Elledge v. Bacharach Instrument Co.
| Decision Date | 25 August 1992 |
| Docket Number | 91-1952,Nos. 91-1931,s. 91-1931 |
| Citation | 974 F.2d 1338 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Donald ELLEDGE; Donald Elledge, Jr. and Ashley Elledge, by next friend Donald Elledge, Plaintiffs-Appellants, v. BACHARACH INSTRUMENT CO., Defendant-Appellee. Sheryl WOODS, Personal Representative for estate of Leanna Woods, Plaintiff-Appellant, v. BACHARACH INSTRUMENT CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KENNEDY, DAVID A. NELSON and BATCHELDER, Circuit Judges.
Plaintiffs-appellants--Donald Elledge and his children Donald Jr. and Ashley Elledge and Sheryl Woods, personal representative for the estate of Leanna Woods--appeal several issues in this products liability suit arising out of a jury verdict in favor of defendant, Bacharach Instrument Co. For the reasons set out below, we affirm the district court's rulings.
The facts that give rise to this products liability suit are extremely sad. On October 5, 1987, Donald Elledge and Leanna Woods were assigned by their employer, BASF, to clean chemical residue out of a tank used to manufacture paints. While Woods was cleaning inside the tank, Elledge was outside the tank as the safety person. The tank ignited and then exploded. Woods was killed and Elledge was severely burned while trying to pull Woods from the tank.
The fire investigator, Terry Barker, determined that the fire was caused by combustible vapors within the tank. He reported that the fire was caused either by a steel pinching bar striking against another piece of steel or by the separation of a bracing bracket within the tank causing a spark.
Before Woods and Elledge entered the tank, the air in the tank was tested with defendant Bacharach's GPK gas detection instrument to determine the presence of combustible vapors. If any amount of combustible vapors registered on the meter, the workers were not to go into the tank. Fred Bryant, BASF's safety coordinator, had trained Catherine Lynem, the new safety director, on operation of Bacharach's meter, including checking the meter against a known gas prior to each use of the meter; checking the air in the tank at different levels and locations; stirring the substances in the tank to assure that trapped vapors were released; and testing the air periodically throughout the cleaning. Lynem tested the tank the week before the accident and on the morning of the accident using the Bacharach meter. During the reading performed the morning of the accident, the meter read zero-zero, indicating no oxygen and no combustibles present. This would signify that either the meter was not functioning or that the tank was unsafe because it lacked oxygen. The parties' stipulations and the evidence presented at trial indicated that Lynem did not calibrate the meter against a known gas that morning; did not stir the substance in the tank; did not test the air at different locations in the tank; and did not re-check the tank after work began.
BASF had Catherine Lynem, her husband William Lynem and Gary Krynock, the divisional safety director, investigate the cause of the fire. The morning after the accident, they tested the tank using the Bacharach meter against another meter. William Lynem testified that the other meter obtained readings, while the Bacharach instrument did not.
On June 23, 1989, Oscar Singleton, a product application specialist for Bacharach, conducted an inspection of the gas meter that BASF had used. He determined that the tubes inside the meter were crossed. Plaintiff Elledge contends that the tubes were crossed by defendant when the meter was sent back to Bacharach for maintenance. Elledge argues that a sticker on the meter stating "calibrated by JC, date 4-87" indicates that Bacharach's John Conroy had calibrated the meter five months before the accident. Defendant Bacharach claims that the tubes were crossed by BASF employees while changing parts or that BASF employees tampered with the meter after the accident.
Plaintiff Donald Elledge and his children filed this diversity action against Bacharach Instrument Co., alleging negligent design, breach of duty to warn, negligent maintenance, and breach of express and implied warranties. The case was consolidated with a diversity action filed by Sheryl Woods as personal representative for the estate of her mother, Leanna Woods. The trial court directed a verdict for Bacharach on plaintiff Elledge's negligent maintenance claim and refused to instruct the jury on the breach of express warranty claim. The case went to the jury on the claims of negligent design of the meter and manual, and breach of the duty to warn. At trial, plaintiffs' experts testified that defendant should have implemented product design changes and put a label or checklist of instructions on the meter itself. Defendant's experts testified that the product design changes also would be hazardous and that checklists were ineffective. The jury returned a verdict in favor of defendant, finding no negligence on its part. Plaintiffs filed a motion for JNOV or a new trial, which the trial court denied on July 11, 1991. The plaintiffs now appeal.
Plaintiffs first argue that the trial court erred in admitting evidence of an absence of prior accidents with this particular meter manufactured by Bacharach. Before trial, the court granted plaintiffs' motion in limine precluding defendant from introducing evidence, for the purpose of proving the absence of fault, that defendant's instruments had no previous history of accidents. It based its ruling on Kurczewski v. Michigan State Highway Comm'n., 112 Mich.App. 544, 316 N.W.2d 484, 487 (1982), and Grubaugh v. City of St. Johns, 82 Mich.App. 282, 266 N.W.2d 791, 794 (1978), which held that evidence of the absence of accidents could not be used to prove an absence of negligence. At trial, however, the court admitted this evidence after finding that counsel for Woods had opened the door to this evidence by eliciting testimony on cross-examination about the absence of a label or instructions on the face of the meter.
We affirm the ruling of the district court, but on other grounds. Although we believe that the trial court erred in applying the "opening the door" doctrine, the error was harmless because the evidence was admissible even without application of the doctrine. Fed.R.Civ.P. 61.
Because this case is premised on diversity jurisdiction, Michigan law governs substantive matters, while federal law governs procedural issues. FL Aerospace v. Aetna Cas. & Sur. Co., 897 F.2d 214, 217 (6th Cir.), cert. denied, 111 S.Ct. 284 (1990). In a diversity action, the Federal Rules of Evidence govern the admissibility of evidence when these rules cover the disputed issues. Bryan v. Emerson Elec. Co. Inc., 856 F.2d 192 (6th Cir.1988) (unpublished per curiam) (text in Westlaw); Hanna v. Plumer, 380 U.S. 460, 464-74, 85 S.Ct. 1136, 1140-45 (1965). Here, however, the Federal Rules do not directly address negative evidence of accidents.
Under the rule of curative admissibility or the "opening the door" doctrine, the introduction of inadmissible evidence by one party opens the door for an opponent to introduce evidence on the same issue to rebut any false impression that was given. United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541 (1989); McCormick on Evidence, § 57, at 146-49 (). The doctrine does not permit the introduction of evidence that relates to a different issue or is irrelevant to the evidence previously admitted. Whitworth, 856 F.2d at 1285. This Court has stated that the doctrine " 'is one dangerously prone to overuse.' " United States v. Winston, 447 F.2d 1236, 1240 (6th Cir.1971) (citing Crawford v. United States, 198 F.2d 976, 979 (D.C.Cir.1952)). "Introduction of otherwise inadmissible evidence under shield of this doctrine is permitted 'only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.' " Id. (citing California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir.1956)).
The doctrine of curative admissibility (or the "opening the door" doctrine) did not apply in this situation because plaintiffs did not introduce evidence that was inadmissible or irrelevant. Plaintiffs' counsel merely asked why defendant had not met the 1972 industry standards developed by Factory Mutual and why it did not provide warning labels on the meter. Therefore, there was no door opened through which defendant could enter to introduce the evidence about the absence of prior accidents.
We find, then, that if there was error, it arose because the district court should have denied from the outset plaintiffs' motion in limine and admitted the evidence of an absence of prior accidents for the purposes for which defendant introduced it--to show defendant's lack of knowledge of any defect and lack of notice of the need for labelling. That error was harmless because the trial court ultimately admitted the evidence anyway, although for the wrong reason. Federal decisions dealing with evidence or lack of evidence of past accidents are "in a state of hopeless disorder" because the negative evidence is offered for so many different purposes. Koloda v. General Motors Parts Div., 716 F.2d 373, 375 (6th Cir.1983). Michigan law is similarly confusing. The two Michigan cases cited by the trial court, although not products liability cases, clearly indicate that evidence of the absence of prior accidents is not admissible to prove the absence...
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