Nelson v. Ford Motor Co., 98-1273
| Decision Date | 29 July 1998 |
| Docket Number | No. 98-1273,98-1273 |
| Parties | Wesley Joseph NELSON, Jr.; Mildred Anne Nelson, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Deborah D. Conklin, Gladstone, MO, argued (Thomas E. Hankins, on the brief), for appellant.
Robert T. Adams, Kansas City, MO, argued (John F. Murphy, on the brief), for appellee.
Before WOLLMAN and MURPHY, Circuit Judges, and DOTY, District Judge 1.
Wesley and Mildred Nelson appeal from the judgment in favor of Ford Motor Company and the denial of their motion for a new trial in this products liability case. After Wesley was injured while using the scissor jack provided with his 1991 Lincoln Town Car, the Nelsons sued Ford for a defective product and the failure to warn. They argue that the district court 2 erred in dismissing their failure to warn claim, in giving an incorrect verdict director, and in making certain evidentiary rulings. We affirm.
On February 5, 1995, Wesley Nelson wanted to change a flat tire on his Town Car which was parked in the garage. He took out the scissor jack provided with the car and used it to raise the wheel area. Instructions on how to operate the jack had been supplied in the owner's manual which included a warning to disable the car's air suspension system before using the jack. A similar warning was printed near the air suspension switch in the trunk, on the spare tire cover, and on the jack. Wesley testified that he knew how to operate a jack based on his experience and so he went forward without reading the instructions or disabling the air system. He positioned the jack "by feel" rather than by looking for the notch on the underbody which had been provided to guide the location of the jack. He then partially raised the jack before loosening the lug nuts, and the car began to fall back off the jack. The wheel well struck him on the right forearm, pushing him to the ground. He later developed physical symptoms which he attributed to the incident, including a strained lower back, a bulging disc, a pinched sciatic nerve, and an increase in blood pressure.
The Nelsons alleged that the jack was defective in that it could not support the weight of the car and that Ford failed to warn adequately of the need to disable the air suspension system prior to jacking the car. The district court dismissed the failure to warn claim before the case went to the jury on the ground that the Nelsons had not produced sufficient evidence to support a verdict in their favor. The claim that the jack was defective was submitted to the jury which found in favor of Ford. The Nelsons moved for a new trial, raising essentially the same points as on this appeal. The district court considered all the points raised in its detailed order denying the motion.
The Nelsons argue that the district court erred by excluding their expert testimony on the adequacy of the warnings Ford provided and by dismissing their failure to warn claim. Since the Nelsons' expert did not express an opinion on the adequacy of the warnings in his deposition or in the report required under Fed.R.Civ.P. 26(a)(2), he was not permitted to offer such an opinion at trial. Fed.R.Civ.P. 37(c)(1). The record also indicates that the expert admitted that he had not talked with Wesley Nelson or read his deposition, had not examined the Nelson car or photographs of it or other Town Cars, was unfamiliar with the content of the warnings provided by Ford, and had not designed warnings or referred to any authorities on the adequacy of warnings. Since the Nelsons failed to produce any admissible evidence to support the failure to warn claim, its dismissal was appropriate. Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 383-84 (8th Cir.1995) Moreover, Wesley Nelson testified that he had not consulted the existing warnings because he thought he knew how to use the jack properly, and it was not shown that modified or additional warnings would likely have prevented the accident. Klugesherz v. American Honda Motor Co., Inc., 929 S.W.2d 811, 814 (Mo.App. E.D.1996).
The Nelsons also claim the district court erred by using Ford's verdict directing jury...
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