Petty v. Ideco, Div. of Dresser Industries, Inc.

• Decision Date: 03 June 1985
• Docket Number: No. 83-2763,83-2763
• Citation: 761 F.2d 1146
• Parties: 18 Fed. R. Evid. Serv. 200 Charles PETTY, Plaintiff-Appellant, v. IDECO, a DIVISION OF DRESSER INDUSTRIES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1146

761 F.2d 1146

18 Fed. R. Evid. Serv. 200

Charles PETTY, Plaintiff-Appellant, v. IDECO, a DIVISION OF DRESSER INDUSTRIES, INC., Defendant-Appellee.

No. 83-2763.

United States Court of Appeals Fifth Circuit.

June 3, 1985.

Robert Allen Moore, Barry L. Hart, Odessa, Tex., for plaintiff-appellant.

Cook, Davis & McFall, Richard A. Sheehy, Donald B. McFall, Kent C. Sullivan, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

In this Texas diversity case, ¹ plaintiff Charles Petty sued defendant Ideco a Division of Dresser Industries, Inc. (Ideco), on products liability theories for injuries that he sustained while working on an oil well servicing unit manufactured by Ideco. A jury returned a verdict that Petty take nothing from Ideco, and the district court entered judgment accordingly. On appeal, Petty contends that the trial court erred in admitting into evidence two videotapes prepared by Ideco's expert witness which purported to demonstrate the normal operation of the servicing unit in issue. He also argues that the court improperly excluded evidence of other manufacturers' design of similar units. Petty further asserts that the trial court improperly admitted evidence of Petty's prior criminal history. Petty finally alleges that the court's jury instruction on Texas' substantive products liability law constituted an improper comment on the evidence. Finding no reversible error in the judgment of the trial court, we affirm.

I. BACKGROUND

In October 1980 Charles Petty was employed by Basin Well Service, Inc., of Odessa, Texas, a company that performs general repair work on oil wells. The company owned a "Back-in Rambler" well servicing unit which had been manufactured by Ideco in 1972. The Back-in Rambler is a large truck upon which a derrick and other equipment is mounted. The unit includes a "cathead," or round drum-like winch mounted on the side of the unit. The cathead is used as a hoisting device to lift and lower equipment at a well site. To lift a piece of equipment, the operator of the servicing unit wraps rope around the cathead, which revolves continuously to provide lifting action. The rope runs from the cathead, to a pulley at the top of the rig, to the object being lifted. The control panel for the Back-in Rambler is located near the rear of the unit.

On the day of Petty's accident, he and his crew were lifting a horsehead, which was a part of the pumping unit of the oil well that was being serviced. During this maneuver, Petty's left arm became entangled in a rope line that was wound around the cathead and he was dragged into the rotating winch. As a result, Petty's left arm was avulsed from his body at the mid upper arm.

Petty brought suit against Ideco on products liability theories, alleging defective design of the servicing unit and failure to advise purchasers of the safe manner of using the unit. ² At trial, Petty proceeded on the theory that the unit was defective in its design because it did not have a "kill" switch near the cathead which could have been used to shut off the machine. In defense, Ideco maintained that Petty's injuries were a result of his own negligence in misusing the unit. In response to special interrogatories, the jury found that the well servicing unit was neither defectively designed nor marketed, and that Petty's own negligence was a proximate cause of his injuries.

II. EVIDENTIARY RULINGS

A. Videotapes

At trial, Ideco introduced into evidence two videotapes narrated by its expert witness, Charles Parker, purporting to show the normal operation of the servicing unit. In these tapes, Parker expressed his opinion as to what constituted prudent and safe operation of the unit.

On appeal, Petty contends that the videotapes in effect constituted a pretrial deposition of witness Parker; as such, he maintains that the tapes were improperly admitted because: the testimony was not sworn, plaintiff was given no notice of the "deposition," and there was no showing of exceptional circumstances permitting admission of the tapes given the fact that Parker was present at trial. See Fed.R.Civ.P. 30, 32.

In countering Petty's assertions, Ideco argues that: (1) Petty failed to make a timely objection to the admission of the tapes at trial; (2) the videotapes were a demonstration and the expert's opinions were merely incidental to the main purpose of the tapes; (3) there was no prejudice to Petty since he was permitted to cross-examine Parker at trial; and (4) even if the tapes were improperly admitted, such admission is not reversible error.

Petty had the opportunity to view the videotapes before their introduction by Ideco at trial. Following his viewing of the tapes, Petty requested that the court entertain his objections to their admission out of the presence of the jury. Petty's objections pertained to relevancy, competency of Parker to testify as an expert, and surprise. The trial court treated the objections as a motion in limine, which it denied. In so doing, the court stated: "If you have got some specific objections as the tape is rolling, I will hear them. These tapes can be stopped ... you can cross examine him [Parker]. I will let you voir dire him on his qualifications to testify about how to use that piece of equipment." Record Vol. X at 226. The record shows that Petty wholly failed to renew his objections when the tapes were thereafter shown to the jury.

In order to preserve error for appellate review, a proper objection must be made at trial. Fed.R.Evid. 103(a)(1). Thus, a party whose motion in limine is overruled must renew his objection when the error he sought to prevent is about to occur at trial. Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980); see also Rojas v. Richardson, 703 F.2d 186, 189 (5th Cir.) reh'g granted on other grounds, 713 F.2d 116 (1983). Ideco contends that Petty's failure to renew his objections when the tapes were shown to the jury precludes appellate review. Ideco further urges that since Petty's motion in limine did not raise the specific objections raised on this appeal, our review of plaintiff's claims concerning Fed.R.Civ.P. 30 and 32 is also precluded. See Complete Auto Transit, Inc. v. Wayne Broyles Engineering Corp., 351 F.2d 478, 483 (5th Cir.1965) (since ground on which appellant attacked evidence on appeal was not specifically stated in its objection at trial, error, if any, committed by trial court in overruling such objection was waived by appellant); accord Shingleton v. Armor Velvet Corp., 621 F.2d 180, 183 (5th Cir.1980).

Notwithstanding Petty's failure to preserve the alleged error in the admission of the tapes for appellate review, Fed.R.Evid. 103(d) provides that: "[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court." The "plain error rule" is an extraordinary remedy which is invoked only in exceptional circumstances to avoid a miscarriage of justice. Rojas v. Richardson, 703 F.2d at 190. This Court has defined plain error as error which is "obvious and substantial." Id. (citations omitted). Ultimately, though, the determination rests on the facts of the individual case. Id.

Rule 402 of the Federal Rules of Evidence provides that, with certain specific exceptions, all relevant evidence is admissible. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence." Fed.R.Evid. 401. As noted previously, Ideco's theory of the case was that Petty's injuries were a result of Petty's own negligence in misusing the servicing unit. The videotapes were not offered to reenact the accident, but were presented to show the normal operation of the unit. It cannot be said that they were not germane to disputed issues at trial.

Whether to admit or exclude demonstrative evidence is a matter within the sound and broad discretion of the district court. See Young v. Illinois Central Gulf Railroad Co., 618 F.2d 332, 338 (5th Cir.1980) (motion picture experiment was admissible to show physical possibility of decedent's car being diverted onto railroad track); Sanchez v. Denver & Rio Grande Western Railroad Co., 538 F.2d 304, 305-06 (10th Cir.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977) (motion picture admissible to depict reenactment of accident); Zurzolo v. General Motors Corp., 69 F.R.D. 469, 473 (E.D.Pa.1975) (film admissible to demonstrate principles of physics). Cf. Johnson v. William C. Ellis & Sons Iron Works, 604 F.2d 950, 958 (5th Cir.1979) (motion picture that was cumulative of other evidence was properly excluded), modified, 609 F.2d 820 (1980). Further, evidentiary rulings of the trial court will be left undisturbed unless an abuse of discretion results in substantial prejudice to the rights of a party. Goff v. Continental Oil Co., 678 F.2d 593, 596 (5th Cir.1982). Despite the foregoing, strong arguments could have been advanced against the admission of the tapes at trial.

Those strong arguments were never appropriately advanced, however, because Petty wholly failed to object to the admission of the videotapes at trial. Furthermore, even though the trial court explicitly advised Petty that he would be permitted to stop the tapes at any time to make specific objections, no objections of any nature were forthcoming. Petty here fails to demonstrate any justification for his failure to object to the admission of the videotapes at trial. Being limited to a review of plain error, we have found no such error in the trial court's admission of the videotapes. On this record and under the circumstances described, we cannot say that the trial court abused its discretion in admitting the tapes.

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