Futrell v. Scott Truck and Tractor Co. of Louisiana, Inc.

• Decision Date: 08 December 1993
• Docket Number: No. 93-88,93-88
• Citation: 629 So.2d 449
• Parties: David FUTRELL, Plaintiff-Appellee, v. SCOTT TRUCK AND TRACTOR COMPANY OF LOUISIANA, INC., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 449

629 So.2d 449

David FUTRELL, Plaintiff-Appellee, v. SCOTT TRUCK AND TRACTOR COMPANY OF LOUISIANA, INC., et al Defendants-Appellants.

No. 93-88.

Court of Appeal of Louisiana Third Circuit.

Dec. 8, 1993.

Rehearing Denied Jan. 5, 1994.

Christopher J. Roy, Christopher J. Roy, Jr., Alexandria, for David Futrell.

Mary M. Hamilton and William M. Bass, Lafayette, for Omark Industries.

Before YELVERTON, KNOLL and THIBODEAUX, JJ.

KNOLL, Judge.

This is a products liability case involving the collapse of a 210-B log loader while it was in operation, and designed and manufactured by Omark Industries, Inc. A jury found the 210-B log loader defective in design and manufacture, that Omark was totally at fault in causing the accident, and awarded David Futrell, the injured worker, damages in the amount of $1,245,000.

At a rule to show cause subsequent to the jury trial, the trial court fixed Futrell's past medical expenses at $41,958.50 and amended an agreement between Futrell and Omark on the accrual of judicial interest.

Omark appeals, contending that: (1) the trial court abused its discretion in prohibiting its expert metallurgical engineer, Tom Proft, to testify; (2) the trial court abused its discretion in not allowing Omark to disclose to the jury all factual material about the expert testimony of Maxwell Dow; (3) the trial court's jury instructions failed to fairly and reasonably point up all issues raised in the litigation and did not provide correct legal principles applicable to the case; (4) the jury's allocation of fault was clearly erroneous; (5) the jury's damage award of $1,245,000 was an abuse of discretion; (6) the trial court's award of future medical expenses was clearly wrong; and, (7) the trial court erred in varying the award of judicial interest from that stated in the motion for continuance Futrell filed on February 21, 1989.

FACTS

Futrell was injured on September 17, 1985, while he operated the loader in the course of his employment with Hunt Plywood Company, Inc. (Hunt). At the time of the accident, Scott Truck and Tractor Company of Louisiana, Inc. (Scott) owned the loader and had leased it to Hunt approximately one month prior to the accident.

The log loader has an enclosed cab for the operator and a boom assembly mounted on a turntable. Cap screws and bolts are used to attach the turntable to the bearing assembly and allows 360 degree rotation. There is an outer circular ring of 30 cap screws and an inner ring of 30 bolts. The bearing assembly is mounted on a subframe and the entire unit is mounted on a truck manufactured by others. It is undisputed that the accident was caused by inner ring bolt fatigue and failure. On the date of the accident, the fatigued inner ring bolts failed while the loader was lifting a log, causing the turntable to separate from the bearing assembly and fall over. Futrell was injured when he was thrown around in the cab. For reference, we have appended P-8 to this opinion which is a photocopy of a diagram of the loader at issue.

Initially, Dr. John Weiss, an orthopedist, treated Futrell conservatively for an injured lower back. Ultimately, Futrell underwent chemonucleolysis and a partial laminectomy performed by Dr. Weiss at the L4-5 level. Because Futrell still suffered significant pain after these surgeries, Dr. John Jackson, a neurosurgeon, performed a lumbar fusion at the L4-5 level. As of the time of trial, Futrell had not been able to return to work.

Futrell first sued Scott and Omark and Scott's insurer. Lumbermen's Mutual Alliance (Lumbermen's), Hunt's worker's compensation carrier, intervened, seeking reimbursement of medical expenses and worker's compensation benefits paid.

Before trial, Futrell settled with Scott and Hunt and their respective insurers. As a result of the settlement, Futrell dismissed his claims against Scott, Hunt, and their insurers, and Lumbermen's and Hunt dismissed their claims against Omark. Futrell specifically reserved his claims against Omark.

Omark brings this appeal.

EXCLUSION OF EXPERT WITNESS TESTIMONY

Omark contends that the trial court erred in its ruling that its expert metallurgist, Tom Proft, could not testify. It argues that the trial court incorrectly concluded that Omark failed to properly amend its pre-trial memorandum to list Proft as a witness, and that Futrell was denied an opportunity to depose Proft.

The first objection to the trial court's ruling is Omark's contention that it properly complied with the pre-trial procedure. For reasons which follow, we find that Omark complied with the pre-trial procedure and that the trial court's ruling was manifestly erroneous.

Inherent in the theory of pre-trial procedure are the orderly disposition of each case and of the entire docket and the avoidance of surprise. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972). These are sufficient reasons for allowing the trial judge to require adherence to the pre-trial order in the conduct of the action. Id.

Our review of the record shows that the litigants filed numerous pre-trial memoranda which stated facts and applicable law and detailed the witnesses each wished to call. However, at no time does the record establish that the trial court held a pre-trial conference in accordance with LSA-C.C.P. Art. 1551 or that it issued a pre-trial order. Accordingly, we do not find that we are presented with an issue of whether Omark complied with a formal pre-trial order of the trial court. Instead, we are presented with a general question of whether the trial court abused its broad discretion in the exclusion of witness testimony.

The trial judge has discretion in conducting a trial. Combs v. Hartford Ins. Co., 544 So.2d 583 (La.App. 1st Cir.1989), writ denied, 550 So.2d 630 (La.1989). The trial judge is required to conduct a trial in an orderly, expeditious manner and to control the proceedings so that justice is done. LSA-C.C.P. Art. 1631. The trial judge's discretion includes the determination of the admissibility of a witness's testimony. Id.

In the case sub judice, the record shows that Omark first listed Tom Proft as a witness on its pre-trial memorandum on February 25, 1991; it again appears on an amended pre-trial memorandum dated January 8, 1992. Trial of this case began on January 14, 1992. In addition, counsel for Omark sent counsel for Futrell a letter on December 6, 1991, which outlined general information Proft had given about the bolts in question. The letter further stated, "In the event that you need any additional information from Tom Proft, let me know. I will go ahead and list him as a witness and make arrangements for him to come to trial ... In the event that you want to take Tom Proft's deposition, let me know and we can also schedule that." Thus, it is clear that Futrell knew of Proft well in advance of trial; first, in a pre-trial memorandum and then later by letter. Based on this information, we find that the trial court erred in excluding Proft's testimony on these grounds.

Nevertheless, after carefully reviewing the record, we find that the exclusion of Proft's testimony was harmless error.

The jury heard the testimony of four experts: William Koon, Omark's division chief engineer for the design and development of the 210-B log loader; Maxwell Dow, a mechanical engineer with a subspecialty in the forensic application of mechanical engineering; Theodore Coleman, Omark's design engineer; and, Dr. Leighton Sissom, a mechanical engineer. Only Dr. Sissom testified on behalf of Futrell.

The proffered testimony of Proft shows that he would have testified as follows: (1) He had previously been involved in the analysis of hundreds of bolt failures and had examined 28 of the 30 inner ring bolts from the accident loader under both conventional and electron microscopes; (2) Eight inner ring bolts had progressively cracked by fatigue prior to the accident, a result of improper maintenance; (3) The fatigue cracking was a result of failure to retorque the inner ring bolts in accordance with instructions in the Prentice Owners Manual; (4) The loss of torque could not have been prevented by the use of lock nuts, dowel pins or other thread locking mechanisms; (5) The heads of the failed inner ring bolts showed that they had cracked and loosened such that they were dragging across the sub-frame of the loader for an extended period of time prior to the accident; (6) The popping noise heard by Futrell prior to the accident was related to the loose inner ring bolts; (7) The lack of outer ring capscrew failures on the loader indicated that it was not one of the units that had an uneven mounting ring; and, (8) If Scott service personnel had checked the inner ring bolts when the loader was still in Scott's possession, or on the two occasions that they were called out by Hunt to repair the loader, they would have located the loose inner ring bolts that were broken by fatigue, rectified the condition and prevented the accident.

After carefully reviewing the testimony of the various experts, we find that they all basically agreed that the accident occurred when inner ring bolts experienced fatigue failure and, in turn, precipitated the accident when increased stress on the remainder of the non-fatigued bolts caused rapid failure of them. The disagreement between Futrell's expert and Omark's experts centered on the cause of the inner bolt failure. Omark's contention was that either Scott or Hunt failed to inspect and maintain the loader. Futrell's contention was that the loader was defective in design and manufacture.

If we compare Proft's proffered testimony on the essential issue of causation to the testimony presented to the jury, we find that it does not interject any substantive opinion which differed from that already in the record. Even though he would have been the only metallurgist to testify, we do not find that this type of testimony was essential to Omark's defense. Accordingly, we find...