Gander v. FMC Corp.

• Decision Date: 22 February 1990
• Docket Number: No. 88-2823,88-2823
• Citation: 892 F.2d 1373
• Parties: Todd GANDER, Appellee, v. FMC CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1373

892 F.2d 1373

Todd GANDER, Appellee, v. FMC CORPORATION, Appellant.

No. 88-2823.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1989.

Decided Jan. 12, 1990.

Rehearing and Rehearing En Banc Denied Feb. 22, 1990.

Bart C. Sullivan, St. Louis, Mo., for appellant.

James E. Hullverson, Jr., St. Louis, Mo., for appellee.

Before ARNOLD and BEAM, Circuit Judges, and HENLEY, Senior Circuit Judge.

BEAM, Circuit Judge.

FMC Corporation appeals a judgment in favor of Todd Gander for $2,000,000, entered on July 13, 1988, following a jury trial. Gander's theories of recovery for personal injuries sounded in both strict liability in tort and negligence, and the jury found in favor of Gander on both claims. The jury also assessed Gander's comparative fault on the negligence claim at 90%. On appeal, FMC argues that the verdict form was confusing and misstated the law and that the district court should have allowed FMC to cross-examine Gander's witnesses about the effects of income tax assessments on Gander's lost income. While we have some reservations about the verdict form, we affirm.

I. BACKGROUND

Gander lost his right arm at the elbow on February 23, 1985, while working for Anheuser-Busch in St. Louis. Gander worked as a coal conveyor operator, and made $34,560 plus benefits in 1984. At the time of trial in 1986, the average pay for coal conveyor operators was $47,891 plus benefits.

As a coal conveyor operator, Gander's work entailed shepherding coal from its entry into the plant to the boilers where it was converted to electrical energy. The conveyor belts which transported the coal frequently would ride to one side of their drive drums as the result of coal dust accumulating on the drums. When the conveyor belt rode to one side, it would often climb the wall, causing coal spills.

On February 23, 1985, Gander was working near a head pulley drum which had become clogged with coal, and which was partly responsible for a major coal spill. Gander had been taught to clean the drum with a fox tail brush, without shutting off the system. Gander thus proceeded to clean the drum with the fox tail brush, but the rolling drum caught the fox tail brush, pulling Gander's forearm into the device before he was able to let go. The rolling drum literally lifted Gander off the ground, and his arm was severed at the elbow when it came into contact with a shear guard. Fellow workers took Gander to Barnes Hospital where his arm was reattached.

Although Gander's surgery was successful to the extent that he still has his right arm, he testified at trial that the arm is essentially useless. "It's just like an ornament hanging on, it's no good." Trial Transcript, vol. 1, at 122. He has only limited movement in his shoulder and must wear a brace to keep his wrist straight. It otherwise flops limply. Gander has no feeling in his fingers, has lost his fingernails, and must wear a glove on his hand to prevent swelling. Gander's useless right arm causes him problems with minor things, like buttoning the top of his shirt or tying his shoe laces; Gander testified that these problems cause him to be frustrated and irritable. Moreover, attempts at vocational rehabilitation were unsuccessful, and Gander was discharged from Anheuser-Busch on August 31, 1987. He now does some volunteer work at a local hospital. The trial testimony indicated that the injury has enormously changed Gander's life.

As indicated, the case was tried to a jury on theories of strict products liability and negligence. The single verdict form submitted to the jury contained reference to both theories. Part I required a verdict on the strict liability claim. Part II required the jury to assess the comparative fault of the plaintiff and the defendant in the event that it found for the plaintiff on the negligence claim. Part III required the jury to assess total damages. The jury found for Gander on both theories, assessed Gander's fault at 90%, and found total damages to be $2,000,000.

After the jury was dismissed, however, the district court expressed doubt about whether the jury verdict was for $2,000,000 or for $200,000; i.e., $2,000,000 total damages reduced by the 90% fault assessed to Gander. The district court initially entered judgment for $200,000. On Gander's motion to amend the judgment, however, the court decided that Gander was entitled to $2,000,000 on the strict liability claim, which could not be reduced by Gander's comparative fault under Missouri law. This appeal followed.

II. DISCUSSION

A. The Verdict Form

FMC argues on appeal that the district court erred both in submitting to the jury Gander's verdict form, which it argues was confusing and inaccurate, and in amending judgment. While the arguments are closely related and both ultimately turn on whether the verdict form correctly stated Missouri law, we treat the arguments separately.

The verdict form was submitted by Gander, and was taken from the Missouri Approved Jury Instructions. MAI 35.15 illustration (3d ed. Supp.1989) (the form is indicated as Verdict A, and is taken from MAI 36.01 and 37.07). The form used is approved, at least as an illustration, by the Missouri Supreme Court for the submission of both strict liability and negligence claims, and was new at the time of trial. Brief for Appellant at 9. It contains three parts, ¹ the first dealing with the strict liability claim, the second with comparative fault on the negligence claim, and the third with total damages. The difficulty the district court had, and the arguable error in the form, stems from the closing note, which explains the reduction in damages for plaintiff's comparative fault on the negligence claim.

NOTE: If you assessed a percentage of fault to any defendant on plaintiff's claim for personal injury based on negligence, the judge will reduce the total amount of plaintiff's damages by any percentage of fault you assess to plaintiff.

After the jury had been dismissed, FMC remarked that the verdict appeared to be $200,000; i.e., $2,000,000 total damages reduced by the 90% fault assessed to Gander. Trial Transcript, vol. 3, at 270. Gander argued that the verdict was for $2,000,000, since the jury found for Gander on the strict liability claim, which could not be reduced by Gander's comparative fault. Id. at 272. The district court replied: "Not based on the note on part three." Id. After quoting the note, the court continued: "This is directing me to reduce that by 90 percent." Id. at 274. The district court then entered judgment for $200,000.

Upon Gander's motion to amend, however, the district court decided that it had improperly reduced the total damages by the percentage of comparative fault assessed to Gander. "Inasmuch as this is a case in which comparative negligence principles apply only to the jury's determination on the negligence claim and not to the strict liability claim, the jury's findings as reflected on the verdict form entitle plaintiff to a judgment in the amount of Two Million Dollars ($2,000,000)." Memorandum and Order, No. 87-1155C(6), July 13, 1988, at 2.

To the extent that FMC argues that the district court erred in amending its judgment, we disagree. "The decision to grant or deny a Rule 59 motion is committed to the sound discretion of the trial court." A.W. v. Northwest R-1 School Dist., 813 F.2d 158, 165 (8th Cir.), cert. denied, 484 U.S. 847, 108 S.Ct. 144, 98 L.Ed.2d 100 (1987); Slater v. KFC Corp., 621 F.2d 932, 939 (8th Cir.1980). Under Missouri law, which we are bound to apply in this diversity case, see Walker v. Paccar, Inc., 802 F.2d 1053, 1055 (8th Cir.1986), the district court was correct in amending the judgment. Missouri law is clear that a verdict resting on a strict liability claim cannot be reduced by a plaintiff's comparative fault. In Lippard v. Houdaille Indus., 715 S.W.2d 491 (Mo.1986), the Missouri Supreme Court held that "the plaintiff's contributory negligence is not at issue in a products liability case." Id. at 493. The court explained that negligence on the part of plaintiff should neither prohibit nor reduce plaintiff's recovery on a strict liability claim. "We adhere to the view that distributors of 'defective products unreasonably dangerous' should pay damages for injuries caused by the products, without reduction because a plaintiff may have been guilty of a degree of carelessness." Id. at 494. As defense counsel admitted at oral argument, the judgment of $200,000 under the strict liability theory was clearly incorrect as a matter of Missouri law. Therefore, we find no abuse of discretion by the district court.

This does not, however, end the matter. FMC's argument is better stated in terms of the verdict form's correctness. That is, the fact that the amended judgment properly reflected Missouri law does not mean that the verdict form itself did not misstate Missouri law or unduly confuse the jury. Thus, FMC argues that the form was incorrect as a matter of law, or, in the alternative, that it was so confusing that the intent of the jury is unclear. The jury may, indeed, have been misled by the closing note, which could be read (as first read by the district court) to apply comparative fault to the strict liability claim as well as to the negligence claim. On its face, the note is not specifically limited to the negligence claim. Nor does the note specifically apply to the strict liability claim. Because of this ambiguity, the jury, according to FMC, may have been led to conclude that total damages would be reduced by any percentage of fault assessed to Gander, even though it found in Gander's favor on the strict liability claim. Hence, FMC argues, the jury probably intended that Gander receive only $200,000, and thus assessed total damages of $2,000,000 because it thought that total damages would be reduced by 90%. We must, therefore, consider whether the verdict form is legally incorrect or unduly misleading.

While it is a close...