Drabik v. Stanley-Bostitch, Inc.

• Citation: 796 F. Supp. 1271
• Decision Date: 18 August 1992
• Docket Number: No. 90-0322-CV-W-6.,90-0322-CV-W-6.
• Parties: Leonard DRABIK, Plaintiff, v. STANLEY-BOSTITCH, INC. and Bostitch, a Division of Textron, Inc., Defendants.
• Court: U.S. District Court — Western District of Missouri

796 F. Supp. 1271

Leonard DRABIK, Plaintiff, v. STANLEY-BOSTITCH, INC. and Bostitch, a Division of Textron, Inc., Defendants.

No. 90-0322-CV-W-6.

United States District Court, W.D. Missouri, W.D.

August 18, 1992.

Paul L. Redfearn, Redfearn & Brown, P.C., Kansas City, Mo., for plaintiff.

David R. Buchanan, Brown & James, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

SACHS, Chief Judge.

For reasons stated, the court will deny the post-trial motion of defendant Bostitch, a division of Textron, Inc.

Plaintiff brings this product liability case because of injury suffered when a pneumatic nailer (often called a nail-gun) fired a nail into his head, causing brain damage, while plaintiff was a member of a two-man carpentry crew. Plaintiff's companion on the job, using the nailer in a manner common in the trade, was holding the equipment with the trigger depressed so the nailer would automatically fire on contact. An efficient and quick method of nailing is to use pneumatic nailers so that nailing can occur in a bumping or bouncing manner. Unfortunately, plaintiff had bent down during a pause in the nailing operation and raised his head into an area where his companion happened to be holding the nailer, ready to fire.

Another, somewhat slower and slightly more strenuous, method of pneumatic nailing uses a "sequential trip," in which the trigger is ineffective unless prior contact has been made with the object to be nailed. This requires pressing the trigger each time a nail is driven. Defendant Bostitch had developed and patented a sequential trip nailer in the early 1970s, but reverted to primary manufacture and sale of the contact trip nailer, over objection by its safety engineer, Ed Colechia.

An instruction manual supplied with the contact trip nailer in 1984 recommends against holding the trigger depressed while "carrying" the nailer. There was evidence, however, that the location of the trigger invites carrying the nailer with the trigger depressed, and that the instruction manual is generally unavailable or disregarded (as defendant knew was likely). Subsequent models contain warnings against depressing the trigger "when not driving fastener." The recommended use would be identical to that used in the sequential trip nailer. If so used there would be no advantage in using the unguarded nailer rather than the sequential trip nailer; therefore, industry popularity of the contact trip nailer suggests anticipated disregard of the warning label. There was testimony from defendant's engineer acknowledging common disregard of such instructions.

Personal injuries like those suffered by plaintiff occurred before and after the manufacture in 1984 of the nailer in question. Defendant continues to advocate use of the contact trip nailer.

Plaintiff's physical recovery from his injury has been very satisfactory, according to most of the evidence. There was some testimony, however, that plaintiff's thought processes have been badly and permanently affected, that he becomes confused and has loss of memory and seizures from brain damage, and that his carpentry work is restricted by inability to work at heights. An adverse personality change is also claimed, evidenced by frequent anger and signs of frustration. There was evidence of economic loss, based on a calculation of the discounted earnings of the average disabled person.

The jury awarded $1.5 million in actual damages and $7.5 million in punitive damages.

Defendant Bostitch seeks a new trial, or judgment notwithstanding the verdict.¹ The punitive damage submissibility issue is the most strenuously controverted point, no doubt fueled in part by my expression during trial that I was doubtful about the submissibility of such damages in this case under current Missouri law.²

I.

I am somewhat troubled by the size of the actual damage award. My reaction to the evidence is less credulous than that of the jury. The matter is not greatly contested by defendant, however, and my rule of deference is almost as great as in FELA cases, where I have declined to interfere with a verdict that seemed overly generous. Kelly v. Illinois Central Gulf Railroad Co., 552 F.Supp. 399 (W.D.Mo.1982).

II.

Apart from the public policy issues that continue to trouble me, I have concluded that there is an evidentiary basis for punitive damages, and that an award of $7.5 million is not inappropriate, when designed to "deter" the entire pneumatic nailer industry from continuing to produce and distribute contact trip nailers.³

Defendant's argument may be summarized as follows: (1) the 1984 instruction manual warning and the warning label used after 1984, even though inadequate to change industry practice, undermines any submission of an issue of "complete" indifference to user safety, or "conscious disregard" of safety factors; (2) following industry standards protects against a punitive damage award; (3) the offering of a safer product as an option protects against a punitive damage award; and (4) the evidence does not fairly allow a finding of outrageous conduct.

The single most contested issue relates to the instruction manual as a defense. Defendant relies on Judge Blackmar's statement, for the Missouri Supreme Court, that mere "inadequate communication cannot be equated to conscious disregard." Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 398 (Mo.1987). The Missouri court has also advised that "punitive damages may not be awarded even for exaggerated negligence" and "neither inadvertence nor bungling can be equated to `complete indifference.'" 723 S.W.2d at 397.

The parties have cited authorities arguably pointing both ways on whether plainly ineffective warnings can sometimes serve as a defense to punitive damages.⁴ Defendant fails, moreover, to read Bhagvandoss in context. Unlike the present case, "no expert even intimated that the appellant should cease sales." 723 S.W.2d at 398. The Missouri Supreme Court concluded that punitive damages could not be awarded for "not recalling the product simply because of the initial reports...." Id. Where, as in this case, the product is claimed to be so defective that production and distribution should be stopped, the soundness of warnings becomes immaterial. In the present case it is contended that contact trip nailers are so dangerous that they must be banned, by jury action if not otherwise, and that marketing the product is itself outrageous. The punitive damage issue does not turn on a quibble about communications.

The other affirmative claims of defendant regarding punitive damages are not controlling, even though compliance with industry standards and offering safer options may have evidentiary value. See, Lane v. Amsted Industries, Inc., 779 S.W.2d 754, 759 (Mo.App.1989); Instruction K, requested by defendant. It is conceivable that in some cases, where the proof of outrageous conduct is thin or arguably nonexistent, such defenses may provide the evidentiary straws that avoid submissibility. I find no basis for giving this proof overriding effect in the present case.

It would not be productive to try to piece together each bit of evidence that in my judgment authorized the jury in this case to be outraged. The briefing is sufficient, together with my recollection of the proof, to conclude that defendant, and the industry, have been producing and selling contact trip nailers, well knowing that, as generally used, there will be an occasional personal injury of a grievous nature, including nails driven into the heads of carpenters, because of the way the nailers are designed. In my judgment the jury was authorized to find this outrageous, even though a rare event, and even though the equipment is quite useful and injuries generally occur when there is some inadvertence on the part of nailer handlers and their companions.

Defendant's engineer, Richard Paul, had testified to engineering practice to avoid safety hazards, even though injuries are practically nonexistent — "one in a million." This record made it very difficult to argue what I conceive to be the best defense, the infrequency of injury when weighed against the utility of speedy, easy operation, invariably safe when reasonable precautions are taken.

There are cases where judges may insist on interposing their own opinions when jurors have acted irrationally, carried away by sympathy or a uniquely appealing injury. In this case, however, although there is some merit in the contention that the jury should have treated occasional injuries as a necessary cost of industrial efficiency, I do not see a duty to strip the jury of its powers. On the contrary, there are special factors here, including the apparently cynical use of the warning label⁵ and the commercial managers' disregard of safety advice by Textron's engineering staff, that not only authorize recovery but also a punitive award in an amount likely to have industry impact.⁶

III.

Submissibility of design defect is implicit in my punitive damage analysis. Plaintiff's argument seems to advance a version of assumption of the risk (in his consumer expectation theory) and the related concept of open and obvious danger. We can all agree with plaintiff that one does not have to be an Einstein to understand what could go wrong. Neither Daniels, who held the nailer, nor plaintiff had an...