Loughan v. Firestone Tire & Rubber Co.

• Decision Date: 10 January 1985
• Docket Number: 83-5520,Nos. 83-5189,s. 83-5189
• Citation: 749 F.2d 1519
• Parties: , 17 Fed. R. Evid. Serv. 141 John F. LOUGHAN, Plaintiff-Appellant, v. FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellee. John F. LOUGHAN, Plaintiff-Appellant, Cross-Appellee, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1519

749 F.2d 1519

40 Fed.R.Serv.2d 1243, 17 Fed. R. Evid. Serv. 141

John F. LOUGHAN, Plaintiff-Appellant, v. FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellee.

John F. LOUGHAN, Plaintiff-Appellant, Cross-Appellee, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant-Appellee,

Cross-Appellant.

Nos. 83-5189, 83-5520.

United States Court of Appeals Eleventh Circuit.

Jan. 10, 1985.

Richard C. Alkire, Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., Marshall I. Nurenberg, Harlan M. Gordon, Joel Levin, Cleveland, Ohio, Ronald Payne, Fort Lauderdale, Fla., for Loughan.

G. William Bissett, Preddy, Kutner & Hardy, Miami, Fla., Paul Michael Pohl, Cleveland, Ohio, for Firestone Tire & Rubber Co.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK ^*, District Judge.

HATCHETT, Circuit Judge:

In these consolidated appeals, we review the admissibility of habit evidence pursuant to Rule 406, Federal Rules of Evidence, and other claims of error arising out of this personal injury diversity case. We affirm.

Facts

On July 24, 1974, John F. Loughan, the appellant, while employed as a tire mechanic by Slutz-Seiberling Tire Company in Fort Lauderdale, Florida, was mounting and dismounting a Firestone multi-piece rim wheel assembly to a trailer axle. Loughan sustained injuries when, in the process of remounting, a part of the three part rim wheel assembly separated with explosive force, striking Loughan in the head.

Firestone manufactured two product lines of multi-piece rim wheel assemblies. One line, the 20 X 7.33 VR system, included three parts: a 7.33 VR rim base, a 7.33 VR side ring, and a 7.33 VR lock ring. The other line, a 20 X 7.5 R5? system, included three parts: a 7.5 R5? rim base, a 7.5 R5? lock ring, and a 7.5 R5? side ring. While the component parts of these two product lines were not initially intended to be interchanged, after years of production and usage, situations arose whereby the 7.33 VR side and lock rings would be placed together with 7.5 R5? rim bases. In the trade, this was known as a "mismatch," which is involved in the present action.

Loughan asserts that the parts were serviceable and properly reassembled when he mounted the tire on the axle. He claims that the separation resulted from the inherent instability of the product, which constituted a design defect. Firestone contends that the separation was due to a lack of serviceability of the parts or Loughan's improper reassembly.

Loughan brought this diversity personal injury action against Firestone Tire and Rubber Company (Firestone), appellee, asserting theories of negligence and strict liability in tort for the defective design of the multi-piece truck wheel components. After granting Firestone's motion for a directed verdict on the issue of warning, the district court submitted the remainder of the case to the jury, which returned a special verdict in favor of Firestone. Loughan asserts that the district court committed reversible error in admitting into evidence prior instances of Loughan's drinking of alcoholic beverages. The district court held that the evidence of Loughan's drinking was sufficiently regular to constitute habit evidence admissible pursuant to Federal Rule of Evidence 406. At the close of the trial, the district court presented the jury with special verdict interrogatories. The first question was:

Do you unanimously find by a preponderance of the evidence that if a 20 X 7.33 VR lock and side ring combination in serviceable condition is properly mounted on the 20 X 7.5 R5? rim base which is the subject of this lawsuit that the result is a potentially unstable and dangerous assembly which may forceably separate?

The jury answered this special verdict in the negative; consequently, it made no other determinations. Loughan asserts that his credibility was crucial to the outcome of this case, and that he was prejudiced by the evidence pertaining to his drinking.

Issues

On this appeal, we consider: (1) whether the district court erred in admitting evidence of Loughan's drinking and previous safety rule violations; (2) whether the district court erred in granting Firestone's motion for directed verdict on the issue of duty to warn; (3) whether the district court abused its discretion in failing to permit Loughan to amend his complaint; and (4) whether the district court erred in its assessment of costs.

Discussion

An analysis of the admissibility of evidence begins with an examination of the purposes for which the evidence is proffered. The record in this case demonstrates Firestone's intent to establish that Loughan's faculties were impaired due to his consumption of alcoholic beverages at the time of the accident. Such evidence was deemed relevant to support Firestone's defense of assumption of risks and the apportionment of liability under Florida's comparative negligence standard. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Loughan's capacities, both physical and mental, were critical to development of Firestone's arguments.

Our determination of whether the references to Loughan's drinking introduced by the defendant represents evidence admissible to prove habit begins with a review of the Fifth Circuit's decision in Reyes v. Missouri Railroad Co., 589 F.2d 791 (5th Cir.1979). In Reyes, a Missouri Pacific railroad train ran over Joel Reyes as he lay on the railroad tracks. Reyes sued the railroad alleging negligence on the part of the railroad's employees in failing to discover him as he lay on the tracks. The district court permitted the railroad to support its defense of contributory negligence by introducing into evidence Reyes' four prior misdemeanor convictions for public intoxication.

The Fifth Circuit reversed the district court and held that the four prior convictions for intoxication were inadmissible under Federal Rule of Evidence 404. The evidence was inadmissible because it was proffered to prove that Reyes acted in conformity with his character on the night of the accident; the court held that the four convictions failed to constitute habit evidence. Reyes, 589 F.2d at 792-94. The court stated: "Although a precise formula cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit, 'adequacy of sampling and uniformity of response' are controlling considerations." Reyes, 589 F.2d at 795 (quoting Notes of Advisory Committee on Proposed Rules, Fed.R.Evid. 406, 28 U.S.C.A. at p. 153). See also United States v. Holman, 680 F.2d 1340, 1351 (11th Cir.1982).

Loughan asserts that evidence pertaining to his drinking is comparable to the inadmissible evidence in Reyes relating to prior misdemeanor convictions for public intoxication. In Reyes, the court found that four prior convictions for public intoxication spanning a three and one-half year period are of insufficient regularity to rise to the level of "habit" evidence. Reyes at 795. Loughan argues that likewise, testimony from Thompson, Loughan's former employer between 1969 and 1971, was too remote in time and insufficient to establish Loughan's regular routine at the time of the accident in 1974. In Thompson's deposition which was read into evidence, he stated that he fired Loughan because of his drinking. He enumerated the indications that Loughan drank, including Loughan's slurred speech, wobbly walk, alcoholic breath, and complaints from customers. Thompson also testified that Loughan's reputation in the community was a "happy, easy-to-get-along-with guy, but he drank too much." Loughan points out that Thompson's position waivered in his assertions of certainty pertaining to the frequency of Loughan's consumption of alcoholic beverages.

Firestone relied on three separate sources to establish Loughan's habit of drinking between 1968 and July 24, 1974, the date of the accident. Testimony from Thompson, Loughan's previous employer, Orr, Loughan's supervisor, and Loughan himself supports the district court's admission into evidence proof establishing Loughan's drinking habit pursuant to Federal Rule of Evidence 406.

Prior to admitting testimony of Loughan's drinking, the district court discussed with counsel admission of the evidence in light of the Reyes decision and rule 406. The court distinguished the inadmissible evidence in Reyes from the evidence introduced by Firestone. The court stated that in Reyes the evidence consisted of four particular incidents; whereas, Firestone offered evidence of Loughan's drinking over an extended period of time, coupled with evidence of Loughan's regular practice of carrying a cooler of beer at or about the time of the accident. The district court relied on the cumulative effect of the evidence in measuring its sufficiency to establish a drinking habit under rule 406.

Evidence adduced from three sources, taken together, demonstrates a uniform pattern of behavior. Loughan admitted that he carried a cooler of beer on his truck while employed by Slutz and that he would drink beer at some time between the hours of 9 a.m. and 5 p.m. Orr, Loughan's supervisor at Slutz, testified that Loughan routinely carried a cooler of beer on his truck and that he was in the habit of drinking on the job. Orr stated that complaints had been made by customers regarding Loughan's drinking while working on their equipment and that Loughan "normally" had something to drink in the early morning hours. Thompson, Loughan's former employer, further corroborated Loughan's habit when he testified that he fired Loughan because, based on his general observations and complaints from customers, he believed Loughan drank beer on the job. Thompson's observations of Loughan while under his employ between 1969 and 1971 are consistent with Orr's testimony regarding Loughan's behavior in Florida between 1971 and 1974. These recounts establish a pattern of drinking over a period of time.

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