Ellis v. K-Lan Co., Inc.

• Decision Date: 14 January 1983
• Docket Number: No. 81-1614,K-LAN,81-1614
• Citation: 695 F.2d 157
• Parties: 12 Fed. R. Evid. Serv. 157 David C. ELLIS, next friend of Jacob Ray Ellis, Plaintiff-Appellee, v.CO., INC., Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 157

695 F.2d 157

12 Fed. R. Evid. Serv. 157

David C. ELLIS, next friend of Jacob Ray Ellis, Plaintiff-Appellee, v. K-LAN CO., INC., Defendant-Appellant.

No. 81-1614

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 14, 1983.

Moser & Stubblefield, Lon Moser, Amarillo, Tex., for defendant-appellant.

Legg & Baskin, Reagan H. Legg, Midland, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal in a diversity action from a judgment for damages rendered in favor of appellee against appellant for personal injuries sustained by appellee's two-year-old child when the child opened the cap on a container of acid-based drain declogger, spilled the contents on himself, and sustained chemical burns to his body. The primary questions are (1) whether the district court abused its discretion in allowing appellee's expert witness to testify as to his opinion respecting the defectiveness of the container cap, and (2) whether the district court erred in refusing to submit instructions to the jury regarding the alleged misconduct of the child's mother. We find no reversible error in the district court's rulings and affirm its judgment.

I.

On April 19, 1977, Mrs. Vera Ellis ("Mrs. Ellis"), a resident of Jal, New Mexico, purchased, among other things, a bottle of Master Plumber from the Thriftway Grocery Store in Kermit, Texas. Master Plumber is an acid-based drain declogger manufactured by appellant K-Lan Company, Inc. ("K-Lan") of Amarillo, Texas.

When Mrs. Ellis returned home from Kermit, she took her groceries, which were packed in four boxes, from her car to her kitchen table. Before she unloaded the groceries, her husband, appellee David Ellis ("Mr. Ellis"), called to tell her that her mother, a resident of Fort Worth, Texas, was seriously ill. Mrs. Ellis called the Fort Worth hospital where her mother was confined and learned that she had died. Mrs. Ellis and her two-year-old son, Jacob, then drove to her husband's place of employment, picked him up, and returned home.

After returning home, Mrs. Ellis went to her bedroom to pack for their trip to Fort Worth for her mother's funeral. Mr. Ellis began to unpack the groceries, which were still on the kitchen table. Jacob got on a chair beside the kitchen table to help his father unpack them. About that time, Mr. and Mrs. Ellis's relatives began calling them on the telephone. A telephone was located on the kitchen wall, about three- to five-feet from the kitchen table. While Mr. Ellis was talking on this telephone, Mrs. Ellis came back into the kitchen, where she saw Jacob on the floor with the capped bottle of Master Plumber in his hands walking toward her. ¹ Mrs. Ellis told Jacob to put the Master Plumber back on the kitchen table and to leave it alone. Jacob did as he was told. Mrs. Ellis then returned to her bedroom to continue packing for their trip.

As Mr. Ellis was talking on the telephone, with his back to the kitchen table, he heard Jacob fall and hit the floor. Jacob was lying on the floor in a puddle of Master Plumber. The bottle of Master Plumber was also on the floor, lying on its side. The cap to the bottle, however, was still on the kitchen table. Mr. Ellis set the bottle upright, grabbed Jacob, and took him to the bathroom where he ran water over him. Mr. and Mrs. Ellis then took Jacob to the hospital where he was diagnosed as suffering from second- and third-degree chemical burns over his face, neck, arms, and legs, which were caused by the exposure of his skin to the Master Plumber.

Mr. Ellis, as next friend of Jacob, sued K-Lan in federal district court based on theories of strict liability, breach of warranty, and negligence. ² The case, however, was submitted to the jury on a strict liability theory only. In response to special interrogatories, the jury found (1) that the container for the Master Plumber was defectively designed; that the defective design was a producing cause of Jacob's injuries; (2) that the container cap was defectively manufactured; that this defect was a producing cause of Jacob's injuries; (3) that K-Lan failed to adequately warn the users of Master Plumber of the dangers associated with it; that this failure rendered the product defective; and that this defect was a producing cause of the injury. The jury awarded Jacob $24,500 for pain and suffering, and awarded Mr. Ellis $12,005.25 for past and future medical expenses for the treatment of Jacob's injuries. The district court rendered judgment on the jury's verdict.

II.

K-Lan's first contention is that the district court erred in allowing appellee's expert witness to give his opinion regarding a defect in the container cap. K-Lan argues that the expert witness, Dr. Marshall Box, was disqualified from testifying because he was unfamiliar with the definition of "special packaging" contained in the Special Packaging of Household Substances for Protection of Children Act, 15 U.S.C. Secs. 1471-76; 16 C.F.R. 1700.1, et seq.

The evidence shows that Dr. Box was a retired dean of occupational-technical education at Midland College. He had taught industrial safety and mechanical engineering for many years. Dr. Box testified that he was familiar with safety procedures and methods for containers, closures, and caps for different products. Dr. Box further testified that the container cap on the Master Plumber was defective, and that the warning on the container was inadequate. When asked, on voir dire, by K-Lan's counsel to give a definition of a child-proof cap, Dr. Box responded by saying, "I doubt if I could give you a definition. I can give you an idea of what I think the cap should be, but ...." K-Lan's counsel then made the following objection:

"My objection, Your Honor, is this: That the law defines the definition of a child-proof cap and this witness' testimony is an analogous situation to, if you had a real estate appraiser, he has to know the meaning of market value. He can't have his own meaning of market value, he has to know the meaning that the law says market value means.

"Now, I'm going to object to this witness' testimony about what he thinks a child-proof cap is, unless his definition is what the law says it is.

"That's what I'm saying, Your Honor, and I think that he ... unless he has a definition that coincides with the law, like market value coincides with what the law is, then we shouldn't hear his ideas about what something ... what a child-proof cap is that flies in the teeth of what the law is."

The district court overruled the objection.

On cross-examination, the following exchange took place between K-Lan's counsel and Dr. Box:

"Q. Do you think that the law requires something to be made completely safe for the child?

"A. I don't think it does. I believe it says for anything under ... anyone under five years old ... for a child under five years, it should be safe for those. I don't think it says completely safe.

"Q. Let me read you the definition from the law about that ...

"A. Okay.

"Q. ... and see if this agrees with your ... what you think it is. But you still don't have a definition yourself, do you?

"A. Well, that would be as close a definition as I would have, is safe for a child under five years old, if that's the kind of definition you wanted, Mr. Moser.

"Q. Well, let me read this to you and see if this coincides with your definition.

" 'The term "special packaging" means packaging that is designed or constructed to be significantly difficult for children under five years of age to open or obtain a toxic or harmful amount of the substance contained therein within a reasonable time, and not difficult for normal adults to use properly, but does not mean packaging which all such children cannot open or obtain a toxic or harmful amount within a reasonable amount of time.'

"Is that your definition?

"A. Well, it would be close, yes, sir, I believe."

This testimony shows that Dr. Box's definition of a child-proof cap corresponded somewhat with the definition of "special packaging" set forth in the statute. An expert witness, however, is not disqualified from testifying about the defectiveness of a product merely because he is unfamiliar with definitions or standards set by statutes or regulations that concern the product. Rule 702, Fed.R.Evid., provides that a witness who seeks to testify as an expert must first be found qualified as such "by knowledge, skill, experience, training, or education." The failure of the expert to be familiar with a statutory definition or standard affects his credibility, not his qualifications to testify. Cf. N.V. Maatschappij Voor Industriele Waarden v. A.O. Smith Corp., 590 F.2d 415, 419 (2d Cir.1978) ("... proper focus of expert testimony is technical, rather than legal ..."). By cross-examination, K-Lan's counsel exposed Dr. Box's unfamiliarity with the "special packaging" statute to the jury. The jury, however, chose to believe his testimony over that of K-Lan's expert witness, who testified that the product was not defective.

Moreover, whether or not K-Lan was in compliance with the "special packaging" statute or with the other federal safety statutes referred to by K-Lan's president in his testimony, ³ while plainly relevant, would not have been conclusive of its product's defectiveness or its fitness. ⁴ Bristol- Myers Co. v. Gonzales, 548 S.W.2d 416, 423 (Tex.Civ.App.--Corpus Christi 1976), rev'd on other grounds, 561 S.W.2d 801, 804 (Tex.1978); Rumsey v. Freeway Manor Minimax, 423 S.W.2d 387, 394 (Tex.Civ.App.--Houston [1st Dist.] 1968, no writ); Simien v. S.S. Kresge Company, 566 F.2d 551, 557 (5th Cir.1978); Howard v. McCrory Corp., 601 F.2d 133, 138 (4th Cir.1979); Poches v. J.J. Newberry Company, 549 F.2d 1166, 1168 (8th Cir.1977); 1 Frumer & Friedman,Products Liability Sec. 5.04; 2 Frumer & Friedman, Sec. 16A[i]. ⁵

Mindful...