Collins v. Wayne Corp.

Decision Date18 July 1980
Docket NumberNo. 78-1517,78-1517
Citation621 F.2d 777
Parties6 Fed. R. Evid. Serv. 498 H. E. COLLINS and Joetta Collins, Surviving Parents and personal representatives of Karen Collins, Deceased, et al., Plaintiffs-Appellants, v. WAYNE CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Hal Haralson, Austin, Tex., Dale Haralson, Tucson, Ariz., for plaintiffs-appellants.

Lancaster Smith, Harvey L. Davis, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

The day after Christmas in 1972 on a narrow bridge in New Mexico a tractor trailer carrying a cargo of cattle jackknifed and penetrated through the first four rows of seats of an oncoming bus. The collision killed nineteen and injured eleven passengers on the bus. The plaintiffs-appellants in this case are four of the injured and representatives of ten of the dead. The plaintiffs sued Wayne Corporation in products liability under Sections 402A and 402B, Restatement (Second) of Torts. They alleged that Wayne defectively designed the bus so that it was not crashworthy and that Wayne misrepresented that the bus was safe for intercity trips.

The case was tried to a jury under New Mexico substantive law. The district court refused to admit the Section 402B misrepresentation issue to the jury, and the jury answered the Section 402A crashworthiness issue in favor of the defendant Wayne. Plaintiffs bring this appeal, arguing the district court erred in refusing to submit the Section 402B issue and that the district court made three evidentiary errors in the course of the trial. For the reasons discussed below, we affirm the district court's take nothing judgment in favor of Wayne.

I

The plaintiffs were teenage members of an Austin church group that took a trip to New Mexico for a ski vacation. The group traveled in two buses, one owned by the church and the other leased by the church. Wayne Corporation designed and built the body and the interior of the leased bus. The leased vehicle was an activity bus, a front engine vehicle similar to a school bus. After traveling all day, the church group stopped for supper at a roadside restaurant in Clovis, New Mexico. The group left the restaurant around 6:30 in the evening, just as it was getting dark. They headed toward Fort Sumner, New Mexico on U.S. Highway 60-84. John Roberts drove the church's bus, and Jerry Estes drove the leased bus, following around a hundred yards behind Roberts.

U.S. Highway 60-84 passes over a bridge between Clovis and Fort Sumner. This bridge was just under 20 feet wide, while the roadway approaching the bridge was around 24 feet wide. John Roberts testified that he was traveling around 55 miles per hour as he approached the bridge, and that the leased bus was traveling at approximately the same speed. As Roberts approached the bridge, he saw a pair of headlights coming towards him in the distance. When Roberts reached the bridge, he took his foot off the accelerator and steered the left wheels of his bus towards the center line on the bridge to leave a margin of safety between the right side of his bus and the side of the bridge. He passed the headlights he had seen as he approached the bridge around 75 yards after he crossed the bridge. As he passed the headlights, Roberts realized that they belonged to a tractor trailer rig. He then looked in his rearview mirror to see how the tractor trailer and the leased bus would pass on the bridge. The leased bus never made it across the bridge. The tractor trailer, according to Roberts's testimony, scraped the side of the bridge and veered out across the center line. Roberts saw the lights go out on the leased bus and realized that the two vehicles had collided.

Roberts then stopped his bus as fast as he could. He told his young passengers to steel themselves so they could go back and help their injured friends and relatives on the leased bus. As the rescue party approached the wreckage, they passed two corpses on the embankment at the side of the leased bus. The rescue party went into the wrecked bus through the rear emergency door. The testimony on the condition of the interior of the wrecked bus conflicts. Those in the rescue party from the church bus testified that almost the entire contents of the bus people, seats, and luggage were crammed forward between the front third and the front half of the bus. Those in the rescue party testified that all the seats in the bus except for the rearmost two or three seats had broken completely free from their anchorages to the floor or had bent forward substantially. The first witness called by Wayne was a doctor who happened by the bridge just after the accident. He testified that he examined the survivors that the rescue party had taken out of the wrecked bus and that he then got into the wrecked bus to examine the dead who had not yet been taken off. He said that the seats in the bus were intact. He said most of the dead people were "sitting upright in a surprisingly normal position" in their seats in the front half of the bus.

The tractor trailer involved in this accident was carrying a full load of cattle. It weighed around 45,000 pounds, over twice the weight of the leased bus. The testimony was undisputed that the trailer, not the tractor, came over the engine and through the front windshield of the bus. The trailer dislodged the bus body from its chassis and actually compressed it. The two little girls whose bodies the rescue party found on the embankment as they approached the wrecked bus had been sitting in the front row of the bus. Apparently, these bodies were ejected through the bus's windshield before the trailer sealed it off. The best explanation for the ejection is that the bus first collided with the rear wheels of the tractor. This impact slowed the bus drastically and dislodged the trailer. As the trailer approached the bus, the two girls flew through the windshield.

Wayne constructed the bus seats by screwing bottom and back cushions onto a frame made from unpadded metal tubes. Wayne fastened the seats to the bus floor with self-tapping sheet metal screws. Only one thread in each screw gripped the sheet metal floor of the bus. Plaintiffs claimed that Wayne's design of the bus was defective because of: (1) faulty attachment of the seats to the floor; (2) lack of a padded, high back seat to contain and cushion passengers in a collision; and (3) defective seat leg wells. Plaintiffs' experts testified that more of the bus passengers could have survived the collision with less severe injuries had the bus been equipped with state of the art seats at the time of manufacture.

Wayne argued at trial that the collision was so severe that no matter how the bus was designed, the plaintiffs would have suffered the same injuries. Accordingly, much of the testimony at trial centered on determining the speeds of the bus and the tractor trailer before the accident. The plaintiffs tried to show that the bus and the tractor trailer were traveling only at moderate speeds and that more of the passengers could have survived the collision or suffered less severe injuries had the bus and its seats been better designed to withstand a crash. The plaintiffs' primary accident reconstruction expert was Derwyn Severy. He testified that based on his analysis the bus was traveling between 12 and 25 miles per hour at the time of impact and that the tractor trailer was traveling between 32 and 41 miles per hour. Plaintiffs also introduced the testimony of a National Transportation Safety Board engineer who calculated the bus's speed at impact at between 30 and 41 miles per hour and the tractor trailer speed at a figure between 45 and 49 miles per hour. The accident reconstruction done by Wayne's experts showed that the accident was more severe than the plaintiffs' testimony indicated. Wayne's expert testified the bus was traveling between 50 and 55 miles per hour at the moment of impact and that the tractor trailer was traveling between 45 and 50 miles per hour. Plaintiffs offered testimony that the seats in the bus and their attachment to the floor made the bus uncrashworthy and a defective product. Predictably enough, Wayne offered directly conflicting testimony. The jury credited the testimony of Wayne's experts.

II

Plaintiffs first claim that the district court committed reversible error in refusing to allow the deposition testimony of George Greene into evidence as an admission of the defendant Wayne. The plaintiffs submitted an interrogatory to Wayne asking it to identify each person it had retained "as an expert in the field of automobile collision investigation" to analyze or investigate any aspect of the accident. Wayne's response indicated it hired Greene two days after the accident. Wayne also supplied the plaintiffs with the Report of Investigation prepared by Greene. Later, Wayne made Greene available to the plaintiffs, and the plaintiffs took his deposition. Shortly before trial, Wayne moved in limine to exclude Greene's testimony on the ground that Greene was a consultant whose opinions were not discoverable under Rule 26 of the Federal Rules of Civil Procedure. Plaintiffs responded by arguing that Greene's deposition was admissible under Rule 801(d)(2)(C) of the Federal Rules of Evidence as an admission of a party opponent. The district court took the motions and briefs filed by the plaintiffs and Wayne under advisement and withheld any ruling on the admissibility of Greene's deposition testimony until plaintiffs prepared to offer it as part of their trial evidence. The district court overruled the defendant's motion in limine to exclude the testimony, but it also overruled plaintiff's motion to have Greene's deposition introduced as an admission of an opponent. The district court held that the plaintiffs could offer...

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