Francis v. Clark Equipment Co.

• Decision Date: 29 April 1993
• Docket Number: No. 92-3318,92-3318
• Parties: , Prod.Liab.Rep. (CCH) P 13,492 Craig FRANCIS, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 545

993 F.2d 545

25 Fed.R.Serv.3d 935, Prod.Liab.Rep. (CCH) P 13,492

Craig FRANCIS, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.

No. 92-3318.

United States Court of Appeals, Sixth Circuit.

Argued March 15, 1993.

Decided April 29, 1993.

Michael Garth Moore, Columbus, OH (argued and briefed), for plaintiff-appellant.

James K. Reuss, Lane, Alton & Horst, Columbus, OH (argued and briefed), for defendant-appellee.

Before: NELSON, Circuit Judge; and PECK and CONTIE, Senior Circuit Judges.

CONTIE, Senior Circuit Judge.

Plaintiff-appellant, ¹ Craig Francis, appeals the district court's grant of summary judgment to defendant-appellee, Clark Equipment Company ("Clark"), in this products liability action for injuries sustained by plaintiff Francis during the operation of a forklift manufactured by defendant Clark.

I.

Plaintiff Craig Francis seeks to recover from defendant Clark for injuries he sustained on December 4, 1983, when a C500 55 forklift, manufactured by defendant Clark in 1976, overturned. Plaintiff Francis was working the swing shift at the Corning Glass Plant in Greenville, Ohio. His responsibilities included crushing glass, handling crushed glass with a pay loader, and operating a forklift. On the night of the accident, plaintiff noticed that the forklift's service brakes were not working properly. He drove the forklift up a ramp to a guard station, intending to proceed to the maintenance shop to seek repairs to the brakes. The guard told plaintiff that the maintenance serviceman, Donald Emerick, had gone home for the night. Plaintiff then turned the forklift around and drove the forklift down an outdoor ramp to the basement of the plant. While on the ramp, plaintiff lost control. The lift truck swerved from the right to the left side of the ramp, made an 180-degree turn to the left, and overturned on its left side. Plaintiff fell out of his seat, and the overhead guard of the truck struck him on his right leg, just above the ankle, nearly severing his foot.

On March 2, 1989, plaintiff filed a complaint in the United States District Court for the Southern District of Ohio. Because defendant was an out-of-state corporation and plaintiff was a resident of Ohio, diversity jurisdiction was proper under 28 U.S.C. § 1332. Trial to a jury before a magistrate commenced on January 8, 1990, on the claim of strict liability in tort. ² Plaintiff asserted two claims in strict liability under Ohio law: (1) that, in the absence of operator restraints, the lift truck, which was subject to lateral overturns, was more dangerous than the ordinary user would expect (the "consumer expectation" theory), and (2) that the forklift's design risks outweighed its utility (the risk-benefit theory).

Midway through the first trial, plaintiff was allowed to abandon the risk-benefit theory of liability after presenting evidence in support of such a theory. Defendant was precluded from cross-examining plaintiff's expert witness, George Bombyk, about his risk-benefit testimony and was not allowed to present rebuttal evidence relating to a risk-benefit theory of liability.

After a six day trial, the jury returned a verdict in favor of plaintiff for $394,000.

Defendant filed post-trial motions for judgment notwithstanding the verdict (JNOV) or for a new trial. On March 13, 1991, the trial court granted defendant's motion for a new trial, but denied its motion for JNOV.

The second trial (Francis II) began on February 24, 1992. At the conclusion of the direct examination of plaintiff's expert witness, Mr. Bombyk, counsel for defendant Clark made a motion under newly amended Federal Rules of Civil Procedure, Rule 50(a) for judgment as a matter of law. Without allowing plaintiff to proffer additional evidence on issues he considered relevant, the magistrate summarily granted defendant's motion. Plaintiff filed a timely appeal.

II.

In the present case, the magistrate granted defendant's motion for a new trial at the conclusion of Francis I, because he believed he erred to the prejudice of defendant by allowing plaintiff to present and then abandon a claim of strict liability under the risk-benefit standard, while precluding defense counsel from presenting any evidence in rebuttal to the risk-benefit claim which had been presented by plaintiff to the jury.

The magistrate stated in his opinion that during trial he had prevented defense counsel from cross-examining Mr. Bombyk, plaintiff's expert witness, on his extensive testimony relating to the risk-benefit issue, because he believed the risk-benefit claim was no longer relevant after plaintiff decided to abandon it. However, after reviewing the transcripts of the trial, the magistrate believed he had erred to the prejudice of defendant because he had permitted the jury to hear an abundance of evidence which went to plaintiff's claim under the risk-benefit theory, but had precluded the jury from the opportunity to hear rebuttal evidence.

On appeal, plaintiff challenges the magistrate's version of Francis I and contends that (1) plaintiff's expert witness, Bombyk, did not testify at great length on matters relating to the risk-benefit issue, (2) that the magistrate's statement that the jury was exposed to extensive technical and opinion testimony related to the risk-benefit theory finds no support in the record, ³ and (3) that the jury had sufficient opportunity to hear evidence which contradicted plaintiff's evidence on the risk-benefit theory. Plaintiff concludes that defendant cannot point to a single significant line of inquiry that was precluded and that the evidence flatly refutes the magistrate's claim of prejudice. We disagree.

A careful review of the record reveals the following. Plaintiff opened his case-in-chief by reading into evidence the depositions of five former employees of defendant Clark--Gawlak, Hastings, Schell, Palen and Entwisle--taken in other cases. The excerpts addressed both the issue of lateral turnover in forklift accidents as well as the existence in the 1960s and 1970s of studies and informal determinations regarding the feasibility of forklift operator restraint systems pertaining to a risk-benefit theory of liability.

Plaintiff then called Mr. George Bombyk as his expert witness. Bombyk testified in his capacity as safety director for various corporations about hazard analysis and accident prevention, postulating his theory that any time a manufacturer can eliminate the risk of a hazard through feasible and economic means through design or safeguarding, it should be undertaken. He stated as an expert in the design of safeguarding systems for machinery and equipment that he had studied the technical publications on this issue for years. He then testified about the technical literature which he said stated that there were enough injuries and fatal accidents to forklift drivers from lateral overturns to indicate that seat belts should be used as operator restraints. He also discussed the reasonable foreseeability of lateral overturn accidents, and the availability of patents for operator restraints to prevent injury in the event of a lateral overturn. He also testified that in his opinion, based on safety engineering probability, it would have been economically feasible to affix a wing-seat, seat-belt system to the design of the C500 55 Clark forklift in 1976 that would have been effective in eliminating serious injury or death.

After the conclusion of Bombyk's testimony and shortly after defense counsel began his cross-examination of Mr. Bombyk, the magistrate decided that it would allow defense counsel to introduce into evidence the American National Standard Institute (ANSI) B-56.1 industry standards, which did not require (and still do not require) seat belts or other operator restraints on forklifts. At this point, plaintiff's counsel informed the court that plaintiff wished to abandon his claim under the risk-benefit theory of liability. In response, counsel for defendant stated:

Your honor, especially in the procedural posture we find ourselves in the middle of cross-examination, it seems a bit unfair, I admit, a little premature. If plaintiff intends to dismiss a claim on a particular theory at the end of his case, I suppose he has the prerogative to do that, but to have all the damaging testimony coming up on direct examination under risk benefit and have the defendant actually in the middle of cross-examination....

The trial court permitted plaintiff to abandon the claim under the risk-benefit theory of liability and instructed the jury as follows:

Now, you've heard some testimony from Mr. Bombyk that relates to that theory which I request that you disregard. In order to save time we are not going to have further cross-examination by the defendant on that theory because it's out of the case, but I don't want you to be confused and believe that it's still relevant. We'll give you thorough instructions on that at the conclusion of the case, but I don't want you to draw any inference from the fact that you won't hear cross-examination about it just now. At this point, it's out of the case....

Because the magistrate believed that evidence pertaining to a risk-benefit theory of liability was no longer relevant, he precluded defendant from defending against the criticism that it had ignored an "excessive preventable danger" under a risk-benefit analysis by neglecting to design a technically feasible safer product with an operator restraint system. After specifically instructing defendant Clark to limit questions to the consumer expectation theory of liability, the court sustained numerous objections in defendant's attempt to cross-examine Mr. Bombyk. ⁴

In addition, plaintiff successfully limited the scope of the direct testimony of the expert witness for the defense, Mr. Entwisle, the former director of technical operations at Clark. Mr. Entwisle was not allowed to testify that California OSHA does not...