Columbian Rope Co. v. Todd, 05A04-9301-CV-11
| Decision Date | 29 March 1994 |
| Docket Number | No. 05A04-9301-CV-11,05A04-9301-CV-11 |
| Parties | Prod.Liab.Rep. (CCH) P 13,899 COLUMBIAN ROPE COMPANY, Appellant-Defendant, v. Vernon C. TODD, Jr., Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
George E. Purdy, George T. Patton, Jr., Bose, McKinney & Evans, Indianapolis, for appellant.
P. Gregory Cross, Cross, Marshall, Schuck, Deweese, Cross & Feick, Muncie, William E. Ervin, Ervin & Barry, Hartford City, for appellee.
Defendant-Appellant Columbian Rope Company (Columbian) appeals a judgment in favor of Plaintiff-Appellee Vernon C. Todd (Todd). We affirm.
Columbian raises the following restated issues:
1. whether the trial court erred in allowing Todd's expert to testify regarding the adequacy of Columbian's product warnings;
2. whether the trial court erred in admitting rope samples into evidence; and
3. whether the trial court erred in denying Columbian's Ind.Trial Rule 50(A) motion at the close of Todd's case-in-chief.
In May, 1985, Todd, an experienced tree worker, was hired to cut down a tree located on property owned by Jan Etchison. On the morning of May 19, 1985, Todd arrived at Etchison's property to perform the work pursuant to a private agreement with Etchison. He used 1/2 inch manila rope borrowed from his regular employer, Townsend Tree Service, to climb approximately sixty feet up into the eighty-foot tree. Upon reaching this height, Todd determined that he would rappel down to the ground and cut the tree down all at once. Todd rappelled down twenty-five to thirty feet on the first descent. He started to kick out again and the rope broke. Todd fell between thirty and thirty-five feet to the ground below. He landed on his buttocks and sustained multiple injuries.
Prior to filing a product liability action against Columbian, Todd took the two pieces of the separated rope, measuring approximately ten feet and one hundred and forty feet in length, to a law firm. The law firm sent both portions of Todd's rope and a section of new rope (exemplar) to a consulting engineering firm, Keeler-Webb Associates. Keeler-Webb sent the ten foot section of the rope, along with the exemplar, to other experts for testing. Sometime thereafter, Keeler-Webb lost the one hundred and forty foot section of rope it had retained.
On May 17, 1987, Todd filed a complaint alleging that Columbian had placed a defective rope into the stream of commerce. Over five years later, on October 6, 1992, Columbian filed a motion in limine requesting the trial court to prohibit Todd from presenting expert testimony concerning the condition of the rope used at the time of the accident.
On October 14, 1992, the trial court held a hearing on the motion in limine. Columbian argued that the trial court should not allow At trial, the court allowed McCann to testify, over Columbian's objection, about the adequacy of warnings provided by Columbian regarding the amount of load that Columbian's 1/2 inch manila rope could withstand. McCann did not testify regarding any tests performed on the original rope.
Jim McCann (of Keeler-Webb) to testify about any tests he did on the lost evidence or any independent calculations he may have made. On October 16, 1992, the trial court issued a written ruling on the motion in limine. In the ruling, the trial court stated that it would not prohibit all expert testimony but would prevent "the admissibility of certain tests that the defendants were not given the ability to duplicate as a result of the destruction or loss of the rope." (R. 93)
At the conclusion of Todd's case, Columbian moved for a verdict on the evidence pursuant to T.R. 50. The motion was denied.
The jury found that Columbian was liable for Todd's injuries and awarded damages of $207,039.36. The trial court then entered judgment in accordance with the jury's verdict. Columbian now appeals that judgment.
Columbian contends the trial court committed reversible error in allowing McCann to testify about the inadequacy of the warnings accompanying Columbian's 1/2 inch manila rope. Columbian argues that McCann's testimony was prejudicial because there was a possibility that his "mental impressions" garnered from inspection of the original rope would seep into his trial testimony about warnings.
Evidentiary determinations are committed to the trial court's discretion, and we will reverse the determination only upon a showing of an abuse of discretion. Brown v. Terre Haute Regional Hosp. (1989), Ind.App., 537 N.E.2d 54, 60. An abuse of discretion occurs only if the court's determination is clearly against the logic and effect of the facts and circumstances before the court. McCullough v. Archbold Ladder Co. (1993), Ind., 605 N.E.2d 175, 180. A trial court has the discretion to weigh the probative value of testimony against the possible prejudice of the testimony. Beresford v. Starkey (1990), Ind.App., 563 N.E.2d 116, 125, rev'd on other grounds but expressly affirmed on this issue, (1991), Ind., 571 N.E.2d 1257.
In its motion in limine, trial objection, appellate brief, and oral argument to this court, Columbian emphasized the need to "level the playing field." See Appellant's Brief at 36. This goal was pursued in Nally v. Volkswagen of America (1989), 405 Mass. 191, 539 N.E.2d 1017, a case relied upon by the trial court in ruling on Columbian's motion in limine. In Nally, the administrator of an automobile passenger's estate brought a wrongful death action against the automobile manufacturer and seller. The manufacturer moved for preclusion of the testimony of Nally's expert because the expert had destroyed significant automobile parts during testing. The trial court granted the manufacturer's motion and later granted summary judgment on the basis that the plaintiff no longer had a prima facie case. Upon review, the appellate court established the rule that where important evidence is not available because of an expert's actions a trial judge "should preclude the expert from testifying as to his or her observations of such items before he or she altered them and as to any opinion based thereon." 539 N.E.2d at 1021. The reason for the rule was "the unfair prejudice that may result from allowing an expert deliberately or negligently to put himself ... in the position of being the only expert with first-hand knowledge of the physical evidence on which expert opinions as to defects and causation may be grounded." Id. The Massachusetts court held that "[a]s a matter of sound policy, an expert should not be permitted to intentionally or negligently destroy or dispose of such evidence, and then to substitute his or her description of it." Id. The court then remanded the case to the trial court with instructions that the trial judge make preliminary findings "in order to determine whether [ ] testimony [of the plaintiff's expert] should be admitted in full or limited, and, if it should be limited, the extent of the limitation." Id. at 1022. The court warned that the trial court "should go no further than to preclude tainted testimony." Id.
In the present case, the trial court's ruling on Columbian's motion in limine was an indication to Todd that the court would not allow McCann to testify about any tests done on the original rope which Columbian had not been able to duplicate. The ruling was an indication that Todd's manufacturing defect case would be severely hampered, if not rendered impossible, at trial. Thus, Todd was left with presenting either a product warning or design defect case. 1
At trial, with the exception of identifying the type of rope manufactured by Columbian and used by Todd at the time of the accident, McCann limited his testimony to a discussion of whether Columbian's warnings about the strength of manila rope were sufficient to inform a tree climber or his employer of the rope's limitations. In testifying on this issue, McCann referred to calculations based upon the capabilities of a new rope. He testified that the manila rope sold by Columbian as "tree" rope did not meet the demands put on it by tree climbers. McCann did not refer to any of the tests made on the original rope, nor did he testify about any manufacturing defect. His testimony was based on the assumption that there was no manufacturing defect in the original rope. Indeed, at the close of trial the jury was instructed that "[t]he unexplained failure of a party to produce evidence peculiarly within that party's control gives rise to the inference that had the evidence been produced, it would have been unfavorable to that party." (R. 162).
We hold that the trial court did not err in allowing McCann to testify about the insufficiency of Columbian's warnings. McCann did not testify to anything that could not have been testified to by any similarly qualified expert. His calculations were based on his knowledge of engineering and figures provided in Columbian's own publications. His calculations were not based, even in part, on any testing done on the rope used by Todd. Given the subject matter of McCann's testimony, it was impossible for any "mental impressions" gained through the viewing of the original rope to have prejudiced Columbian.
Columbian further contends that it was prejudiced because the trial court's ruling subjected it to the uncertain results of a battle of the experts. Columbian bases its contention on Headley v. Chrysler Motor Corp. (D.Mass.1991), 141 F.R.D. 362. In Headley, the federal district court held that the exclusion of any and all expert evidence was proper where the plaintiff destroyed the subject automobile in a product defect case. The plaintiff argued that both parties were disadvantaged by the destruction of the automobile and would have to rely on the very same evidence. Thus, the plaintiff reasoned that the parties were on equal...
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