Dixon v. International Harvester Co., 83-4364

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 754 F.2d 573
• Docket Number: No. 83-4364,83-4364
• Parties: , 17 Fed. R. Evid. Serv. 837 Mary Lou Clark DIXON, Administratrix of the Estate of Charlie Dixon and Mary Lou Clark Dixon, Individually, Plaintiff-Appellant Cross-Appellee, International Paper Company, a foreign corporation, Intervenor-Appellant Cross-Appellee, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellee Cross-Appellant.
• Decision Date: 07 March 1985

Page 573

754 F.2d 573 53 USLW 2472, 17 Fed. R. Evid. Serv. 837 Mary Lou Clark DIXON, Administratrix of the Estate of
Charlie Dixon and Mary Lou Clark Dixon,
Individually, Plaintiff-Appellant Cross-Appellee,
International Paper Company, a foreign corporation,
Intervenor-Appellant Cross-Appellee,
v.
INTERNATIONAL HARVESTER COMPANY, Defendant-Appellee Cross-Appellant. No. 83-4364. United States Court of Appeals,
Fifth Circuit. March 7, 1985.

Page 577

Maples & Lomax, F. Gerald Maples, Pascagoula, Miss., for Dixon.

Aultman & Aultman, James D. Johnson, Louie F. Ruffin, Hattiesburg, Miss., Ransom P. Jones, III, Pascagoula, Miss., for Intern. Paper.

Heidelberg, Woodliff & Franks, W. Swan Yerger, David W. Dogan, III, Jackson, Miss., for Intern. Harvester.

Appeals from the United States District Court for the Southern District of Mississippi.

Before WISDOM, RANDALL and JOLLY, Circuit Judges.

Page 578

E. GRADY JOLLY, Circuit Judge:

In this Mississippi products liability diversity action the plaintiff was injured by a pine sapling that entered the cab of the crawler tractor he was driving. He brought suit against the tractor manufacturer alleging defective design under strict liability principles, and negligent design. After trial, the jury returned a verdict for the plaintiff but the district court rendered judgment notwithstanding the verdict. The plaintiff on appeal seeks reinstatement of the jury verdict arguing that there is sufficient evidence to support the verdict. The defendant cross-appeals, contending that the damage award is excessive, the district court committed evidentiary errors, and the court erred in denying its alternative motion for new trial based upon insufficiency of the evidence. The plaintiff's employer, who intervened at trial, appeals, seeking reimbursement of workmen's compensation benefits paid to the plaintiff. We hold that the district court erred in rendering judgment notwithstanding the verdict. We therefore reinstate the jury verdict on liability, but because the jury's assessment of damages is excessive, offer the plaintiff a remittitur of the award or a new trial on damages. We also hold that the plaintiff's employer is entitled to recover the workmen's compensation benefits that it paid to the plaintiff.

I.

The accident occurred when Charlie Dixon, an employee of International Paper Company, was plowing fire lanes on April 22, 1980, on a tractor (TD7C) manufactured by the defendant, International Harvester Company (Harvester). Dixon was operating the tractor on International Paper land, recently ravaged by a hurricane, in George County, Mississippi. The hurricane had overturned many trees and saplings, leaving them protruding from the ground at various angles. While Dixon was running the tractor at approximately two miles an hour, a tree sapling, about two inches in diameter at its tip, entered the lower left front of the tractor cab through an open area between a support bar and the dashboard. The sapling speared Dixon in the abdomen and pinned him into the upper right-hand corner of the cab where he remained for approximately thirty-five to forty minutes.

Dixon had been operating the cab for over an hour prior to the accident when Ottis Davis, a co-worker, heard a tractor idling high, and suspected there might be a problem. When Davis investigated and found Dixon pinned inside the tractor, he returned to the Pine Level Station, the International Paper area headquarters, to radio for help. The other co-workers who were dispatched to extricate Dixon used a power saw to cut the tree inside and outside the cab to free him.

Dixon was taken by ambulance to the George County Hospital where he received emergency care and then was transferred to the Singing River Hospital in Pascagoula, Mississippi, for further treatment. After several operations and a lengthy rehabilitation period, he returned to work at the Pine Level Station on January 2, 1981, where he continued to work until October 19, 1981. Dixon quit his job when he was diagnosed as having cancer of the prostate, a condition wholly unrelated to the accident. He died from the cancer on November 22, 1982, approximately two and one-half years after the accident.

Before Dixon died, he and his wife, the plaintiff Mary Lou Clark Dixon, brought this personal injury suit against Harvester, and after Dixon's death the action was revived by Mrs. Dixon in her individual capacity and as administratrix of Dixon's estate. ¹ Mrs. Dixon seeks to recover damages against Harvester under the strict liability theory of defective design or the alternative theory of negligent design for Dixon's personal injuries and damages resulting to herself. The case was tried before

Page 579

a jury, which found Harvester liable and awarded Mrs. Dixon actual damages of $2,821,871.64. The district court entered final judgment on the jury verdict and also held that the intervenor, International Paper, was entitled to full reimbursement of the $43,916.79 that it had paid to Dixon as workmen's compensation benefits.

Harvester then filed a motion for judgment notwithstanding the verdict and a new trial. The district court denied Harvester's request for a new trial but granted its motion for judgment notwithstanding the verdict. Mrs. Dixon and Harvester both appeal. International Paper also appeals seeking reimbursement for its workmen's compensation payments to Dixon in the event the jury verdict is reinstated.

II.

The basic facts in this products liability case are not in dispute. The parties agree that Dixon was injured while driving a Harvester-manufactured tractor and that he received severe and painful injuries. The major disputed issue is whether the tractor was defectively designed for strict liability purposes, or was negligently designed. Harvester argues that there was insufficient evidence to support a finding of liability under either of the asserted theories, and therefore the district court properly overturned the jury verdict. Harvester, however, contends that the district court erred in denying its motion for a new trial because: (1) several evidentiary errors were committed; (2) the court and plaintiff's counsel made improper comments in the jury's presence; (3) the damage award was excessive; and (4) the verdict was against the great weight of the evidence. Mrs. Dixon simply contends that she presented substantial evidence to support the jury's finding that the tractor was defectively and negligently designed, that the district court committed no error requiring a new trial, and that the damage award was not excessive. In addressing these contentions, we turn first to the contested evidentiary rulings.

III.

A.

The first contested ruling of the district court concerns the admissibility of the testimony of Mrs. Dixon's expert witness, Stephen Chris, a design engineer and consultant. Chris is a registered professional engineer in California and Maryland and is a member of the Society of Automotive Engineers Committee, an organization involved in crash testing and investigations. He testified that he was familiar with the standards-making processes of professional societies and that he had experience in investigating crane, tractor, and automobile accidents.

The district court accepted Chris, over the objection of Harvester, as an expert in safety and mechanical engineering. In reviewing the evidence on Harvester's motion for judgment notwithstanding the verdict, however, the district court excluded Chris's testimony. The district court held that Chris was not qualified to express an opinion as to the design and safety standards of the TD7C because he "had never participated in any manner in approving, or even checking the design of a crawler tractor ...." Similarly, Harvester argues that Chris was not competent to testify because he lacked the necessary information and experience concerning the TD7C and because his inspection and tests concerning the tractor and materials to improve the tractor were inadequate. The court also held that Chris improperly testified as to the applicability of certain Occupational Safety and Health Administration (OSHA) standards because these standards apply only to employer-employee relationships. ² Finally, the court held that Chris failed to demonstrate how the TD7C could have been changed to make it safer.

Page 580

It is well established that an expert's qualifications depend upon his knowledge, skill, experience, training, or education, and the trial court is afforded the widest possible discretion in deciding whether a witness qualifies as an expert. Robert v. Conti Carriers & Terminals, 692 F.2d 22, 26 n. 8 (5th Cir.1982); Dunn v. Sears, Roebuck & Co., 639 F.2d 1171, 1174 (5th Cir.), modified on other grounds, 645 F.2d 511 (5th Cir.1981); Fed.R.Evid. 702. In exercising this broad discretion the district court did not err in accepting Chris as an expert but erroneously excluded Chris' testimony in rendering judgment notwithstanding the verdict, finding that Chris lacked experience concerning crawler tractors and had not checked or participated in approving the design of the TD7C. To the contrary, Chris had in fact inspected the design of the TD7C. He investigated the control arrangements of the Harvester tractor, examined a set of blueprints of the tractor, and viewed photographs showing the condition of the tractor at the time of the accident. Moreover, an expert is not required to have participated in approving the design of a product before he may testify concerning it. See Lenoir v. C.O. Porter Machinery Co., 672 F.2d 1240, 1244-45 (5th Cir.1982) (expert permitted to testify despite not having seen planer in operation).

We recently addressed this very issue in Grenada Steel Industries v. Alabama Oxygen Co., 695 F.2d 883, 889 (5th Cir.1983). There the defendants offered expert testimony that was primarily based upon post-fire photographs. The plaintiff argued that this testimony "was...