Gilbert v. Cosco Inc., No. 91-7005

• Decision Date: 24 March 1993
• Docket Number: No. 91-7005
• Citation: 989 F.2d 399
• Parties: 38 Fed. R. Evid. Serv. 557, Prod.Liab.Rep. (CCH) P 13,446 Gregory L. GILBERT, individually and as administrator of the Estate of Deric Gregory Gilbert, deceased, and his wife, Tammy Gilbert, Plaintiffs-Appellants, v. COSCO INCORPORATED, a corporation organized and existing under the laws of the State of Indiana, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 399

989 F.2d 399

38 Fed. R. Evid. Serv. 557, Prod.Liab.Rep. (CCH) P 13,446

Gregory L. GILBERT, individually and as administrator of the

Estate of Deric Gregory Gilbert, deceased, and his

wife, Tammy Gilbert, Plaintiffs-Appellants, v. COSCO INCORPORATED, a corporation organized and existing

under the laws of the State of Indiana, Defendant-Appellee.

No. 91-7005.

United States Court of Appeals, Tenth Circuit.

March 24, 1993.

Jerry L. McCombs of McCombs, Brock & Leonard, Idabel, OK, for plaintiffs-appellants.

John H. Tucker (Jo Anne Deaton with him on the brief), of Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, OK, for defendant-appellee.

Before McKAY, Chief Circuit Judge, SETH, Senior Circuit Judge, and BRORBY, Circuit Judge.

BRORBY, Circuit Judge.

Mr. Gregory Gilbert and Mrs. Tamara Gilbert, the Appellants, brought a products liability action against Cosco Inc. claiming that defects in the child restraint device manufactured by Cosco Inc. caused the death of their infant child, Deric Gilbert. Mr. and Mrs. Gilbert appeal the jury verdict alleging the district court erred in certain evidentiary decisions and erred in instructing the jury. We disagree with Mr. and Mrs. Gilbert and affirm the district court.

I.

The facts involved in this dispute are as follows. Mrs. Tamara Gilbert was driving home in her Bronco II with her three-month-old infant, Deric Gilbert. Deric was riding in a Model 582 child restraint designed and manufactured by Cosco Inc. During the drive home, Mrs. Gilbert was distracted by her child and accidently drove the vehicle off the highway at a speed of fifty to fifty-five miles per hour. The vehicle, which remained upright at all times, bounced down a steep embankment roughly 200 to 215 feet before coming to rest. As a result of the accident, Deric suffered a severe head injury from which he died nearly one week later.

Mr. Gregory Gilbert, both as father and as administrator of Deric's estate, and Mrs. Tamara Gilbert (hereinafter referred to as the Gilberts) brought suit against Cosco Inc. (Cosco) alleging the Model 582 child restraint was defective and that the defect was the direct and proximate cause of the fatal injuries sustained by Deric in the accident. At trial, the Gilberts alleged two defects in the Model 582 child restraint: (1) the type of foam padding, and (2) the design, which caused a "springboard effect." Cosco denied that its Model 582 child restraint was defective and put forth alternative explanations for the injuries sustained. The case was tried before the United States District Court for the Eastern District of Oklahoma based on diversity jurisdiction. The jury returned a verdict in favor of Cosco and the Gilberts appeal.

The substance of this appeal concerns certain evidentiary rulings made by the district court. At trial, over objection by the Gilberts, the district court allowed Cosco to introduce as evidence film depicting sled tests it conducted with the Model 582 child restraint. The court also granted Cosco's Motion in Limine to preclude the admission of evidence relating to other child restraint models manufactured by Cosco which were not a subject of this lawsuit.

The Gilberts allege that the trial court: (1) erred in admitting the sled tests Cosco conducted with the Model 582 child restraint; (2) erred in excluding evidence which demonstrated decisions made by Cosco in manufacturing other models of child restraints; and (3) erred in failing to instruct the jury, as requested, that upon proof that Cosco withheld evidence, such evidence is presumed unfavorable to Cosco.

II.

We first address the Gilberts' contention that the trial court erred in admitting the sled tests into evidence. The Gilberts argue that the sled tests were not conducted under conditions substantially similar to the accident and thus were irrelevant or prejudicial. ¹ Cosco contends that the sled tests were not meant to simulate the accident, nor were they admitted into evidence as such, instead, the tests were designed to illustrate scientific principles. After careful consideration of the record, we affirm the district court.

The district court is given broad discretion in deciding evidentiary matters including the admissibility of experiments. ² Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1441-42 (10th Cir.1992); McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.1991). We review such evidentiary rulings for an abuse of discretion. Durtsche v. American Colloid Co., 958 F.2d 1007, 1011 (10th Cir.1992). "Under the abuse of discretion standard, a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." McEwen, 926 F.2d at 1553-54 (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986)).

As a general rule, the proponent seeking to admit out-of-court experiments into evidence must demonstrate a " 'similarity of circumstances and conditions' " between the tests and the subject of litigation. Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981) (quoting Navajo Freight Lines v. Mahaffy, 174 F.2d 305, 310 (10th Cir.1949)). See also Robinson v. Audi NSU Auto Union Aktiengesellschaft, 739 F.2d 1481, 1484 (10th Cir.1984); Brandt v. French, 638 F.2d 209, 212 (10th Cir.1981). "The purpose of this rule is to prevent confusion of the jury." Robinson, 739 F.2d at 1484 (citing Jackson, 647 F.2d at 1027). A recognized exception to this rule exists when the experiment merely illustrates principles used to form an expert opinion. In such instances, strict adherence to the facts is not required. Four Corners Helicopters, 979 F.2d at 1442; Robinson, 739 F.2d at 1484; Brandt, 638 F.2d at 212. See also Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261 (7th Cir.1988). ³ Therefore, experiments which purport to recreate an accident must be conducted under conditions similar to that accident, while experiments which demonstrate general principles used in forming an expert's opinion are not required to adhere strictly to the conditions of the accident. Furthermore, "when experiments do not simulate the actual events at issue, the jury should be instructed that the evidence is admitted for a limited purpose or purposes." Robinson, 739 F.2d at 1484 (citing Brandt, 638 F.2d at 212); Bannister, 812 F.2d at 1270.

Cosco argues that since the "tests were offered to demonstrate scientific principles underlying Dr. McElhaney's testimony and opinions," the tests need not simulate the conditions of the accident. ⁴ Cosco further contends that the tests were conducted specifically to refute the Gilberts' expert witness who testified that Ensolite padding was superior to the urethane foam used by Cosco, and that the design of the seat caused a "springboard effect."

It is clear from the record that the trial court's decision to admit the sled tests into evidence was for the limited purpose of illustrating certain scientific principles and not to recreate the accident. The court heard testimony by Dr. McElhaney discussing how the tests were conducted and the purposes for which the tests would be used if offered as evidence. Specifically, Cosco proposed to use the tests to demonstrate the physical principles upon which Dr. McElhaney would base the following opinions: (1) in a relative comparison of energy absorption properties, Ensolite performed no better than the urethane foam used in the Model 582 child restraint; (2) contact between the child's head and the padded restraint device could not generate sufficient force to cause a significant head injury; and (3) the alleged rebound effect identified by the Gilberts' expert witness was due to applying breaks to the sled after impact, and not from any design flaw in the child restraint.

The trial court did not make a hurried decision. Before admitting the sled tests into evidence, the court considered arguments from both sides, heard testimony from Dr. McElhaney concerning the tests and the relevancy of the data, allowed the Gilberts' attorney to question Dr. McElhaney, and in some instances, actively questioned the expert witness to discern the potential relevancy and prejudicial impact of the tests. The sled tests were ultimately used to assist Dr. McElhaney in demonstrating physical principles which formed the basis of his expert opinion and thus it was unnecessary for the tests to replicate conditions of the accident. The tests were clearly relevant, and while somewhat prejudicial to the Gilberts, we do not find that the trial court abused its discretion by allowing the tests into evidence. Moreover, the Gilberts were given ample opportunity to attack the credibility of Dr. McElhaney's conclusions by pointing out inconsistencies and shortcomings in the sled test design and such factors were considered by the jury in weighing the evidence.

The Gilberts contend that despite Cosco's assurances that the tests were not meant to recreate the accident, Dr. McElhaney actually utilized the tests at trial to show how the accident happened. Essentially, the Gilberts argue that even if the sled tests were admissible for the limited purposes proposed by Cosco, the tests were actually used at trial to recreate the accident. We disagree.

The Gilberts refer to two instances in particular where they contend the tests were used to demonstrate more than basic principles: (1) Dr. McElhaney testified that the forces applied to the mannequin's head during the sled test could not cause a skull fracture, and since the sled test was "more severe" than the accident, there was no potential for injury in the accident when the child's head struck the restraint device; and (2) Dr. McElhaney testified that a Ford Bronco seat was used in the sled tests because "we're looking at what happened in the accident" and the performance of a child restraint depends upon the...