Harned v. Dura Corp., 6150

• Decision Date: 03 June 1983
• Docket Number: No. 6150,6150
• Citation: 665 P.2d 5
• Parties: Charles HARNED and Providence Washington Insurance Company of Alaska, Appellants, v. DURA CORPORATION, Appellee.
• Court: Alaska Supreme Court

Page 5

665 P.2d 5

Charles HARNED and Providence Washington Insurance Company of Alaska, Appellants, v. DURA CORPORATION, Appellee.

No. 6150.

Supreme Court of Alaska.

June 3, 1983.

Mark A. Sandberg, Henry Camarot, Camarot, Sandberg & Hunter and Mary D. Killorin, Anchorage, for appellants.

John W. Abbott and Kenneth M. Rosenstein, Abbott, Lynch & Farney, Anchorage, for appellee.

Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS, and COMPTON, JJ.

OPINION

RABINOWITZ, Justice.

Charles Harned (Harned) ¹ filed suit against Dura Corporation (Dura) seeking compensation for injuries he sustained when a portable compressed air tank allegedly manufactured by Dura's predecessor in interest, Electronics, Inc., ² exploded and severed his left arm. The jury unanimously entered a defense verdict, and Harned appealed, challenging three rulings of the superior court.

On July 25, 1977, Harned was working as a general mechanic at A & M Motors, a Winnebago dealership. As he filled a portable air tank from a compressor, the tank exploded and a piece of it severed his left arm at the elbow. Harned sued Dura, corporate successor to the manufacturer of the tank, alleging that the explosion was caused by the defective design and manufacture of the tank. He asserted that the tank should have contained a valve at the bottom which could be opened to drain moisture accumulating inside. Since it did not, water remained inside, causing the tank to corrode and finally explode when the weakened walls were unable to withstand the pressure of the compressed air. Dura denied that the tank was manufactured by Electronics, Inc. and claimed that the explosion was caused by poor maintenance rather than defective design.

LIMITATION OF CROSS-EXAMINATION

Harned contends that the superior court erred in limiting the scope of his cross-examination of Harold Pendell, a mechanical engineer who testified as an expert witness on Dura's behalf. Pendell was asked by Dura whether, in his opinion, the tank that injured Harned complied with American Society of Mechanical Engineers (ASME) standards. He responded that the tank did not need to conform to the ASME Code since it was not legally binding in every state. The record further indicates that had Pendell been permitted to continue, he would have testified that the Code had not been adopted in South Dakota at the time the tank was manufactured. ³ Harned objected to this line of questioning on the ground that Pendell was not qualified to testify concerning compliance requirements in Alaska. His objection was sustained on the ground that the court would instruct the jury regarding relevant legal standards. Harned later inquired of the court whether he could cross-examine Pendell regarding the tank's compliance with the ASME Code. The superior court indicated it would not permit this questioning since Dura had not pursued on direct its line of inquiry regarding the Code. Harned did not object to this implied restriction. ⁴

On appeal, Harned argues that had he been permitted to cross-examine on the subject, he would have elicited testimony from Dura's expert witness confirming the fact that the tank did not conform to ASME standards. He contends that he chose not to pose these inquiries at trial, construing the superior court's remark as a "threat" that such questions would "open the door" to "irrelevant and prejudicial" testimony regarding South Dakota law. Harned argues that such a "threat" unreasonably restricted his "absolute right" of cross-examination. Alaska Airlines, Inc. v. Sweat, 568 P.2d 916, 931 (Alaska 1977).

We hold that Harned's failure to lodge a contemporaneous objection to the superior court's cross-examination ruling precludes consideration of this issue on appeal. ⁵ Matter of C.L.T., 597 P.2d 518, 522-23 (Alaska 1979); Chugach Electric Ass'n v. Lewis, 453 P.2d 345, 349 (Alaska 1969).

On the other hand, this court will consider plain error, even though not objected to below, if it is so substantial as to result in a miscarriage of justice. Matter of C.L.T., 597 P.2d at 523. Even if we assume Harned was correct in alleging the superior court acted improperly in limiting the scope of his cross-examination of Pendell, we do not believe it was so substantial as to result in a miscarriage of justice. Had Pendell testified on cross-examination that the tank did not conform to ASME standards, his testimony would have been merely cumulative. ⁶ In this regard, Harned's expert witness had previously testified that the tank which caused the injury did not comply with the ASME Code. Moreover, Pendell himself stated that he would not design a tank in accordance with specifications similar to those of the tank that injured Harned. Accordingly, we conclude that invocation of the plain error doctrine to reach this issue of a purportedly erroneous limitation of cross-examination would be inappropriate.

EXCLUSION OF EVIDENCE IN REBUTTAL OF DURA'S OPENING STATEMENT

Harned argues that the superior court erred in refusing to permit him to rebut an assertion made by Dura's counsel during his opening argument. Although we have concluded that the remarks in question were improper, and that Harned should have been allowed to introduce "curative" evidence on rebuttal, we conclude that the error is harmless.

Dura's counsel made the following statement during his opening argument:

We will also call John Oldham. Now, John Oldham is one of the vice presidents for Dura Corporation. And he of course will testify as to one matter, and that is that--and I'll go back to the tank, because we have all these tanks popped open here--that in no case, not in any one of these cases, has Dura Corporation been found negligent. In these cases. And that's important. I think that's important. These cases--these tanks may be open, but I think it's important to note that in not any incident which Plaintiff is going to refer to has there been a finding of negligence. And that's an issue which I think you should keep in mind.

Harned contends that this passage referred to inadmissible evidence, that it was extremely misleading, and that he should have been permitted to counter its prejudicial effect either with testimony regarding the disposition of the other lawsuits pertaining to tanks manufactured by Dura which had exploded, or with a reference in closing argument to Dura's failure to produce Mr. Oldham.

Harned is correct in claiming that Dura's counsel exposed the jury to prejudicial argumentation in his opening statement. In general, prior verdicts are not relevant in subsequent trials involving different parties and factual settings. It follows that it is improper for counsel to advert to the disposition of the same or similar cases during argument to the jury. ⁷ Dura does not suggest that the testimony of Mr. Oldham would have been relevant to an issue properly before the court. ⁸ Thus, counsel's statement constituted a reference to inadmissible and potentially prejudicial evidence which should have been excluded upon proper objection. ⁹

Harned did not raise an objection to the statements of Dura's counsel at the time they were made. However, during the presentation of his case he attempted to introduce testimony regarding litigation that arose from one of the explosions. Dura's objection that the proferred testimony was irrelevant was sustained, ¹⁰ and subsequently Mr. Oldham was not called as a witness by Dura. In addition, the superior court did not permit counsel for Harned to rebut Dura's statement during closing argument, or to discuss the fact that Dura had failed to produce Oldham's promised testimony. The superior court in so ruling reasoned in part that to permit such an argument would constitute "an incursion into [irrelevant] areas that need not be rehashed after two weeks [of trial]." The superior court concluded that the standard instruction informing the jury that "[s]tatements and arguments of Counsel are not evidence in the case" would cure any alleged harm caused by the questioned remarks of Dura's counsel made during opening argument.

In light of his diligent efforts to introduce evidence to rebut Dura's statement regarding the disposition of prior litigation, we are persuaded that Harned's failure to raise an immediate objection to the questioned statements did not constitute a "waiver" of this claim. ¹¹ As to the merits of this specification of error we conclude that Harned's proffered rebuttal testimony and final argument was improperly excluded. As we observed in Patricia R., "there are circumstances in which the introduction of inadmissible evidence requires responding evidence ...." 631 P.2d at 97. ¹² The remark made by Dura's counsel was potentially misleading and referred to evidence which was irrelevant and possibly prejudicial. Although Harned did not make an offer of proof regarding the content of the testimony excluded by the superior court's ruling, it is apparent that it bore upon the disposition of prior cases arising from explosions of Electro-Magic tanks. Under the circumstances, however, the testimony or argument should have been allowed under the doctrine of "curative admissibility." ¹³

Nevertheless, we hold that the exclusion of Harned's rebuttal evidence and argument is not sufficiently prejudicial to warrant reversal. McCracken v. Davis, 560 P.2d 771, 774-75 (Alaska 1977); Sloan v. Atlantic Richfield Co., 541 P.2d 717, 722 n. 9 (Alaska 1975). As we held in Martinez v. Bullock, 535 P.2d 1200, 1206-07 (Alaska 1975), if the error did not significantly affect substantial rights it is harmless and the judgment on the verdict should be affirmed in accordance with Alaska R.Civ.P. 61. ¹⁴

The question of whether or not the erroneous exclusion of Harned's rebuttal evidence was "harmless" should not be decided by mechanistic formulae. ¹⁵ Our conclusion that the error was harmless rests on the fact that a week intervened between opening arguments and submission of the case to...