Hidalgo v. Fagen Inc., No. 99-1033

• Decision Date: 20 March 2000
• Docket Number: No. 99-1033
• Citation: 206 F.3d 1013
• Parties: (10th Cir. 2000) SABINO HIDALGO, JR., Plaintiff-Appellant, v. FAGEN, INC.; KWS MANUFACTURING CO., INC.; DAVID KAMINSKI; DARYL GILLUND, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1013

206 F.3d 1013 (10th Cir. 2000)

SABINO HIDALGO, JR., Plaintiff-Appellant, v. FAGEN, INC.; KWS MANUFACTURING CO., INC.; DAVID KAMINSKI; DARYL GILLUND, Defendants - Appellees.

No. 99-1033

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 20, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D.C. No. 96-WM-672

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Eduardo M. Madrid (and George G. Johnson, Jr., Peter M. Johnson, and Andrew R. Johnson, Denver, Colorado, with him on the briefs), Diamond Bar, California, for Plaintiff-Appellant.

Diane Vaksdal Smith (and Scott J. Eldredge, with her on the briefs), Burg, Simpson, Eldredge & Hersh, P.C., Englewood, Colorado,for Defendant-Appellee KWS Manufacturing, Inc.

Wendelyn K. Walberg, Walberg, Dagner & Tucker, P.C., Englewood, Colorado, for Defendant-Appellee Fagen, Inc.

Before SEYMOUR, Chief Judge, TACHA, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant, Mr. Sabino Hidalgo, suffered grievous injuries to his arm while cleaning a screw conveyor at the Excel meat packing plant in Fort Morgan, Colorado. His arm ultimately required amputation. He brought suit against KWS Manufacturing, Inc. ("KWS"), the company that manufactured the component parts of the screw conveyor; Fagen, Inc. ("Fagen"), the contractor hired to construct the conveyor system; and two individuals, David Kaminski, who oversaw the construction of the conveyor, and Daryl Gillund, Fagen's chief financial officer. The district court granted summary judgment in favor of KWS, Mr. Kaminski and Mr. Gillund. The district court granted partial summary judgment in favor of Fagen on the claims that it was strictly liable for injuries caused by the conveyor, and it had breached express and implied warranties concerning the screw conveyor. The matter went to trial on Mr. Hildago's negligence claims against Fagen and the jury returned a verdict in favor of Fagen.

Mr. Hidalgo appeals from the district court's grant of summary judgment in favor of KWS on his strict liability claims, arguing that (1) he did, in fact, meet his burden by demonstrating a genuine issue of material fact, and (2) the district court applied the wrong standard, requiring him to prove that the parts in question were defective when they left KWS's control. He also appeals from the grant of summary judgment in favor of Fagen on his strict liability claim, arguing that the district court erred in deciding that strict liability principles do not apply to fixtures or improvements to real property under Colorado law.

Mr. Hidalgo seeks a new trial on several grounds. He argues that the district court improperly denied his Batson challenge to Fagen's peremptory strikes, thereby permitting Fagen to exclude all Hispanics from the jury. Next, he challenges various evidentiary rulings. He contends that the district court incorrectly (1) limited the testimony of his expert witness; (2) permitted Fagen's expert witness to testify as to compliance with OSHA standards; (3) permitted references to worker's compensation, in violation of its prior ruling; and (4) permitted a witness for Fagen to speculate about the customary practices of those employees who clean screw conveyors at the plant. Finally, Mr. Hidalgo contends that a new trial is warranted because there was jury tampering. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

A.Strict Liability Claim Against KWS

Mr. Hidalgo first challenges summary judgment in favor of KWS on his strict liability claim. He contends that inclusion of a report by an engineer, John Sevart, was sufficient to show a genuine issue of material fact regarding a design defect in the screw conveyor system supplied by KWS. He further contends that the district court applied the wrong summary judgment standard, impermissibly requiring him to demonstrate that the product was defective when it left KWS's control.

We review summary judgment rulings de novo. See Southwestern Bell Wireless, Inc. v. Johnson County Bd. of County Comm'rs, 199 F.3d 1185, 1189 (10th Cir. 1999). Summary judgment is appropriate if the moving party demonstrates that there is "'no genuine issue as to any material fact' and that it is 'entitled to a judgment as a matter of law.'" Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (quoting Fed. R. Civ. P. 56(c)). The moving party bears the initial burden of showing that there are no genuine disputed issues of fact. See id. If the movant does not bear the ultimate burden of persuasion at trial, he may make this showing by identifying a lack of evidence on any essential element of the nonmovant's claim. See id. at 671. If the nonmovant bears the ultimate burden of persuasion at trial, he may not rest on his pleadings, rather he must set forth specific facts that would be admissible as evidence and from which a rational trier of fact could find for him at trial. See Fed. R. Civ. P. 56(e).

As noted, the KWS screw conveyor was a component part sold to Fagen used in the meat rendering system built for the Excel plant. For Mr. Hidalgo to succeed on his strict liability claim against KWS for the screw conveyor, he was required to demonstrate that the part itself was defective, not the final product.¹ See Bond v. E.I. Dupont De Nemours & Co., 868 P.2d 1114, 1119 (Colo. Ct. App. 1993). There is no evidence to this effect. Mr. Hildago did submit an expert report that discussed the screw conveyor as it functioned in the final meat rendering system. The report concluded that it was unreasonably dangerous, and that alternative designs would vitiate this condition. However, these largely unsupported conclusions do not allege defects in the component part standing on its own. Thus, summary judgment was proper. Moreover, no evidence suggests that KWS collaborated with Fagen in the design of the final meat rendering system, thereby exposing KWS to liability for system defects.

B.Strict Liability Claims Against Fagen

Mr. Hidalgo next argues that the district court erred in granting summary judgment in favor of Fagen. Contrary to his assertions, Colorado has explicitly adopted the Restatement (Second) of Torts § 402A, which imposes strict liability in tort upon a manufacturer or seller for harm caused by a defective product which the manufacturer has placed into the stream of commerce. See Hiigel v. General Motors Corp., 544 P.2d 983 (Colo. 1975). The Colorado Products Liability Act, Colo. Rev. Stat. §§ 13-21-401, et seq., defines "manufacturer," limits liability of sellers and distributors who are not manufacturers and creates a presumption of non-defectiveness for products sold ten years or more before any claimed injuries. Under Colorado law, the sine qua non of a strict liability claim is the "sale" of a "product." See St. Luke's Hosp. v. Schmaltz, 534 P.2d 781, 784 (Colo. 1975). Fagen moved for summary judgment on the grounds that the construction of the conveyor system was not the sale of a product. It attached evidence tending to show that it was a contractor, providing a service and incidental materials. Fagen's summary judgment evidence included work agreements referring to Fagen as a "contractor," and a mechanics lien.

Colorado courts have been reticent about extending the doctrine of strict liability to the provision of services. See Schmaltz, 534 P.2d at 784; see also Smith v. Home Light & Power Co., 734 P.2d 1051, 1056 (Colo. 1987) (affirming the view of the court of appeals that provision of a service cannot provide a foundation for imposition of strict products liability); Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 828 (Colo. 1982) ("[T]he tort rationale for product liability does not easily extend to cover the providing of services.").

Moreover, as both parties recognize, the Colorado Supreme Court has not extended the principles of product liability to real property improvements. The Colorado Products Liability Act is silent on this point. In the context of products liability, Colorado law draws a sharp distinction between improvements to real property and "products." See Enright v. City of Colorado Springs, 716 P.2d 148, 150 (Colo. Ct. App. 1985) (holding that the trial court improperly applied the Colorado Products Liability Act to an improvement to real property for purposes of the statute of limitations). In viewing the summary judgment evidence on this point, it appears to us that Mr. Hildago has not come forward with sufficient evidence to demonstrate that Fagen sold a product, rather than sold services, resulting in an improvement to real property.

C.Batson Challenges

During voir dire, Fagen exercised two peremptory strikes against two apparent Hispanic women, Ms. Martinez and Ms. Gonzales (in that order). Upon Fagan's striking Ms. Gonzales, Mr. Hidalgo objected that the peremptory strike was racially motivated, reminding the court that she was one of two Hispanics on the jury. When Fagen struck Ms. Martinez earlier, Mr. Hidalgo did not object. The district court inquired as to Fagan's justification for exercising a peremptory strike on Ms. Gonzales. Counsel for Fagen responded:

Your honor, when I approached this jury and this jury selection, one of the fundamental principles I was looking for is I prefer older people, rather than younger people. I would prefer men, rather than women. And when it came down to the third choice, I saw I had a choice between two, and I chose the older to keep the older and strike the younger because I think older people who have had trauma in their lives understand about getting on with it and I think Mr. Hidalgo has not. And therefore, that's why I prefer age over youth.

Aplt. App. at 655-56. The trial court further questioned whether or not Ms. Gonzales' Hispanic background motivated the strike. Counsel for Fagen answered:

No. Quite frankly, I had some concerns about it; but I think she's intelligent. And quite frankly, I want an...