Garrett v. Desa Industries, Inc.

• Decision Date: 14 April 1983
• Docket Number: No. 82-1597,82-1597
• Citation: 705 F.2d 721
• Parties: 12 Fed. R. Evid. Serv. 1744 Chris GARRETT, Appellant, v. DESA INDUSTRIES, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 721

705 F.2d 721

12 Fed. R. Evid. Serv. 1744

Chris GARRETT, Appellant, v. DESA INDUSTRIES, INC., Appellee.

No. 82-1597.

United States Court of Appeals Fourth Circuit.

Argued Jan. 12, 1983.

Decided April 14, 1983.

Peter M. Sweeny, Alexandria, Va. (Ashcraft & Gerel, Alexandria, Va., on brief), for appellant.

John O. Easton, Washington, D.C. (Carr, Jordan, Coyne & Savits, Washington, D.C., on brief), for appellee.

Before PHILLIPS and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

ERVIN, Circuit Judge:

This is an appeal by Chris Garrett from a judgment entered by the United States District Court for the Eastern District of Virginia upon a jury verdict that denied Garrett recovery against Desa Industries, Inc. ("Desa"). Garrett sought damages for an eye injury suffered when a stud driver manufactured by Desa was discharged accidently causing a piece of metal to enter his right eye. Because the district court abused its discretion in limiting the scope of expert testimony and erroneously instructed the jury concerning Garrett's contributory negligence, we reverse and remand for a new trial.

I.

On August 8, 1980, Garrett was working as a carpenter in Woodbridge, Virginia. At the time of his injury, he was erecting wood frames in the basement of a new house. The task involved driving nails through wood blocks into the cement walls. The nails were driven by a stud driver manufactured by Desa.

A stud driver operates similarly to the way a handgun operates. It employs a .22 caliber powder-activated cartridge, which is inserted into the tool's chamber. When the tool is fired, the gasses from the ignited powder drive a piston forward to strike the head of a nail which is located in the tool's barrel. The nail then is thrust through the barrel into the wood.

If the tool fails to fire, the unspent cartridge should be ejected. The cartridge is ejected by vigorously swinging the stud driver in an arching manner away from the operator's body. This motion is supposed to cause the cartridge to fall out of the tool through an opening between the barrel and the breech.

Garrett's injury occurred after the stud driver he was using failed to fire. Garrett attempted to eject the cartridge in the recommended manner, but the cartridge remained in the breech, even though the chamber had opened. Garrett then attempted to remove the cartridge by opening and closing the chamber, whereupon the cartridge exploded and shell fragments penetrated Garrett's right eye.

Garrett was not wearing safety goggles at the time of the accident. Desa provided safety goggles with the stud driver. Both came in the same box and a sticker attached to the box warned that goggles should be worn when operating the stud driver.

Garrett filed this action, based on diversity jurisdiction, on February 2, 1982. He asserted that Desa was liable on theories of breach of implied warranty of merchantability, negligent design, and negligent manufacture of the stud driver.

The parties engaged in extensive discovery. As part of that discovery, Desa furnished Garrett with mechanical diagrams of the stud driver. Garrett had those drawings photographically enlarged to be used as an exhibit at trial. On February 26, 1982, District Judge Albert V. Bryan issued a pre-trial order that provided, inter alia, that exhibits not objected to at the pretrial conference would stand admitted into evidence. Desa did not object at any time to the photographic enlargements.

Garrett also deposed Desa's named expert witnesses. None of those witnesses expressed any opinion about whether the safety goggles provided by Desa would protect an operator's eyes from the type of explosion that occurred here.

The case proceeded to jury trial on June 9, 1982, with Senior District Judge Oren R. Lewis presiding. On the first day of trial, Garrett moved the court in limine to order Desa to refrain from referring to or raising the issue of safety goggles at the trial. The motion was denied and Desa eventually raised the issue on cross-examination of three of Garrett's witnesses, but not on direct examination of Desa's witnesses.

During the trial, Judge Lewis severely restricted the scope of the testimony of Commander Alfred I. Cipriani, USN, Garrett's expert witness. That limitation prevented Cmdr. Cipriani from giving his opinion on the ultimate issue in the case, i.e., whether the stud driver was negligently manufactured. The court also refused to allow Cmdr. Cipriani to refer to the photographic enlargements of the stud driver's design.

Judge Lewis further refused to give certain jury instructions requested by Garrett concerning contributory negligence and Garrett's nonuse of safety goggles. On June 10, 1982, the jury returned a verdict for Desa and Garrett thereafter filed this appeal.

II.

Garrett claims that he is entitled to a new trial because Judge Lewis abused his discretion in limiting the scope of Cmdr. Cipriani's testimony and erroneously instructed the jury on contributory negligence in connection with the failure to wear safety goggles. ¹ We agree.

A. Scope of Expert Testimony

Cmdr. Cipriani is a graduate of the United States Naval Academy with a Bachelor of Science degree. He also holds a Masters degree in mechanical engineering from the Navy's postgraduate school and is a registered engineer in three states. As a gunnery officer, Cmdr. Cipriani had responsibility for small arms and other ammunition and became familiar with the type of .22 caliber cartridges used in the stud driver. Prior to this case, Cmdr. Cipriani had no specific experience with stud drivers. Since becoming involved in the case, he has operated and examined the model used by Garrett and other stud driver models.

Garrett alleged that Desa negligently designed the stud driver and attempted to have Cmdr. Cipriani testify to that effect as an expert witness. Judge Lewis ruled, however, that Cmdr. Cipriani could not testify as to the design and manufacture of stud drivers; as a result, his testimony was limited to the findings of his tests on the particular instrument used by Garrett. Judge Lewis made this ruling because Cmdr. Cipriani "had no experience in the manufacture or use or working of stud guns prior to [his] examination in this case." Judge Lewis indicated that the only expert qualified to testify about the design of stud drivers would be someone from industry who actually designs them.

While the determination of what an expert is qualified to testify about is normally within the discretion of the trial judge, that determination is reversible if it is a clear abuse of discretion. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). Judge Lewis' limitation on Cmdr. Cipriani's testimony amounts to a reversible abuse of discretion.

A witness may be qualified as an expert "by knowledge, skill, experience, training, or education." Fed.R.Evid. 702 (emphasis added). The "or" indicates that a witness may be qualified as an expert by any one of the five listed qualifications. Dychalo v. Copperloy Corp., 78 F.R.D. 146, 149 (E.D.Pa.1978), aff'd, 588 F.2d 820 (3d Cir.1978). It was error for Judge Lewis to rule that Cmdr. Cipriani was unqualified simply because he lacked one of the five qualifications, namely, prior experience with stud drivers. Cmdr. Cipriani was qualified by his education, knowledge, training, and skill as a holder of a Masters degree in mechanical engineering, professional engineer, and gunnery officer. Witnesses with qualifications similar to those of Cmdr. Cipriani have been qualified to testify in like situations. See Holmgren v. Massey-Ferguson Inc., 516 F.2d 856 (8th Cir.1975) (professor of mechanical engineering with little experience with corn pickers qualified as expert to testify about picker's design); Dychalo v. Copperloy Corp., 78 F.R.D. 146 (E.D.Pa.1978), aff'd, 588 F.2d 820 (3d Cir.1978) (metallurgical engineer who had no experience with ramp qualified as expert to testify about construction and design of ramp); Gardner v. General Motors, 507 F.2d 525 (10th Cir.1974) (mechanical engineer who had no experience designing truck exhaust system qualified as expert to testify about design of that system).

We are not dissuaded from this view by those cases wherein mechanical engineers who had little experience concerning the design of a particular item were not allowed to testify about the item's design. See Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir.1979) (design of automobile); Poland v. Beaird-Poulan, 483 F.Supp. 1256 (W.D.La.1980) (design of chainsaws). Cmdr. Cipriani not only was a mechanical engineer, but he had examined and tested stud drivers prior to trial and had previous experience with similar mechanisms as a gunnery officer. The stud driver is not so complicated a tool that someone with Cmdr. Cipriani's education and knowledge could not, even with his limited experience prior to this action, provide expert testimony.

A related issue is Judge Lewis' refusal to allow Cmdr. Cipriani to opine on the ultimate issue in the case, i.e., whether the tool was unreasonably dangerous. That refusal is consistent with the judge's erroneous limitation on the scope of Cmdr. Cipriani's testimony. If Cmdr. Cipriani is qualified to testify about the stud driver's design and manufacture, he may render an...