Lewy v. Remington Arms Co., Inc.

Decision Date14 March 1988
Docket NumberNo. 86-2215,86-2215
Citation836 F.2d 1104
Parties, 24 Fed. R. Evid. Serv. 516, Prod.Liab.Rep.(CCH)P 11,662 Evelyn and Jack LEWY, Appellees, v. REMINGTON ARMS CO., INC., Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Jack Headley, John W. Shaw, Kansas City, Mo., for appellant.

William H. McDonald, Richard C. Miller, Springfield, Mo., for appellees.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Remington appeals from a final judgment entered by the district court on a jury verdict awarding Evelyn Lewy $20,000 in compensatory damages and $400,000 in punitive damages in this products liability suit. For the reasons stated below we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On November 14, 1982, Mike Lewy went deer hunting on the family land where he and his parents, Evelyn and Jack Lewy, lived. He returned home around noon and entered his basement living quarters, placing his loaded Remington Model 700 bolt-action center fire 30.06 rifle (M700) on a couch. Prior to going to bed at around 10:30 that evening, Mike remembered the loaded rifle and decided to unload it. Mike pointed the rifle toward the ceiling and proceeded to unload it. The design of the rifle required the safety to be moved to the fire position in order to lift the bolt handle to eject a chambered cartridge. When Mike placed the safety on the fire position the rifle discharged and the bullet penetrated the ceiling striking his mother in the upper left leg while she was seated in a living room chair. Mrs. Lewy required hospitalization for slightly more than a month, but she has now apparently recovered from the accident.

Mrs. Lewy and her husband filed suit against Remington Arms and the K-Mart Corporation for damages, alleging three separate theories of liability: strict liability--design defect, strict liability--failure to warn, and negligent failure to warn. The Lewys alleged two design defects: 1) the bolt lock feature which required the rifle to be in the fire position when unloading and 2) the fire control mechanism which is susceptible to firing on release of the safety (FSR). Evelyn Lewy claimed damages for personal injuries and Jack Lewy claimed damages for loss of consortium. The jury returned a verdict in favor of the Lewys on all three theories of liability. Evelyn Lewy was awarded $20,000 in compensatory damages and $400,000 in punitive damages while Jack Lewy was not awarded monetary damages.

II. DISCUSSION

Remington raises several arguments on appeal: 1) the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict on the issue of punitive damages; 2) the trial court erred in admitting evidence regarding similar incidents involving other Model 700 rifles; 3) the trial court erred in allowing evidence concerning the Model 600 rifle; and 4) a litany of errors which occurred during the trial had the cumulative effect of depriving Remington of a fair trial. We will address the arguments in order beginning with the issue of punitive damages.

A. Punitive Damages

Remington argues that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict on the issue of punitive damages. Remington argues that the evidence was insufficient as a matter of law to submit the punitive damages claim to the jury on either the defective design or failure to warn theories because the Lewys did not prove that Remington acted with conscious disregard for the safety of others.

The standard for granting a motion for a directed verdict, under both federal and Missouri state law, is whether the evidence, when viewed in the light most favorable to the nonmoving party, is such that reasonable persons could only conclude that the movant should prevail. Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1336 (8th Cir.1985) (Hale I ). This standard is the same for the granting of a judgment notwithstanding the verdict. Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 936 (8th Cir.1987) (Hale II ). We hold that the district court did not err in denying Remington's motions.

Because we hold, infra, that the trial court improperly allowed evidence concerning the Model 600 Rifle, we will not consider this evidence when reviewing the record to determine whether there was sufficient evidence to submit the issue of punitive damages to the jury.

Under Missouri law a plaintiff may recover punitive damages if the defendant acts with "complete indifference to or conscious disregard for the safety of others." Roth v. Black & Decker, 737 F.2d 779, 782 (8th Cir.1984); Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 397 (Mo. banc 1987); Racer v. Utterman, 629 S.W.2d 387, 396 (Mo.App.1981), appeal dismissed, cert. denied sub nom. Racer v. Johnson & Johnson, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982).

We hold that there was sufficient evidence from which the jury could find that Remington knew the M700 was dangerous. The following evidence was before the jury: complaints from customers and gunsmiths that the Model 700 would fire upon release of safety, some of these complaints dating back as far as the early 1970s; 1 Remington's own internal documents show that complaints were received more than two years before the Lewy rifle was produced; Remington created a Product Safety Subcommittee to evaluate M700 complaints and on two occasions decided against recalling the M700; and Remington responded to every customer complaint with a form letter that stated that they were unable to duplicate the problem, that the customer must have inadvertently pulled the trigger and that Remington could not assume liability for the discharge.

We believe that in viewing this evidence, and permissible inferences, in the light most favorable to the Lewys a jury could reasonably conclude that Remington was acting with conscious disregard for the safety of others. Remington maintains that their actions in investigating and responding to customer complaints and in creating the Product Safety Subcommittee to study the customer complaints reflect their good faith and sincerity in dealing with the M700. However, another permissible view to be drawn from all of this evidence may be that Remington was merely "gearing up" for a second round of litigation similar to the litigation involving the M600 which resulted in the ultimate recall of the M600. Remington's Product Safety Subcommittee concluded that of approximately two million M700s held by the public about 20,000 of them may have a potential defect. 2 A recall was not pursued because of the relatively small number of rifles that may have the defective condition. See, e.g., Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d 613, 620 (8th Cir.1983) ("[I]n determining whether a manufacturer has a duty to warn, courts inquire whether the manufacturer knew that there were even a relatively few persons who could not use its product without serious injury, and whether a proper warning would have helped prevent harm to them."). Thus, the jury may have concluded that rather than suffer the expense of a recall, Remington would rather take their chances that the 20,000 potentially dangerous M700 rifles held by the public will not cause an accident. Such a view, if true, would certainly establish that Remington acted with conscious disregard for the safety of others.

B. Similar incidents involving other Remington Model 700 Rifles

Remington next argues that the district court erroneously admitted evidence of other Model 700s which were claimed to have discharged when the safety was placed in the fire position. We disagree.

In order to be admissible a proper foundation must be laid showing that the other incidents involving a Model 700 discharging on release of the safety occurred under circumstances substantially similar to the circumstances surrounding the discharge of the Lewy rifle. Hale II, 820 F.2d at 934; Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1534 (10th Cir.1986). The Lewys laid an adequate foundation for admission of the related incidents involving the Model 700. See, e.g., R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266, 275 (8th Cir.1985).

The Lewys laid a foundation which established that the Model 700 evidence introduced was substantially similar to the Lewy Model 700. The Lewys established substantial similarity in both manufacture and defect primarily from records maintained by Remington. Remington prepared Gun Examination Reports (GERs) for every Model 700 which was returned to Remington because of customer complaints that the rifle fired on release of safety. Each report contains a statement of the customer's complaint and the circumstances relating to the alleged FSR. These GERs, as well as the other evidence supporting them, sufficiently established the foundation for the admission of the M700 evidence. In addition to the GERs, the Lewys introduced customer complaint letters, responsive correspondence prepared by Remington, and depositions and live testimony of some of the customers who complained to Remington.

It should also be noted that the district court did not allow the Lewys to admit all M700 evidence carte blanche. In fact the district court specifically excluded any evidence of M700 discharges that may have resulted from other causes unrelated to the alleged defect in the Lewy rifle.

On remand, once the evidence is admitted Remington remains free to argue to the jury that the evidence is not persuasive by pointing out the dissimilarities in the M700 evidence and the Lewy rifle. Kehm, 724 F.2d at 626.

Remington also argues that the evidence regarding other Model 700s is irrelevant. " 'Relevant evidence' means evidence having...

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