Pandit v. American Honda Motor Co., Inc., 95-3151

• Decision Date: 30 April 1996
• Docket Number: No. 95-3151,95-3151
• Citation: 82 F.3d 376
• Parties: 44 Fed. R. Evid. Serv. 303 Kusum R. PANDIT, Plaintiff-Appellant, and Ganesh S. Pandit, deceased, by and through his Special Administrator, Rejeev S. Pandit, and Lalita Pandit, deceased, by and through her Special Administrator, Rejeev S. Pandit, Plaintiffs, v. AMERICAN HONDA MOTOR CO., INC., Honda Motor Co., Ltd., and Honda R & D Co., Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 376

82 F.3d 376

44 Fed. R. Evid. Serv. 303

Kusum R. PANDIT, Plaintiff-Appellant,

and

Ganesh S. Pandit, deceased, by and through his Special

Administrator, Rejeev S. Pandit, and Lalita

Pandit, deceased, by and through her

Special Administrator, Rejeev

S. Pandit, Plaintiffs, v. AMERICAN HONDA MOTOR CO., INC., Honda Motor Co., Ltd., and Honda R & D Co., Ltd., Defendants-Appellees.

No. 95-3151.

United States Court of Appeals, Tenth Circuit.

April 30, 1996.

Appeal from the United States District Court for the District of Kansas (No. 90-CV-1506); Monti L. Belot, J.

Kenneth G. Gale (David P. Calvert with him on the brief), of Focht, Hughey & Calvert, Wichita, Kansas, for appellant.

Evan A. Douthit, of Douthit Frets Rouse & Gentile, L.L.C., Kansas City, Missouri, (Randall L. Rhodes, of Douthit Frets Rouse & Gentile, L.L.C., Kansas City, Missouri, and Larry A. Withers, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kansas, with him on the brief), for appellees.

Before SEYMOUR, Chief Judge, HOLLOWAY and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Appellant Kusum Pandit was injured when a Honda Accord in which she was a passenger stalled on Interstate 70 and was struck from behind by a Ford Bronco. Appellant sued the driver of the Bronco, American Honda Motor Co., Inc., Honda Motor Co., Ltd., and Honda R & D Co., Ltd. After appellant settled with the driver of the Bronco, she proceeded to trial against the remaining three defendants (collectively appellees) on a strict liability design defect claim, and the jury found in appellees' favor. She appeals three evidentiary rulings. We affirm.

I.

On March 25, 1990, appellant was the front seat passenger in a 1981 Honda Accord driven by her husband, and her brother-in-law and sister-in-law were riding in the back seat. They were crossing western Kansas, traveling east on Interstate 70. According to appellant's husband, at approximately 11:00 p.m., the headlights "twitched" and gradually began to dim. He checked the instrument panel, but none of the warning lights had activated. He mentioned the problem to his brother, and the two men began to look for an exit from the Interstate. The headlights suddenly became so dim that appellant's husband was unable to see the road. He reduced the speed of the Accord and began to pull to the side of the road. The engine stalled, and the charge warning light activated. The car came to a stop in the right-hand lane. His brother suggested they push the Accord onto the shoulder, and appellant's husband got out of the car. Before getting out of the car himself, his brother indicated another vehicle was coming. Appellant's husband took a white plastic bag from under the driver's seat and began waving it in an attempt to attract the oncoming driver's attention, but his efforts were unsuccessful. The oncoming vehicle, a Ford Bronco, struck the Accord, seriously injuring appellant and killing her in-laws.

Appellant sued the driver of the Bronco and appellees on various theories of negligence and strict liability. The driver settled with appellant and her claims against him were dismissed with prejudice. Appellant proceeded against appellees on only a strict liability defective design claim. She contended the Accord's charge warning light system was defectively designed and unreasonably dangerous because the charge light would not illuminate until the alternator was almost completely disabled. She alleged the alternator was capable of producing a partial charge sufficient to prevent the warning light from activating but insufficient to supply the battery with enough charge to operate the headlights and the fuel pump. The engine cannot run without the fuel pump. She argued the system was defective because it did not detect the reduced output and, as a result, it did not warn the driver about an imminent dangerous situation.

II.

Appellant argues the court erred by (A) admitting evidence of the lack of prior similar claims, (B) admitting evidence of three tests conducted by one of appellees' experts, and (C) excluding excerpts of a deposition she offered as rebuttal.

A.

The court allowed appellees to cross-examine appellant's expert witnesses about their knowledge of prior similar claims and to question one of their own expert witnesses about the absence of prior similar claims. ¹ The parties filed trial briefs in which they discussed the admissibility of evidence regarding the lack of prior similar claims. Appellees' append. 4-5 (appellees' trial brief); appellant's append. I at 51-57 (appellant's supplemental trial brief). The court first addressed the question when appellant requested that appellees be prevented from raising the lack of prior claims in their opening statement. Appellant's append. I at 233-237. The court assented and ordered appellees to refrain from raising the issue in their opening. Id. at 236. The court returned to the question immediately before appellant's direct examination of Dr. Ward Jewell, one of her expert witnesses. Id. at 279-88. After a brief hearing, the court allowed appellees to cross-examine Dr. Jewell about his knowledge of the existence of similar claims. Id. at 282, 288. Without a contemporaneous objection by appellant, appellees cross-examined both of appellant's experts about their knowledge of the existence of similar claims. Appellees' append. at 160-61, 170. During the defense case-in-chief, appellees explicitly asked Robert Scholke, a product investigator for Honda North America and one of appellees' expert witnesses, about the existence of prior similar claims against Honda. Id. at 286. Additionally, Joseph Kinderman, another of appellees' experts, testified that he did not believe the Accord's warning system was defectively designed because many automobiles contained the system and he had heard of no similar complaints. Appellant's append. III at 656-57. Appellant did not make a contemporaneous objection to the questions asked Scholke or to the testimony given by Kinderman.

We review evidentiary rulings for abuse of discretion. Boughton v. Cotter Corp., 65 F.3d 823, 832 (10th Cir.1995). "Under the abuse of discretion standard, a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. (quoting McEwen v. City of Norman, Oklahoma, 926 F.2d 1539, 1553 (10th Cir.1991)). However, if the complaining party fails to make a contemporaneous objection, we determine only if the ruling was plain error. Fed.R.Evid. 103(d); McEwen, 926 F.2d at 1545.

Appellees contend appellant did not object when they elicited testimony about the lack of prior claims. They argue waiver and suggest we may review only for plain error. A three-part test determines whether a party must renew a motion in limine by a contemporaneous objection at trial to preserve an issue for appeal. Green Const. Co. v. Kansas Power & Light Co., 1 F.3d 1005, 1013 (10th Cir.1993) (citing United States v. Mejia-Alarcon, 995 F.2d 982, 987 (10th Cir.) (establishing the rule), cert. denied --- U.S. ----, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993)). To overcome the claim of waiver for failure to contemporaneously object, we must satisfy ourselves that (1) the matter was adequately presented to the district court; (2) the issue was of a type that can be finally decided prior to trial; and (3) the court's ruling was definitive. Id. All three elements are satisfied here: the parties argued the question in their trial briefs, before appellees' opening, and again before appellees' cross-examination; as presented by appellant, the question involved a general legal issue which was capable of decision prior to trial; and the court addressed the issue definitively and in detail, appellant's append. I at 279-88. We reject appellees' waiver argument and turn to the merits of appellant's first issue.

We have held that evidence of similar accidents is admissible in a products liability case if the proponent provides a proper predicate. Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir.1988); Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir.1987); Rexrode v. American Laundry Press Co., 674 F.2d 826, 829 n. 9 (10th Cir.), cert. denied 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982). This court has not addressed the converse--whether the lack of prior similar accidents is likewise admissible. Other courts and commentators generally agree that evidence of the lack of similar accidents is relevant to show (1) absence of the defect or other condition alleged, (2) lack of a causal relationship between the injury and the defect or condition charged, and (3) nonexistence of an unduly dangerous situation. See, e.g., Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9-10 (1st Cir.1994); Hines v. Joy Mfg. Co., 850 F.2d 1146, 1152 (6th Cir.1988); Sturm v. Clark Equipment Co., 547 F.Supp. 144, 145 (W.D.Mo.1982), aff'd 732 F.2d 161 (8th Cir.1984); 1 McCormick on Evidence, § 200, pp. 850-51 (John W. Strong 4th ed. 1992). Cf. Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994) (upholding exclusion of testimony because foundation lacking and discussing proper foundation); Thomas R. Mulia, Annotation, Products Liability: Admissibility of Evidence of Absence of Other Accidents, 51 A.L.R. 4th 1186 (1987). We believe this approach, which is supported by the greater weight of persuasive authority, is the better reasoned view. Accordingly, we conclude that evidence of the absence of similar accidents or claims is admissible as long as the proponent provides adequate foundation. To the extent appellant argues evidence of lack of prior claims is per se inadmissible to prove defective design, her argument is without merit.

Appellant also argues the evidence lacked adequate foundation. Specifically, she contends appellees failed to show "substantial similarity"...