Jacobson v. Manfredi by Manfredi

• Decision Date: 03 April 1984
• Docket Number: 14267,Nos. 14211,s. 14211
• Parties: Eugene M. JACOBSON, d/b/a Rotometals, Appellant, v. Justin R. MANFREDI, by his natural mother and next friend, Brenda MANFREDI; and Brenda Manfredi, Respondents. Eugene M. JACOBSON, d/b/a Rotometals, Appellant, v. John MANFREDI, Respondent.
• Court: Nevada Supreme Court

Page 251

679 P.2d 251

100 Nev. 226

Eugene M. JACOBSON, d/b/a Rotometals, Appellant, v. Justin R. MANFREDI, by his natural mother and next friend, Brenda MANFREDI; and Brenda Manfredi, Respondents.

Eugene M. JACOBSON, d/b/a Rotometals, Appellant, v. John MANFREDI, Respondent.

Nos. 14211, 14267.

Supreme Court of Nevada.

April 3, 1984.

Cromer, Barker, Michaelson, Gillock & Rawlings and Victor Alan Perry, Reno, for appellant.

Peter Chase Neumann, Reno, Smith & Gamble, Carson City, for respondents.

OPINION

PER CURIAM:

These are consolidated appeals from a judgment upon jury verdicts awarding damages to respondents Justin and Brenda Manfredi, from a judgment granting additur or a new trial limited to damages in favor of Justin Manfredi, and from a judgment notwithstanding the verdict awarding damages to John Manfredi. ¹ For the reasons set forth hereinafter the judgment upon jury verdicts and the judgment granting additur are affirmed, as modified, and the judgment notwithstanding the verdict is vacated and the judgment upon the jury verdict is reinstated.

John Manfredi, who was building a new house for his family, purchased from a local hardware store a four-ounce container of liquid soldering flux manufactured by appellant, Eugene M. Jacobson, who does business as Rotometals. Manfredi testified that he knew the flux was poisonous, was dangerous, should not be swallowed and should not be left where children could reach it. After using the flux to clean and solder copper water pipes, Manfredi nevertheless placed the container on a windowsill. He does not know whether or not he replaced the cap. That evening, Manfredi's wife, Brenda, and their two-year-old son, Justin, made one of their routine visits to the construction site. While Brenda helped Manfredi hang some plasterboard, Justin (who could have removed the container's cap by himself) took the container from the windowsill and drank some flux. The flux contained a high percentage of zinc chloride, which rapidly kills living tissue. Justin cried and then began to cough, spit and vomit. His parents came over and immediately ascertained what had occurred. They rushed Justin home and tried to get him to drink some milk, as the container suggested. After a short time, they decided to take Justin to the local hospital in Hawthorne. From there, Justin was sent by ambulance to a medical center in Reno.

The significant damage to Justin's stomach was massive and almost instantaneous, according to expert medical testimony; damage concluded after twenty or thirty minutes. Four months after the accident, Justin's stomach and upper and lower stomach valves were removed. A small "pouch" was fashioned from a section of the boy's small intestine. The pouch performs only a food-holding function, not any of the other important stomach functions such as food grinding, bacteria elimination, digestion and absorption of vitamin B-12. As a result, Justin must avoid certain foods, eat ten to thirteen small meals each day, have numerous daily bowel movements, and receive vitamin B-12 shots. Justin's growth has been slowed substantially and he is likely to age prematurely. Due to the loss of his esophageal valve, Justin refluxes food and saliva and risks aspirating food into his lungs. As a result of the loss of his pyloric valve, Justin suffers "dumping syndrome," which refers to his digestive system's inability to absorb nutrients adequately. Justin's condition is permanent and without remedy.

Justin and his mother brought an action based on negligence and strict products liability theories against Rotometals as manufacturer of the soldering flux and the local hardware store. ² Rotometals sued John Manfredi for indemnification based on the father's negligent conduct. John Manfredi then filed a third-party counterclaim against Rotometals.

At the close of trial, the jury returned verdicts awarding Justin Manfredi $200,000.00 and Brenda Manfredi $50,000.00, plus costs and interest. The jury also decided that neither Rotometals nor John Manfredi was entitled to any award in the third-party action, despite the district court's directed verdict in Manfredi's favor. Justin Manfredi then moved for additur. The district court granted him an additur of $650,000.00, plus interest. The court concluded that the damages awarded Justin by the jury's verdict were clearly inadequate and that a new trial limited to the issue of damages would be granted unless the defendant accepted the additur. John Manfredi moved for a judgment notwithstanding the verdict, contending that the jury could not have properly awarded Justin's mother $50,000.00 for her suffering and excluded himself, who suffered the same anguish as a result of Justin's accident. The district court agreed and awarded John Manfredi $50,000.00 also.

Rotometals appeals from the judgment upon jury verdicts in favor of Justin and Brenda Manfredi and from the judgment awarding Justin an additur or, in the alternative, a new trial relating only to damages. (No. 14211.) Rotometals also appeals the judgment notwithstanding the verdict in favor of John Manfredi. (No. 14267.)

The manufacturer's first contention is that the district court abused its discretion by striking its motion for recusation. Rotometals claims that eighteen days before trial it first learned of a working relationship which the district court judge had with both John Manfredi (former Mineral County Juvenile Probation Officer for over three years) and Justin Manfredi's aunt (Mineral County Probation Department secretary for eight years). Twelve days before trial, Rotometals filed its motion for recusation pursuant to NRS 1.235. Respondents Justin and Brenda Manfredi thereupon filed a motion to strike on grounds that the motion was untimely. NRS 1.235 requires that a motion for recusation be filed "not less than 20 days before the date set for trial or hearing of the case." After properly determining that listed exceptions to the twenty-day deadline did not apply, the district court concluded that Rotometals' motion was untimely and granted respondents' motion to strike. We hold that such action did not constitute an abuse of discretion. The manufacturer's argument that it was "surprised" by new facts about John Manfredi's former relationship with the district court judge lacks merit as Rotometals learned of Manfredi's former position during the discovery period. Time limitations are not extended for litigants who knew or should have known the necessary facts at an earlier date. Rademacher v. City of Phoenix, 442 F.Supp. 27, 29 (D.Ariz.1977); Hirschkop v. Virginia State Bar Association, 406 F.Supp. 721 (E.D.Va.1975). Moreover, a judge, especially a judge in a small town, need not disqualify himself merely because he knows one of the parties.

[A judge] must have neighbors, friends, and acquaintances, business and social relations, and be a part of his day and generation. Evidently the ordinary results of such associations and the impressions they create in the mind of the judge are not the "personal bias or prejudice" to which the statute refers.

Ex parte N.K. Fairbank Company, 194 F. 978, 989 (M.D.Ala.1912).

There is no more of a disposition for a judge to rule in favor of an acquaintance or friend because of that fact than there is a disposition for him to rule against an acquaintance or friend because of that fact. The fact of friendship could result in a "leaning over backwards" to maintain impartiality, or it could result in the opposite. But an allegation of friendship, without more, is not sufficient to establish that either is likely to happen....

Without a valid reason for recusal, a judge has a duty not to recuse himself.

Cline v. Sawyer, 600 P.2d 725, 729 (Wyo.1979), aff'd on other grounds, 618 P.2d 144 (Wyo.1980); accord, Ham v. District Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977). The mere allegations that Judge Beko had a prior professional relationship with John Manfredi and a current professional relationship with Justin Manfredi's aunt do not demonstrate judicial biassufficient for us to hold that it was an abuse of discretion to strike appellant's motion for recusation.

Rotometals' second contention is that the district court abused its discretion by admitting evidence relating to subsequent remedial product changes. Rotometals made a pretrial motion in limine to preclude Justin and Brenda Manfredi from introducing any evidence of subsequent changes in labeling or packaging of the product. The motion was denied. The product container from which Justin drank had a widemouthed top and certain label warnings. Subsequent to Justin's accident, the product was marketed in a container with a narrower squirt top, a label providing stronger warnings and a circular providing additional warnings and information. During cross-examination, appellant Jacobson was asked about the feasibility of using a container with a child-proof cap and stronger label warnings; Jacobson readily conceded that such changes could have been made, but he also explained why he believed his widemouthed container was safer than containers with smaller openings from which the product was often poured into unmarked containers wide enough for pipe ends to be dipped into them. Moreover, Rotometals presented evidence that its original label warnings were adequate. At trial, respondents introduced the new container and the circular into evidence. NRS 48.095, patterned after Rule 407 of the Federal Rules of Evidence, excludes evidence of subsequent remedial measures to prove negligence or culpable conduct, unless such evidence is offered to prove another purpose such as feasibility of precautionary measures. ³ In this case the feasibility exception applies because Rotometals contested the utility and safety provided by the original container and labels versus the subsequent product container and labels.

Whether something is feasible relates not only to actual possibility of...