Dabney v. Montgomery Ward & Co., Inc.

• Citation: 761 F.2d 494
• Decision Date: 09 May 1985
• Docket Number: No. 84-1537,84-1537
• Parties: , 17 Fed. R. Evid. Serv. 1228 Marjorie Louise DABNEY, Appellee, v. MONTGOMERY WARD & CO., INCORPORATED, Appellant, and Honeywell, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 494

761 F.2d 494

1 Fed.R.Serv.3d 991, 17 Fed. R. Evid. Serv. 1228

Marjorie Louise DABNEY, Appellee, v. MONTGOMERY WARD & CO., INCORPORATED, Appellant and Honeywell, Inc.

No. 84-1537.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1984.

Decided May 9, 1985.

Michael W. Liebbe, Davenport, Iowa, for appellant.

J. Bryan Schulte, Burlington, Iowa, for appellee.

Before ROSS and McMILLIAN, Circuit Judges, and DEVITT ^*, Senior District Judge.

McMILLIAN, Circuit Judge.

Montgomery Ward & Co. appeals from a final judgment entered in the District Court ¹ for the Southern District of Iowa upon a jury verdict awarding Marjorie Louise Dabney $2,000,000, which amount included prejudgment interest, for injuries sustained in a fire allegedly caused by a wall heater (furnace) manufactured by Montgomery Ward. For reversal Montgomery Ward argues that the district court erred in (1) denying its application for destructive testing of the louvers of the furnace, (2) denying the jury's request for a transcript of the testimony of an expert witness, (3) denying a request to amend an answer and an instruction on comparative fault, (4) denying its motion for new trial based on insufficient evidence as to proximate cause, (5) admitting into evidence cumulative photographic evidence of Dabney's injuries, (6) denying its request for remittitur, and (7) denying its motion for altered judgment based on a tolling of the interest during the pendency of Montgomery Ward's successful appeal on the first trial. For the reasons discussed below, we affirm the judgment of the district court.

On October 15, 1977, Dabney suffered serious burns in a fire which occurred in her apartment in Burlington, Iowa. She leased this apartment and the lessor bore the responsibility of cleaning and maintaining the apartment, including the furnace. At the time of the fire, Dabney was 51 years old and lived alone in the apartment. Dabney was employed as a waitress at a neighborhood tavern and normally worked 45-69 hours per week at the rate of $3.50 per hour.

Dabney testified that on the evening of the fire she had fallen asleep on the sofa in the living room. The sofa was 10-15 feet from the furnace and was located on the north wall of the living room under a window covered by draperies. The draperies caught fire and fell from the rod onto Dabney and the back of the sofa. Dabney testified that she awoke but was unable to see because of the smoke. When she tried to get out of the front door of the apartment, she was unable to manipulate the door knob because of the burns on her hands and arms. She then went to the rear of the apartment and into a closet which had a common wall with the apartment on the other side of the building occupied by her mother. She knocked on the wall, moaned and collapsed in the closet. Dabney's mother was awakened by "a terrible noise" and heard her daughter on the other side of the wall. Firemen found Dabney severely burned and collapsed in the closet adjacent to the apartment bathroom.

As a result of the fire, Dabney sustained serious injuries, including second and third degree burns over 36% of her body. She was hospitalized at the University of Iowa Burn Treatment Center for treatment of these burns. Dabney underwent eleven surgical operations over a three-year period. As a result of her burns, Dabney could not shut her eyelids and her eyelids were sewn almost completely shut for two years. Dabney was required to wear elasticized "pressure garments" for three and one-half years in order to reduce the scarring from the burns. She also wore collars or braces, including a mouth brace, for two years in order to minimize contraction of her skin while it healed. Her skin will not regenerate, her sweat glands are permanently destroyed on the areas where she was burned, and she has permanently lost the use of her tear ducts. Because of the extensive burns to the skin, she is unable to tolerate extremes of heat and cold. She also suffers from emotional depression as the result of the change in her physical appearance. Dabney testified that she frequently is afraid to go to sleep at night because of the fire. Dabney offered evidence of past and future medical expenses in the amount of $88,945. Her physician testified that Dabney is unemployable and suffers permanent disfigurement, scarring and pain.

On October 12, 1979, Dabney filed suit against Montgomery Ward and sought money damages for personal injuries she sustained as a result of the October 15, 1977, fire in her apartment. Dabney specifically alleged that the fire in her apartment was proximately caused by a defect in the design of a Montgomery Ward SBI9074 furnace. On September 23, 1981, the jury returned a verdict in favor of Dabney in the amount of $1,000,000. The judgment entered thereon was subsequently reversed and the case remanded for retrial by order of this court in Dabney v. Montgomery Ward & Co., 692 F.2d 49 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983). ² On retrial a verdict was rendered on February 9, 1984, for Dabney in the amount of $2,000,000; on the same date the district court entered judgment for that amount and awarded Dabney prejudgment interest from the date of the filing of the complaint on October 12, 1979, until the date of the second judgment. On February 21, 1984, the district court denied Montgomery Ward's request for a new trial or an altered judgment. This appeal followed.

Dabney's theory of the cause of the fire is that the furnace was defective in design. Her experts stated that the natural gas flames from the main burners of the furnace were not confined inside the heat exchangers as required by the American Gas Association standards, but instead "licked out" beyond the base of the heat exchangers into the convective flow of room air through the furnace. All the combustion products and flames should be confined inside the heat exchangers and then discharged up the flue and out the chimney. During operation of the furnace, cooler room air was drawn into the bottom of the furnace, past the heat exchangers and then out the louvers. Dabney's experts testified that the flames "licked out" of the burner because the cross-section of the heat exchangers had not been properly designed and that this defect had existed at the time of manufacture. The experts testified that the furnace had ignited dust and lint which had accumulated inside the unit and the fire progressed outside the furnace with the natural convection of air through the louvers, down and directly onto combustibles in front and to the right of the furnace.

Montgomery Ward's experts testified that it was extremely unlikely that the fire started inside the furnace. The experts testified that no amount of lint or other debris could have accumulated inside the furnace sufficient to have possibly generated enough heat long enough to cause the fire, especially to have caused burning particles to fall 3-4 feet from the furnace (on the rug, curtains, sofa, or fur coat).

Destructive Testing of the Furnace

Montgomery Ward filed an application on October 11, 1983, for approval to perform destructive testing on certain parts of the furnace which had been involved in the fire. Montgomery Ward wanted to test portions of the louvers by exposing them to the kind of heat that would have been generated in a fire consistent with Dabney's theory of the cause of the fire. Dabney resisted this method of testing because the furnace (or at least that part of it which she considered essential to her case) would have been completely destroyed in the testing process. The district court denied Montgomery Ward's request to subject the louvers to this type of testing but did approve testing of three portions of the furnace's side wall assembly.

Montgomery Ward argues that the district court abused its discretion in denying its motion for destructive testing because the testing was essential to determine whether the discoloration of the paint on the louvers was caused by the fire or by other causes. Montgomery Ward argues that the district court's denial of the testing prevented it from obtaining evidence which would impeach Dabney's expert witnesses' credibility and discredit Dabney's theory of the cause of the fire. Montgomery Ward further argues that its interest in the destructive testing of the louvers greatly outweighed Dabney's interest in not performing the testing because photographs could have and did preserve evidence of the actual appearance of the louvers and Dabney had ample witnesses to testify as to what the photographs represented.

Dabney argues that the district court properly denied Montgomery Ward's request for destructive testing because the application was untimely and was deficient on its face. Dabney argues that Montgomery Ward did not request an order for destructive testing until October 1983, four years after the fire and two years after the first trial of the case. Further, Dabney argues that Montgomery Ward's application was deficient because it failed to specify the time, place and manner of the testing, the size of samples to be taken from the furnace, or to indicate clearly that the results would be relevant and material to the issues in this case. Finally, Dabney argues that Montgomery Ward was not prejudiced because it had an opportunity prior to the first trial to photograph, inspect and test the furnace and, in compliance with the district court's order, was able to conduct destructive testing on portions of the furnace prior to the second trial.

Fed.R.Civ.P. 34 provides that "any party may serve on any other party a request ... to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served." In general, parties may obtain discovery regarding any matter...