Mello v. K-Mart Corp., K-MART
| Decision Date | 04 June 1986 |
| Docket Number | K-MART,No. 85-1614,85-1614 |
| Citation | 792 F.2d 1228 |
| Parties | 21 Fed. R. Evid. Serv. 214 David MELLO and Phyllis Mello, Plaintiffs, Appellants, v.CORPORATION, et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Daniel T. Chabot with whom William J. Griset, Jr. and Latti Associates, Boston Mass., were on brief, for plaintiffs, appellants.
James P. Whitters, III with whom Martha J. Koster, Timothy Q. Feeley and Gaston Snow & Ely Bartlett, Boston, Mass., were on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and MALETZ, * Senior Judge.
In this products liability action applying Tennessee law, plaintiffs-appellants David and Phyllis Mello appeal from judgments entered in favor of defendants-appellees K-Mart Corporation and Shinn Fu of America, Inc., in the United States District Court for the District of Massachusetts. We affirm.
The evidence introduced at the jury trial tended to show the following. On or about November 7, 1982, while vacationing with his family, David Mello purchased a "K-Mart" brand hydraulic jack with a stated lifting capacity of six tons from a K-Mart store in Goodlettsville, Tennessee, in order to do some repair work on his son's car. After Mr. Mello used the jack to raise his son's car, he crawled beneath the vehicle to inspect a loose muffler clamp. While Mr. Mello was underneath the vehicle, the jack collapsed, pinning him beneath the vehicle and causing him substantial injury.
Mr. Mello and his wife Phyllis brought this action in federal district court against K-Mart, the vendor of the jack, and Shinn Fu, the alleged manufacturer of the jack, 1 claiming that the jack failed because it was defectively manufactured with contaminated hydraulic fluid. At the conclusion of plaintiffs' opening statement to the jury, the district court directed a verdict for defendant Shinn Fu. The jury returned a verdict on special interrogatories for defendant K-Mart at the close of trial.
On appeal, plaintiffs argue that the district court committed reversible error in (1) directing a verdict for Shinn Fu; (2) making certain evidentiary rulings over plaintiffs' objection; and (3) instructing the jury. We shall address each of these contentions.
At the conclusion of plaintiffs' opening statement to the jury, defendant Shinn Fu moved for a directed verdict. The district court granted the motion, apparently because of the lack of reference in counsel's opening statement to evidence sufficient to support a finding of liability against Shinn Fu. 2 Plaintiffs argue that this was error, because counsel's opening statement made out a prima facie case of liability against Shinn Fu.
In his opening statement, plaintiffs' counsel said in part,
This case simply involves our claim on behalf of the Mellos that this jack ... was manufactured in Taiwan by both K-Mart and Shinn Fu, and was manufactured in Taiwan with contaminated or dirty hydraulic fluid.
.... Hydraulic fluid is an oil substance and must, as the experts will tell you, be kept absolutely clean from the date of manufacture on through the rest of the use of the product. This is the one technical thing that you will have to consider in this trial, ladies and gentlemen: The need for a clean hydraulic fluid system, and this case turns on the absence of a clean hydraulic system in that jack when it left the factory in Taiwan.
We agree with plaintiffs that the court erred in directing a verdict on the opening statement. Counsel stated that the allegedly defective jack was manufactured by both K-Mart and Shinn Fu, thus sufficiently suggesting a basis for liability against Shinn Fu if the jack as manufactured were found to be defective.
However, the district court's error in directing a verdict for Shinn Fu at the outset of trial was harmless given the jury's conclusion that there was no defect in manufacture. See 28 U.S.C. Sec. 2111 (1982) (); see also Fed.R.Civ.P. 61. At the close of trial, in response to special interrogatories, the jury found that (1) neither K-Mart nor any other company for whose actions K-Mart was legally responsible had negligently manufactured or sold the jack; (2) K-Mart had not breached any implied warranty of merchantability by selling a jack that was defective, dangerous, and therefore not fit for its ordinary purpose; and (3) although K-Mart was, or held itself out as, the manufacturer of the jack, the jack was not in a condition unreasonably dangerous to the user when sold by K-Mart.
These findings, taken together and in context, are consistent only with a determination by the jury that the jack in question was not defective. It follows that even if Shinn Fu were the manufacturer, its early release from the case did not affect the ultimate result, which had to be a finding in Shinn Fu's favor. There is no indication that Shinn Fu's absence prevented plaintiffs from presenting all the evidence they had concerning alleged defects in the jack. No additional evidence on that score, that would have come in had Shinn Fu remained a party, has been called to our attention. We note, moreover, that in its answers to interrogatories, Shinn Fu denied any involvement with the manufacture, design, testing, packaging, distribution, sale or promotion of the six-ton jack purchased by Mr. Mello. Because plaintiffs have not given us any reason to believe that the outcome might have been different if Shinn Fu had remained a party defendant to the action, we see no reason to disturb the district court's directed verdict for Shinn Fu. 3
Plaintiffs contest two evidentiary rulings made by the district court.
During cross-examination of plaintiff David Mello, K-Mart's counsel offered into evidence a letter dated November 26, 1982, from Jim H. Wachter, plaintiffs' former counsel in Tennessee, to Dr. Medka Suwanaawonjse, a doctor who treated Mr. Mello after the accident, requesting a copy of Dr. Suwanaawonjse's medical report. The Wachter letter contained the following description of Mr. Mello's accident:
Mr. and Mrs. Mello have consulted and retained me relating to his Claim for the multiple injuries received by Mr. Mello when a hydraulic jack placed under an auto he was working on, malfunctioned, resulting in the auto coming down on the left upper portion of his body. Mr. Mello was lying on his right side at the time, being in the process of attempting to tighten the muffler brackets. As I recall one of the rear wheels was off the auto for repairs, or whatever.
The Wachter letter was offered in evidence on cross-examination for the purpose of impeaching Mr. Mello's testimony that the left rear wheel was not off the car at the time of the accident, and the district court admitted it with the limiting instruction that it was "being admitted only on the issue of [Mr. Mello's] credibility." Plaintiffs contend that the admission of the Wachter letter for impeachment purposes was improper and prejudicial, because whether the wheel was on or off the car was collateral to the main issues in the litigation. 4
We disagree. Whether the wheel was on or off the car was generally relevant to how the accident happened, and, in particular, to K-Mart's contention that Mr. Mello was contributorily negligent or else had assumed the risk that the jack would collapse. Balancing the letter's probative value against the danger of unfair prejudice, United States v. Pisari, 636 F.2d 855, 858 (1st Cir.1981), we cannot say that the district court abused its discretion in allowing K-Mart to use the Wachter letter for the limited purpose of impeaching Mr. Mello's credibility on this matter. Indeed, at another point in the trial, plaintiffs consented to admission of the Wachter letter as part of Mr. Mello's hospital record.
At trial, plaintiffs sought to place in evidence the depositions of M. Pierre LeClerc, manager of K-Mart's in-house testing laboratory, Vernon Berels, an electronic lab technician for K-Mart, and Robert Bleakly, a senior automotive goods buyer for K-Mart. Plaintiffs' purported purpose in offering the LeClerc and Berels depositions was to show that K-Mart's in-house testing laboratory had never tested for contaminants the hydraulic oil used in the six-ton hydraulic jacks before offering them for sale. The district court excluded the depositions on the ground that plaintiffs had failed to make a threshold showing that any such failure to test for contaminants would amount to negligent testing.
Plaintiffs argue that the jury could have inferred that K-Mart's testing procedures were negligent because (1) two of plaintiffs' experts testified that the allegedly defective jack failed because of contaminated hydraulic fluid; (2) there was testimony that, for the proper operation of a hydraulic jack, it was vitally important that the hydraulic oil be clean and free of contaminants; and (3) the LeClerc and Berels depositions establish that, when K-Mart tested a sample six-ton hydraulic jack of the type purchased by Mr. Mello, K-Mart did not test the hydraulic fluid. We cannot say the district court erred in refusing to hold that this evidence, without more, created a jury question on the issue of negligent testing. First, plaintiffs' evidence would not even have established that the hydraulic fluid in the jacks had not been tested, as testing may have been performed on the jacks at the time of manufacture. Second, even if the evidence did indicate that the hydraulic fluid was not tested, plaintiffs presented nothing to establish either that it would have been reasonable or feasible for K-Mart to test the fluid in each jack, or, in the alternative, that a spot check of the jacks would have indicated a defect in the jack that actually...
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