Higgins v. Martin Marietta Corp.

Decision Date09 January 1985
Docket NumberNos. 82-2073,s. 82-2073
Citation752 F.2d 492
Parties17 Fed. R. Evid. Serv. 588 Deon HIGGINS, Nelson Schock, James Higgins, Howard Higgins, Jerry Higgins, and Michele Higgins, Plaintiffs-Appellants, v. MARTIN MARIETTA CORPORATION and The United States of America, Defendants-Appellees. to 82-2081.
CourtU.S. Court of Appeals — Tenth Circuit

Roger M. Theis and John W. Johnson, Wichita, Kan. (Albert L. Kamas, Wichita, Kan., also on briefs), for plaintiffs-appellants.

Phyllis Jackson Pyles, U.S. Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., and Jeffrey Axelrad, U.S. Dept. of Justice, Washington, D.C., Jim J. Marquez, U.S. Atty., and Sharon Werner, Asst. U.S. Atty., Wichita, Kan., also on brief), for defendant-appellee U.S.

Payne H. Ratner, Jr., Wichita, Kan. (E.L. Lee Kinch, Wichita, Kan., also on brief), for defendant-appellee Martin Marietta Corp.

Before BARRETT and LOGAN, Circuit Judges, and FINESILVER, District Judge. *


This personal injury case arose from an accident occurring at a Titan II missile silo near Rock, Kansas on August 24, 1978. Plaintiffs filed suit against the Defendant United States of America under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), Secs. 2671, et seq. They alleged personal injury resulting from the government's negligence at the silo on the day of the accident.

Suit was filed against Defendant Martin Marietta Corporation alleging negligent design and construction of the Titan II facility. Liability was predicated on theories of product liability and filed pursuant to 28 U.S.C. Sec. 1332.

At trial, the jury returned special verdicts in favor of the Defendants. Plaintiffs appeal this result claiming several evidentiary errors as well as errors in the jury instructions. We affirm judgment for the Defendants.


On the day in question, a large cloud of toxic nitrogen tetroxide gas escaped into the air during a routine refueling procedure. The gas diffused over the countryside, exposing local residents in the process. The silo was operated by the United States Air Force. The missile was generally designed and manufactured by Martin Marietta Corporation.

Exposure to nitrogen tetroxide gas causes certain types of symptomatology. When combined with moisture it becomes nitric acid. The effects of inhaling the gas include pulmonary edema and bronchiolitis.

Plaintiff, Nelson Schock, was employed by, and covering the Titan II story for, radio station KFDI in Wichita, Kansas the day of the accident. He spent several hours near the site, observing the brownish-orange cloud as it dissipated. At the time he experienced dry throat, runny nose and eye irritation. At trial, Mr. Schock claimed he suffered injuries including chest congestion, shortness of breath and throat irritation. These maladies amounted to a chronic pulmonary condition requiring daily treatment and medication.

The Plaintiffs, the Higgins family, claimed they were exposed to the gas as it passed over the area where they live. The family suffered eye, nose and throat irritation upon exposure. For several months after the accident the family members claimed to experience upper and lower respiratory problems and throat and eye problems in varying degrees of severity.

The trial was bifurcated on the issues of liability and damages. As the end of the liability trial approached, the parties reached a settlement concerning liability. The Defendants apportioned liability among themselves for the accident. A trial to a jury addressing the damages claims commenced July 20, 1981 and continued for four weeks. Special interrogatories were utilized by the trial court. The first interrogatory asked the jury to determine if the Plaintiffs had been exposed to the nitrogen tetroxide gas. The second interrogatory asked them to determine if, given the Plaintiffs had in fact been exposed, they had been damaged. As to Nelson Schock, the jury found he had been exposed to the gas but suffered no injury as a result. The jury determined that no one in the Higgins family had been exposed.


The following points are urged by Plaintiffs for reversal. First, the admission of testimony by General Thomas P. Stafford absent his medical records and the refusal of the trial court to give a jury instruction regarding the missing records. Second, the Plaintiffs contest the trial court's failure to give a jury instruction on the aggravation of a preexisting condition. Third, Plaintiffs claim reversible error occurred when the trial court allowed allegedly prejudicial hearsay regarding Mr. Schock, that referenced workman's compensation issues, to be read to the jury. Finally, Plaintiffs seek reversal on the following issues: the denial of adequate cross examination of one of the Defendants' medical experts due to the failure to produce his reports, a reference to the Plaintiffs' counsel's alleged solicitation of the case, and the prohibition by the trial court of Plaintiffs' cross examination regarding the condition of other plaintiffs not involved in the present action.


The central issue on appeal revolves around the testimony of General Thomas P. Stafford (retired), a former NASA astronaut and nationally known in the space and aeronautical fields. General Stafford and his crew were exposed to nitrogen tetroxide in their space capsule upon reentry into the Earth's atmosphere on the Apollo-Soyuz space mission in July of 1975. The Defendants called General Stafford as a witness to testify as to the effects of the exposure.

Several procedural and evidentiary issues concerning General Stafford arose during trial. The Plaintiffs received notice that General Stafford would be called to testify as a defense witness when the witness summary of testimony was submitted by the Defendants at the beginning of the government's case. Court and counsel withdrew to court chambers to discuss the testimony of this witness and others. Plaintiffs requested the medical records of the witness be produced if in fact the witnesses were to testify. The court merely agreed that this would make sense. No order for production ever issued.

When General Stafford arrived to testify, he was allowed to take the witness stand immediately. This was in deference to the busy schedule of the witness. Prior to commencing examination, Plaintiffs' counsel addressed their concerns that General Stafford had not brought his medical records. The court determined that the witness could testify as to what he understood as to the present condition of his health. At one point in the testimony, Plaintiffs' counsel objected to what they considered to be an interpretation by the General of his physical examination. The following dialogue occurred:

MR. KAMAS: Your Honor, we are goint [sic] to object to this. We know the Court ordered him to bring those physicals with him and he did not. I object to him interpreting his physical examination. He's not a doctor.

THE COURT: It is for the jury to know when I was apprised that this gentleman would come on, I think about the time Dr. Daum had suggested that review of his--the witnesses records might reveal some pathology, I did suggest then and require that if we are going to have the witness on and allude to his medical condition that he should have his records. I have learn [sic] today that he is coming and he doesn't have his record and I'm sure through no fault of his own. They are at NASA; and in light of that, permitted of course the witness to testify as to whatever else we have. As a consequence I'm not going not going [sic] to let the General testify what is his diagnosis of such, but last question is to your knowledge, General, do you have any problem is a fair question and he can answer.

Q That's why I phrased it that way, Your Honor.

THE COURT: Your overruled, Mr. Kamas?

A Your Honor, when you finish the physical you have a complete debriefing as to what your cardiovascular function, pulmonary function, any neurologic efforts and any neurologic abnormality, sir, and I have been completely normal. In other words, the doctor team that examines me has briefed me each time and I have been perfectly normal. Been no abnormalities, sir. That was their evaluation of me and my medical records are all at Houston. I was not aware that I was supposed to go down and get them.

(Vol. 52, p. 2852-53).

The court allowed the testimony with a cautionary statement to the jury explaining the absence of the medical records and how that must restrict the testimony of the General. Our close reading of the transcript indicates full and complete cross exaamination of General Stafford. We reject the contention that the absence of the records denied Plaintiffs adequate cross examination.

On another related point, Plaintiffs tendered a jury instruction to the effect that if a party has failed to offer evidence or produce witnesses, you may infer the evidence would have been adverse. The instruction was primarily directed to the failure to produce the medical records of General Stafford. The instruction was refused by the trial court. The court determined that the Plaintiffs had sufficient notice of the testimony and an adequate advance summary of the testimony of the witness. No prejudice resulted from the refusal of the instruction.

An analogy to well settled principles of criminal law regarding the effect of lost or destroyed evidence is instructive. Courts approach the problem by evaluating the culpability of the party in the loss of the evidence and the significance of that evidence. United States v. Grammatikos, 633 F.2d 1013 (2d Cir.1980); United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971). Courts also examine all circumstances of the case to determine if bad faith or intentional destruction of evidence occurred. United States v. Beathune, 527 F.2d 696 (10th Cir.1975), cert. denied, 425 U.S. 996, 96 S.Ct. 2211, 48 L.Ed.2d 821 (1976).

Although not dealing with lost or destroyed...

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