Keller Industries v. Volk, 93-0754

• Citation: 657 So.2d 1200
• Decision Date: 21 June 1995
• Docket Number: No. 93-0754,93-0754
• Parties: 20 Fla. L. Weekly D1460, Prod.Liab.Rep. (CCH) P 14,275 KELLER INDUSTRIES, Appellant/Cross-Appellee, v. LeNora VOLK and John Volk, Jr., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1200

657 So.2d 1200

20 Fla. L. Weekly D1460, Prod.Liab.Rep. (CCH) P 14,275

KELLER INDUSTRIES, Appellant/Cross-Appellee, v. LeNora VOLK and John Volk, Jr., Appellees/Cross-Appellants.

No. 93-0754.

District Court of Appeal of Florida Fourth District.

June 21, 1995.

Rehearing, Rehearing En Banc and Clarification Denied Aug. 17, 1995.

Robert H. Schwartz of Gunther & Whitaker, P.A., Fort Lauderdale, for appellant/cross-appellee.

Elliot H. Scherker and Arthur J. England, Jr., of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, and Dianne J. Weaver of Weaver, Kuvin, Weaver & Lipton, P.A., Fort Lauderdale, for appellees/cross-appellants.

GLICKSTEIN, Judge.

This is an appeal by defendant from an adverse final judgment and from the trial court's order denying its motion for new trial. Plaintiffs cross-appeal the final judgment. We reverse and remand for new trial on the main appeal, but find no error on the cross-appeal and affirm as to it.

On October 26, 1986, Mrs. Volk was severely injured when a stepladder manufactured by defendant allegedly collapsed and closed on her lower leg, causing compound fractures of the right fibula, tibia and fibula distal end, with surgery required to reattach the broken bones. This acute injury occasioned a serious bacterial infection in the leg, compelling Mrs. Volk to employ a full-leg cast for almost three years. Mr. and Mrs. Volk sued the manufacturer on the theories of negligence and strict liability. Following a jury verdict, the trial court entered final judgment for Mrs. Volk of $1,415,176.49 and for her husband of $90,000 and denied defendant's motion for new trial. It also denied plaintiffs' motion to enter judgment without reduction for the jury's finding of ten percent comparative negligence.

Unfortunately, the case must be retried because the trial court's ruling concerning one expert witness was unduly exclusionary. We agree with appellees that the trial court's ruling pertaining to Doctor Hyde was correct. Florida Marine Enter. v. Bailey, 632 So.2d 649 (Fla. 4th DCA), rev. denied, 641 So.2d 1345 (Fla.1994). Moreover, as to Mr. Ver Halen, we also agree that the trial court properly excluded his midtrial revelation of how the accident occurred. Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993). However, the trial court went too far in striking all of Mr. Ver Halen's testimony.

Mr. Ver Halen's deposition was first taken by appellees in March 1992. Mr. Ver Halen had no opinion as to how the accident had occurred, but testified extensively concerning his opinion that the accident could not have occurred in the manner suggested by the appellees' expert, Mr. Harrenstein. Additionally, the witness was not asked by appellees' counsel whether the stepladder complied with then governing or accepted standards. When the witness informed counsel that he had relied upon Underwriters Laboratories' (UL) "acceptance file for this product," the following exchange occurred:

Q. ... Have you utilized the UL acceptance report in any fashion in coming to any opinions you're going to give us here today?

A. Yes.

Q. Let's put that aside.

Pull out all the correspondence and put it together, would you? We'll go in categories.

Trial commenced in November 1992 and, during this proceeding, the trial court allowed appellee another opportunity to depose Mr. Ver Halen. Because he had developed midtrial an opinion pertaining to the cause of the accident, the trial court completely excluded Mr. Ver Halen as a witness. Appellant then proffered the following testimony:

Q. What standards do either ANSI or UL apply to a Model 727 Keller ladder that was manufactured in October of 1976?

A. Okay. ANSI 1956 covered stepstools. Particularly, the '72 omits stepstools.

Q. You said 1956?

A. Correct.

The '72 standard omits stepstools. Within the confines of ANSI, you would have to look at the '56 standard.

And in that regard, Underwriters Laboratories continued to include stepstools in their 184 standard for portable metal ladders, and I think it was the third edition that was in effect at the time this particular product came into being, which, I think, has an effective date of something like 1970 or '71.

....

Q. My question was, Mr. Ver Halen: Do you have an opinion as to whether the 727 stepstool that was manufactured in October of 1976 meet all applicable UL codes on the date of its manufacture?

A. It did.

Q. Further, do you have an opinion--You have expressed an opinion that the ANSI codes did not apply to stepstools in 1972.

A. The '72 version of ANSI excluded stepstools.

Q. Assume, hypothetically, that that standard applied, the 1972 ANSI standard.

A. Okay.

Q. Did this ladder also comport to that standard with reference to the spreader bars?

A. Okay. With reference to the spreader bars, yes, it did.

The lone exception where it would not meet that, ANSI at that particular time required 12-inch spacing on steps, which is a variation between stepladders, which stepstools at 9-inch spacing wouldn't met [sic]. ANSI rectified that in the '92 codes.

Q. A subsequent ANSI code bears an effective date of what, the one after 1972?

A. It became effective October of 1982.

Q. Let's assume--and I think I know from the deposition of LeNora Volk--that she purchased the ladder either in late '81 or early '82.

Was the 1982--approved-only 1982 ANSI standard applicable to this ladder either on the date of its manufacture or the date of the sale to Mrs. Volk?

A. It was not effective for the stepstools on either date, if I assume that she purchased it in early '82. The effect date was October of '82, so it would have been late '82.

Q. So my question is: In your opinion, based on your expertise, did that standard, which is a voluntary standard, have any applicability to either the manufacture or the sale date of this particular ladder, Exhibit 4?

A. No.

Q. What about the subsequent UL standard?

A. The subsequent UL standard came into effect in, I believe it was, 1980, and that would have been in effect at the time it was sold not at the time it was manufactured.

Q. In your opinion, does this ladder, Exhibit, comport with the standards in the 1980 UL code as it relates to the spreader bars?

A. Yes, it does.

Q. So, even if it were applicable to the date of sale, it nevertheless met--the ladder nevertheless comported to the standard set out in the UL standard?

A. With regard to the spreader bars?

Q. Spreader bars, yes.

In another important facet of the proffer, Mr. Ver Halen again refuted the causation theory advanced by appellees' expert and explained his reasons for rejecting their position. This proffered testimony was critical to appellant's defense and the trial court erroneously wiped it out after (1) appellees' previous failure to inquire about compliance with standards, (2) the trial court's permitting an additional deposition of Mr. Ver Halen and (3) appellees' knowledge well in advance of Mr. Ver Halen's opinion regarding their expert's testimony. All of this becomes significant in light of the fact that Mr. Ver Halen became appellant's only witness on liability.

A trial court clearly may exercise its discretion in imposing sanctions. Clarke v. Sanders, 363 So.2d 843 (Fla. 4th DCA 1978). In this case, however, the trial court, by excluding the foregoing testimony, engaged in judicial overkill. One of a party's most important due process rights is the right to call witnesses. LoBue v. Travelers Ins. Co., 388 So.2d 1349, 1351 (Fla. 4th DCA 1980), rev. denied sub nom. Burnes v. Stafford-Lobue, 397 So.2d 777 (Fla.1981). A trial court should only exclude witnesses under the most compelling of circumstances. Id.; First Republic Corp. of America v. Hayes, 431 So.2d 624, 626 (Fla. 3d DCA), rev. denied, 441 So.2d 632 (Fla.1983). This is particularly so when the exclusion would be of a party's most important witness. LoBue, 388 So.2d at 1351. Thus, it is critical for the trial court to exercise extreme caution when excluding a party's only witness.

It is plain from the record that the trial court here was upset because of its perception that Mr. Ver Halen had no opinion on the cause of the accident when deposed in March 1992, but after the trial began, he formulated one. Instead of prohibiting him from giving that opinion, the trial court improperly erased him from the proceedings. The trial court could have prevented any prejudice to appellees by barring testimony concerning the cause of the accident, but also could have stopped short of eviscerating appellant's defense by allowing Mr. Ver Halen to otherwise testify.

While there are instances which permit some leeway on remand, such as amendments to pleadings, the dictates of justice demand that we "freeze frame" these proceedings to the extent possible in order to prevent appellant from circumventing the decision of this court and obtaining a second bite of the apple. See Connecticut Gen. Life Ins. Co. v. Dyess, 588 So.2d 1045 (Fla. 5th DCA 1991), rev. denied, 599 So.2d 655 (Fla.1992). Accordingly, the pleadings are to remain unchanged and upon retrial appellant may not utilize Dr. Hyde as a witness nor elicit from Mr. Ver Halen his affirmative opinion regarding causation.

Because the case must be retried, we feel it necessary to discuss the role of pre-accident, postmanufacture remedial measures. In this case, appellants' stepladder was manufactured in 1976. A new design was incorporated in 1982, but the accident did not occur until 1986.

Section 90.407, Florida Statutes (1991), provides:

90.407 Subsequent remedial measures.--Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

(Emphasis added). We have located no Florida case expressly ruling upon the meaning of "event" as applied to a strict liability claim where a change was made after manufacture, but before the...