propane Corp., Plaintiffs and Appellants, v. ARROW TANK AND ENGINEERING CO., INC. and John Does one through ten, Defendant and Respondent.
CourtMontana Supreme Court

James D. Moore, Kalispell, Montana; Frank B. Morrison, Jr., Whitefish, Montana; Donald E. Hedman, Whitefish, Montana, For Appellant.

James T. Martin, Minneapolis, Minnesota; Charles R. Johnson, Great Falls, Montana, For Respondent.

Justice WILLIAM E. HUNT, SR. delivered the Opinion of the Court.

¶1 Henry Baldauf, Jr. (Baldauf) and Louis Dryfuss Propane Corp. (Louis Dryfuss) (collectively the Appellants) brought this products liability action against Arrow Tank and Engineering Co., Inc. (Arrow) and John Does one through ten to recover damages sustained when Baldauf's propane tank trailer rolled over while he was driving. The action proceeded to a jury trial on March 11 through 18, 1996, and a jury verdict and judgment was rendered in favor of Arrow by the Eighth Judicial District Court, Cascade County. Appellants appeal the jury verdict and certain pre-trial, trial, and post-trial rulings made by the District Court. We affirm.

¶2 The following issues are presented for review:

¶3 1. Was Arrow's expert witness, Lawrence Botkin, qualified to give opinion testimony concerning kingpin design, abuse and misuse, metallurgy, and accident reconstruction and analysis?

¶4 2. Was there sufficient evidence to support the jury's verdict?

¶5 3. Did the District Court err in denying Appellants' motion to apply sanctions against Arrow for its alleged violation of discovery procedures?

¶6 4. Did the District Court err in refusing to allow Appellants to introduce, for demonstrative purposes, a photograph of an exemplar kingpin?

¶7 5. Did the District Court err in adopting the special verdict form submitted by Arrow?


¶8 On August 31, 1987, Baldauf was driving his propane tractor-trailer on a curvy stretch of highway near Fernie, British Columbia, Canada. Baldauf testified that he was traveling at a speed of 55 mph (89 kph) before entering the curves, and that he engaged his jake brake and decelerated to 45 mph (73 kph) as he entered the curves. As he rounded the second curve, he immediately noticed something white in his left rear view mirror. Thereafter, Baldauf's tractor-trailer rolled and he was injured. Baldauf has no further recollection of the accident.

¶9 The Appellants' theory of the case was that the rollover was caused by failure of the vehicle's kingpin, the device by which the trailer is hitched to the tractor. Appellants argued that the kingpin severed from its attachment plate, the fifth wheel plate, due to a design or manufacturing defect, which severance then caused the tractor-trailer to roll over. Appellants' principal witness, Mark Firth (Mr. Firth), a metallurgical engineer, examined and tested the subject kingpin. He opined that the kingpin did not have an adequate radius to distribute the concentration of stresses placed on it during its use. Mr. Firth identified cracking in the kingpin and stated that as a result of the inadequate radius, small fatigue cracks developed at the juncture where the kingpin shaft meets the kingpin head, and that these fatigue cracks expanded in service over a number of years culminating in the complete fracture and failure ¶10 During cross examination, Mr. Firth acknowledged that his expertise did not include specific awareness of design practices of kingpins or design standards used in the kingpin industry. He testified that any component subject to cyclic loading, like the kingpin in this case, will develop fatigue cracking in service. He explained that the user of such a component should inspect the component and, upon observing fatigue cracking, should replace it. When asked whether it was feasible to design a kingpin that has an adequate radius but also is able to be used in the manner for which it was intended, Mr. Firth indicated that he did not know because such knowledge was beyond the scope of his expertise.

of the kingpin. Mr. Firth opined that this design or manufacturing flaw in the kingpin was further compounded by the fact that the user was precluded from inspecting the affected juncture of the kingpin due to its design. Mr. Firth testified that while the fracture of the kingpin was primarily a "brittle" fracture, there existed small regions of "ductile shear," or metal deformation, near the surface of the fracture site. Based on the presence of ductile shear at the fracture site, Mr. Firth opined that the fracture of the kingpin occurred under ordinary use rather than as a result of the rollover.

¶11 Appellants also presented testimony from John Baker (Mr. Baker), a qualified accident reconstructionist hired by Appellants to give opinion testimony concerning the cause of the accident. Mr. Baker based his analysis on the police report, pictures taken by others at the scene of the accident, and his own inspection of the roadway undertaken seven years after the accident occurred. Mr. Baker calculated the rollover threshold of the subject vehicle and stated that the tractor-trailer could not have rolled over on that curve of the road at a speed less than 71 mph to 74 mph. Based on his examination of the pictures showing the marks on the road and the placement of the vehicle after the accident, as well as his calculation of the rollover threshold of the vehicle, Mr. Baker opined that the accident was not speed-induced, and that the kingpin failed before the rollover.

¶12 Arrow's theory of the case was that Baldauf was driving too fast for the curve on which he was traveling, which caused the rollover, which in turn caused the kingpin to break. Arrow did not dispute the existence of fatigue cracking in the kingpin, but attributed this condition to the normal application of cyclic stresses on the kingpin as well as abuse or misuse of the kingpin over its twenty years of service. In support of its case, Arrow first presented testimony from Corporal Bryan Lapp (Corporal Lapp) of the Royal Canadian Mounted Police (RCMP) who was called to the scene of the accident to conduct an investigation. Corporal Lapp's duties with the RCMP included accident reconstruction and collision analysis for which he had several years training and experience. Corporal Lapp testified that he had performed accident reconstruction and analysis in 427 vehicle accidents, 25 of which involved rollovers similar to the present case. He testified he had particular expertise in speed calculations, "collision contacts and thrust angles," and "tractor-trailer rollovers in relation to speed analysis, weight shift, and load shift."

¶13 Corporal Lapp testified that there are nine characteristics common to skid marks on the road produced by a speed-induced rollover, and that the marks produced by the rollover in this case exhibited "just about every one"of those characteristics. Although the posted speed limit on the road was approximately 100 kph (60 mph), Corporal Lapp testified that a cautionary sign located some distance before the curve where the accident took place advised drivers to slow to 60 kph (38 mph). Corporal Lapp performed speed calculations utilizing the variables of the radius of the curvature of the tire marks; the gravitational force; the track width of the tire marks; the height of the center of gravity of the vehicle; and the slope of the curvature of the road from one side to the other. Corporal Lapp testified that based on his calculations, Baldauf was traveling at a speed of approximately 88 kph (54 mph) through the curve where his vehicle rolled over.

¶14 Corporal Lapp further stated that, upon inspecting the damage to the tractor ¶15 Arrow also called Lawrence Botkin (Mr. Botkin), a mechanical engineer, to give opinion testimony concerning kingpin design, abuse, and misuse, metallurgy, and accident analysis. Appellants were not satisfied with the foundation laid concerning Mr. Botkin's qualifications as an expert witness and requested permission to voir dire the witness. The court granted the request. After conducting voir dire, Appellants objected to Mr. Botkin's testimony on the basis of lack of foundation. The court overruled the objection, stating that the jury could determine the weight to be afforded Mr. Botkin's testimony.

                and the circular prints located next to the fog line on the side of the road, he surmised that the tractor had been "slammed down" on its side.  In explaining the significance of this finding, Corporal Lapp stated that when a trailer begins to roll, and the slack of the fifth wheel plate, to which the kingpin attaches, diminishes, the trailer "picks the tractor up and slams it down on the road."    Based on this characteristic of tractor-trailer rollovers, Corporal Lapp opined that the kingpin in the instant case was still intact when the rollover occurred.  Corporal Lapp believed that if the kingpin broke and was severed from the fifth wheel plate, the trailer would not be capable of causing the tractor to roll

¶16 Mr. Botkin examined and tested the subject kingpin. He refuted Mr. Firth's conclusion that the forces at work on the kingpin causing it to ultimately fail operated at the rear of the kingpin, the part closest to the trailer, where the fatigue cracking originated. Mr. Botkin identified a"lip" at the opposite end of the kingpin, where the ultimate break occurred, and stated that the lip would not exist had the forces operated at the rear. Mr. Botkin agreed with prior testimony describing the metal of the kingpin as very hard and capable of withstanding pressure of 130,000 pounds per square inch. Mr. Botkin opined that even with the fatigue cracking in the kingpin, the forces produced by application of the jake brake or a sudden turning of the vehicle, by Mr. Botkin's calculations, would not be great enough to...

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