Gary v. Professional Div., Alberto-Culver Co.
| Decision Date | 06 October 1988 |
| Docket Number | ALBERTO-CULVER,No. 87-3863,87-3863 |
| Citation | 862 F.2d 869 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Pamela Denise GARY, Plaintiff-Appellant, v. PROFESSIONAL DIVISION,COMPANY aka t/a Alberto-Culver, Defendant-Appellee, . Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
John T. Jessee, Frank K. Friedman (E. Dale Burruss, Woods, Rogers & Hazlegrove, on brief), for appellant.
John Franklin III (Taylor & Walker, P.C., on brief), for appellee.
Before MURNAGHAN and CHAPMAN, Circuit Judges, and RICHARD L. WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.
The plaintiff in this case, Pamela Gary, appeals from a jury verdict for the defendant in her product liability suit. Though Ms. Gary raises numerous objections to the trial court's evidentiary rulings and jury instructions, the narrow question on this in forma pauperis appeal is whether Ms. Gary should be provided a transcript of the trial proceedings at government expense.
Gary was a welder at Norfolk Naval Shipyard in Portsmouth, Virginia. While she was welding on January 31, 1986, a spark apparently flew under her safety mask and ignited her hair, causing severe injury. She sued the appellee, Alberto-Culver Company, which manufactured a hair care product known as "TCB Curl Activator with Glycerin" ("TCB"). Gary had used TCB on her hair that morning. She claimed that TCB was dangerously defective in its chemical makeup (alleged to be petroleum-based with alcohol), and that Alberto-Culver had breached express and implied warranties and its duty to warn that the product was flammable. Alberto-Culver defended on the grounds of contributory negligence and assumption of risk, arguing that Gary had failed adequately to shield her hair, and that the spark ignited her hair, not the TCB.
Gary lists several errors that she contends contributed to the jury's verdict for Alberto-Culver. First, she argues that contributory negligence is no defense to a warranty claim and that the trial court permitted a verdict based on assumption of risk even though she was not properly warned of TCB's combustibility. Second, Gary objects to four evidentiary rulings excluding her evidence as irrelevant. She argues that to press these claims on appeal she needs a transcript of the trial.
In addition to transcripts in certain criminal cases, 28 U.S.C. Sec. 753(f) provides that fees for transcripts in in forma pauperis appeals shall be paid by the United States "if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question)."
Initially, there is some dispute as to what constitutes a "substantial" question. The leading case, Ortiz v. Greyhound Corp., 192 F.Supp. 903, 905 (D.Md.1959), defines it as "reasonably debatable," but also urges the trial judge not to certify a substantial question unless the case presents a "new principle of law to be applied to the facts." Whatever the value of the "new principle" standard where a litigant raises purely legal claims, it is inappropriate where, as here, the party alleges that the trial court erred in its evidentiary rulings. If the "new principle" standard were uniformly applied regardless of the claim, no transcript would ever be available in cases challenging evidentiary rulings, no matter how egregious the error. Such claims challenge not a legal principle but the specific, fact-based application of a principle to the evidence presented. A "new principle of law" is never presented, and thus the standard is inappropriate. Therefore, we believe that Gary is entitled to a transcript, at least on her evidentiary claims, if she can show that her claims are not frivolous but "reasonably debatable." This lesser burden is also appropriate because "[d]oubts about the substantiality of the questions on appeal and the need for a transcript to explore them should be resolved in favor of the petitioner." Lee v. Habib, 424 F.2d 891, 905 (D.C.Cir.1970).
Even with this clarification, the inquiry can become circular: we arguably need to see the transcript to decide whether the appellant is entitled to one. In the words of Learned Hand, "we could not adequately decide the motion until after we had granted it." Jaffe v. United States, 246 F.2d 760, 762 (2d Cir.1957). 1 We avoid this dilemma by focusing on the merits of the claim, not what happened at trial. The proper question is whether the appellant has a "reasonably debatable" claim independently of the parties' conflicting memories of the trial. If the plaintiff's claim lacks merit even if the trial occurred as she states, then provision of a transcript would be futile because even if she is correct about trial events she cannot prevail. On the other hand, if the validity of her claim turns only on what happened at trial, then the merits of the claim are debatable and under the statute she is entitled to a transcript to resolve the preliminary dispute. Otherwise, the only factor that renders her claims frivolous would be her inability to prove what happened at trial, the very problem the statute was designed to correct.
On three of the four evidentiary rulings, Alberto-Culver does not argue that Gary's claims are frivolous, but only that "Appellant's recollection of the actual events during the trial are [sic] incorrect." Brief of Appellee at 8-9. We hold that Gary has raised substantial questions on these three claims.
First, Gary claims that the trial court improperly excluded evidence of prior burn-related injuries from TCB, which she claims would have demonstrated Alberto-Culver's knowledge of the problem and its duty to warn. Instead of arguing that such evidence would have been irrelevant, Alberto-Culver argues only that the issue was fully explored in the plaintiff's cross-examination of its expert. The adequacy of plaintiff's cross-examination obviously cannot be reviewed without a transcript. Though the merits of Gary's claims are not before us, we note that several cases in this Circuit have held such evidence admissible. See, e.g., Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir.1971); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir.1962). If Gary's cross-examination of the appellee's expert was in fact deficient, an issue that only a transcript can resolve, then she has a reasonably debatable claim.
Similarly, Gary argues that the trial court should have admitted evidence that similar products, unlike TCB, contained warnings about flammability. Alberto-Culver responds only that Gary failed to lay an adequate foundation for its introduction. The parties again argue about what happened at trial instead of the merits of the claim. If the appropriate foundation was laid, Gary has a reasonably debatable claim that industry custom was relevant evidence.
Next, Gary claims her chemical expert was not permitted to testify concerning his TCB test results, which allegedly would have demonstrated that TCB is highly flammable. The appellee claims the expert testified extensively on the subject. This Court held in Gardner, 448 F.2d at 244, that flammability tests are admissible, so again Gary's claim is at least "reasonably debatable" if the transcript bears out her version of the expert's testimony.
Gary claims finally that the trial court should have permitted testimony that the Norfolk Naval Shipyard adopted safety procedures after...
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