Orth v. Emerson Elec. Co., White-Rodgers Div., WHITE-RODGERS

Decision Date24 November 1992
Docket NumberNo. 91-3283,WHITE-RODGERS,91-3283
Citation980 F.2d 632
Parties36 Fed. R. Evid. Serv. 1532, Prod.Liab.Rep. (CCH) P 13,370 Robert E. ORTH and Connie A. Orth, Plaintiffs-Appellees, v. EMERSON ELECTRIC COMPANY,DIVISION, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

George W. Flynn of Cosgrove, Flynn, Gaskins & Haskell, Minneapolis, Minn. (Jim H. Goering of Foulston & Siefkin, Wichita, Kan., with him on the briefs), for defendant-appellant.

George F. Farrell, Jr., Topeka, Kan. (James E. Benfer, III, of McCullough, Wareheim & LaBunker, Topeka, Kan., with him on the briefs), for plaintiffs-appellees.

Before ANDERSON, MCWILLIAMS, and GIBSON, * Circuit Judges.

ANDERSON, Circuit Judge.

This is a diversity products liability case arising from the explosion of a propane furnace in a mobile home owned by the plaintiffs/appellees, Robert and Connie Orth. The jury awarded the Orths $567,493.45 against the defendant, Emerson We hold that the testimony of the Orths' expert witness, Dr. Frank Fowler, was properly admitted since it was based on known facts, together with his experience and knowledge of causation factors. His conclusions as to causation were rational. Therefore, the evidence was sufficient to sustain the jury's verdict. We also hold that the district court did not abuse its discretion in instructing the jury to disregard any reference to the Orths' settlement with the RegO Company. Accordingly, we AFFIRM.

                Electric Company, White-Rodgers Division ("White-Rodgers"), for injuries they suffered in the explosion.   White-Rodgers appeals from the district court's denial of its motion for judgment notwithstanding the verdict or for a new trial, contending that the evidence was insufficient to support a verdict that its product, a safety valve, was defective or the cause of the explosion.   Specifically, it claims that the Orths' expert witness improperly drew conclusions from circumstantial evidence and based his opinion on "a series of unsupported and/or erroneous assumptions."   Brief of Appellant at 39.   White-Rodgers also contends that the district court committed reversible error when it instructed the jury, sua sponte, regarding the relevance of the Orths' settlement with another defendant, RegO Company

On the night of February 15, 1987, a propane explosion and fire occurred in the mobile home of plaintiffs Robert and Connie Orth. The Orths had gone to bed at approximately 10:00 p.m. About an hour later, they were awakened by their son, who said he heard a strange noise in the utility room where the furnace was located. When Mr. Orth went into the utility room, he heard what he described at trial as a scraping noise coming from inside the furnace. When he reached up to turn off the electrical power switch, an explosion occurred, and fire engulfed both Mr. Orth and his wife, who was standing approximately four feet behind him in the kitchen adjacent to the utility room.

The furnace installed in the Orths' mobile home is what the industry calls a "sealed combustion" appliance. These appliances are well-suited to mobile homes because the combustion chamber, where the gas and air are mixed, is isolated from the residence. The system operates on familiar principles: A large squirrel-cage fan draws cool air from the residence across the heat exchanger located near the combustion chamber in the furnace, then blows the heated air through a duct system back into the home.

The Orths' furnace was equipped with a control valve manufactured by White-Rodgers. The purpose of this valve is to control the flow of propane into the combustion chamber of the furnace to fuel both the pilot light and the main burner. The furnace is designed so that the pilot light remains on at all times. The White-Rodgers control valve contains a safety shut-off device ("the safety valve") designed to prevent the flow of propane into the combustion chamber if the pilot light is not burning. When the pilot light is on, it heats an adjacent thermocouple which sends an electrical signal to the safety valve which causes it to remain open. When the safety valve is open, propane flows through the control valve into the combustion chamber where it is ignited at the main burner. If the pilot light is out, the unheated thermocouple does not signal the safety valve, and it remains closed so that propane cannot flow into the combustion chamber.

The evidence in this case indicates that, on the night of the accident, the pilot light in the Orths' furnace had gone out. At trial, the Orths' expert witness, Dr. Frank Fowler, testified that the scraping noise the Orths heard immediately prior to the explosion was the booster fan rubbing against its housing. He theorized that, as a result of contact with the housing, the fan was operating at only half its normal speed, resulting in an air/gas ratio too rich in propane to keep the pilot light ignited.

The evidence offered by Dr. Fowler further indicates that the White-Rodgers safety valve did not close when the pilot light went out. All parties agree that, upon Thus, according Dr. Fowler, the booster fan rotated too slowly to provide adequate air to keep the pilot light ignited, and when the pilot light went out, the malfunction of the safety valve permitted propane to flow into the combustion chamber and seep out of the furnace into the residence, thereby causing the explosion and fire.

                post-accident examination, the safety valve was found to be in an open position.   Dr. Fowler testified that it was his opinion that the safety valve malfunctioned due to a manufacturing defect which introduced debris or a foreign substance into the safety valve, thereby preventing it from closing and allowing propane gas to flow into the combustion chamber when the pilot light was out.   Additionally, an examination of the inspection panel in front of the furnace revealed that a portion of the sealing material around the back side of the panel was blackened with carbon or soot.   According to Dr. Fowler, this discoloration indicated that the inspection panel had not properly sealed, allowing propane which had accumulated in the combustion chamber to pass through the panel and into the Orths' home

At trial, White-Rodgers repeatedly objected to the testimony of Dr. Frank Fowler on the ground that his conclusions regarding the speed of the booster fan and the defect of the safety valve lacked foundation. 1 These objections were overruled. At the close of the evidence, White-Rodgers moved for a directed verdict, arguing that there was "no showing of credible evidence on which a jury could find the condition of this valve in any way caused or contributed to the accident." Appendix to Appellant's Brief, Vol. 2 at B000263. The motion was denied, and the jury returned a verdict in favor of the Orths.

In addition to its claim that there was insufficient evidence upon which to base causation in this case, White-Rodgers alleges that the district court erred in advising the jury, sua sponte, that RegO Company's settlement with the Orths was not relevant. Facts surrounding the court's ruling will precede our discussion of this issue, infra, Part B.

A. Sufficiency of Evidence--Expert Testimony

White-Rodgers argues that the lack of any competent evidence on the elements required for manufacturer's product liability under Kansas law mandates reversal of the district court's denial of its motion for judgment n.o.v. Although we apply the substantive law of Kansas in this diversity case, federal law governs our determination of whether the court properly denied the motion for judgment n.o.v. Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988). We review de novo the denial of a motion for judgment n.o.v., applying the same standard of review as that used by the district court. Rajala v. Allied Corp., 919 F.2d 610, 615 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991). That is, we are obligated to inquire " 'whether there is evidence upon which the jury could properly find a verdict for th[e] [nonmoving] party.' " Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.1984) (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524 (1971)). In order to reverse the trial court's decision to deny a motion for judgment n.o.v., we must conclude that "viewed in the light most favorable to the nonmoving party, the evidence and all reasonable inferences to be drawn therefrom point but one way, in favor of the moving party." Mitchell v. Mobil Oil Corp., 896 F.2d 463 467 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990); see also Zimmerman, 848 F.2d at 1051.

Under Kansas law, a plaintiff must prove three elements to recover on a theory of manufacturer's product liability: "(1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time the product left the defendant's control." Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 360 (1983). The plaintiff may prove these elements "inferentially, by either direct or circumstantial evidence." Id.

White-Rodgers claims that the sole evidence presented by the Orths was the expert testimony of Dr. Fowler who, according to White-Rodgers, based his conclusions on a "series of unsupported and/or erroneous assumptions." Brief of Appellant at 39. White-Rodgers specifically objects to Dr. Fowler's use of circumstantial evidence when direct evidence was supposedly available to support his assumptions. In particular, Dr. Fowler's theory that the safety valve malfunctioned as a result of debris located within the safety valve was not based upon direct examination of the valve's interior. No debris was located or examined. As Dr. Fowler testified at trial, "[w]e did not take [the safety valve] apart. Nobody suggested that we take it apart. It...

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