Pogor v. Makita U.S.A., Inc., 96-1753

Decision Date30 January 1998
Docket NumberNo. 96-1753,96-1753
Citation135 F.3d 384
PartiesWilliam POGOR and Janet Pogor, Plaintiffs-Appellees, v. MAKITA U.S.A., INC., a New York corporation and Makita Electric Works, Ltd., a Japanese business entity, jointly and severally, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Mary T. Nemeth (argued and briefed), James G. Gross (briefed), Gross, Nemeth & Silverman, Detroit, MI, John A. Cothorn, Meganck & Cothorn, Detroit, MI, for Defendants-Appellants.

Kelly A. Kruse (argued and briefed), Norbert B. Leonard, Leonard, Kruse & Zlatopolsky, Bloomfield Hills, MI, Michael J. Gallagher, Brighton, MI, for Plaintiff-Appellee William Pogor.

Kelly A. Kruse (argued and briefed), Norbert B. Leonard, Leonard, Kruse & Zlatopolsky, Bloomfield Hills, MI, for Plaintiff-Appellee Janet Pogor.

Before: NORRIS and BATCHELDER, Circuit Judges; ALDRICH, District Judge. *

OPINION

ALAN E. NORRIS, Circuit Judge.

Defendants Makita, U.S.A., Inc., and Makita Electric Works, Ltd. (collectively "Makita"), appeal a jury verdict in favor of plaintiffs William and Janet Pogor in this diversity products liability action brought under Michigan law. Makita argues that the district court erred by: (1) failing to grant Makita's motion for a judgment as a matter of law (JNOV) based upon plaintiffs' failure to present sufficient evidence to support their claims of defective design and failure to warn; (2) awarding plaintiffs $10,000 for future medical expenses; and (3) awarding plaintiffs prejudgment interest. Because the district court did not abuse its discretion when it denied Makita's JNOV motion as to plaintiffs' products liability claims or when it awarded prejudgment interest, we affirm the judgment as to those issues. However, because the district court erred in awarding future medical expenses to plaintiffs, we reverse the district court's denial of Makita's JNOV motion on that issue.

I.

William Pogor, a self-described master craftsman in woodworking, severely injured his left hand in October of 1993, while attempting to attach a router under a wooden table in an inverted position in order to use the apparatus as a "shaper table." The router was manufactured by Makita in 1984 and purchased by Pogor in 1986. He first marked and drilled four mounting holes into the table and then drilled a center hole for the router bit. To match the diameter of the center hole to the router bit, Pogor intended to "size" the hole by mounting the router with an oversized bit under the table and, after turning the router on, pushing it upward by hand to cut the center hole through the table top. Unfortunately, when he attempted to perform these tasks, the motor assembly fell through the housing and the rotating bit grazed his left hand, injuring it severely.

Pogor and his wife, Janet, filed a complaint alleging that Makita was negligent in designing the router and in failing to warn Pogor of the risks associated with using it in an inverted position.

At the close of plaintiffs' case, Makita unsuccessfully sought a directed verdict on the design defect and failure to warn claims, as well as the claim for future medical expenses. At the trial's conclusion, the jury returned a verdict against Makita, finding that it had negligently designed the router and negligently failed to warn of the router's inherent risks, and that its negligence was the proximate cause of Pogor's injury. The district court entered judgment in accordance with the jury verdict, awarding plaintiffs $1,352,400, plus statutory interest.

Makita moved for a JNOV based upon the ground that plaintiffs failed to produce sufficient evidence to support their claims of defective design and failure to warn, and their claim for future medical expenses. Thereafter, plaintiffs filed a motion to set prejudgment interest. Makita responded that plaintiffs' motion was filed beyond the ten-day time limit set by Federal Rule of Civil Procedure 59(e). Plaintiffs responded in turn that under Rule 60(a) their motion could be filed at any time.

The court denied Makita's motions for a JNOV and granted plaintiffs' motion for prejudgment interest. This timely appeal followed.

II.
A. Prejudgment Interest

Makita first contends that the district court erred in awarding plaintiffs $87,675.32 in prejudgment interest. The district court entered judgment, on November 29, 1995, in the amount of $1,352,400, "plus statutory interest and taxable costs, as allowable under law." On January 29, 1996, plaintiffs asked the district court to set prejudgment interest on the earlier judgment. 1 Makita responded by arguing that plaintiffs' motion was untimely since it essentially was a motion to alter or amend the judgment and had to be filed within ten days of the judgment as required by Federal Rule of Civil Procedure 59(e). Plaintiffs maintained that their motion was governed by Rule 60(a), and thus could be filed at any time. The district court agreed that Rule 60(a) governed.

Rule 59(e) requires that: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e). According to Rule 60(a), "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders." Fed.R.Civ.P. 60(a). The question, then, is whether plaintiffs' motion to set the amount of interest should have been regarded as a motion to alter or amend the judgment subject to the filing limitation in Rule 59(e), or as a motion to correct an error arising from oversight or omission under Rule 60(a).

In Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989), the Supreme Court held that a postjudgment motion for discretionary prejudgment interest was governed by Rule 59(e). Id. at 175-76, 109 S.Ct. at 991-92. In Osterneck, plaintiffs brought suit against a number of defendants for allegedly making fraudulent misrepresentations in regard to the financial condition of a company involved in a merger. After the jury returned a verdict against some of the defendants and in favor of others, plaintiffs, within ten days, submitted a motion for prejudgment interest and, while the motion was pending, filed a notice of appeal. The Supreme Court concluded that the postjudgment motion for discretionary prejudgment interest was a motion to alter or amend under Rule 59(e), and that the notice of appeal was therefore premature. Id. at 176-77, 109 S.Ct. at 991-92.

The Court noted that since prejudgment interest traditionally has been considered part of the plaintiffs' overall compensation, id. at 175, 109 S.Ct. at 991, and raises issues neither wholly collateral to the judgment in the main cause of action, nor wholly separate from the decisions on the merits, id. at 175-76, 109 S.Ct. at 991-92, such a motion involves the kind of reconsideration of matters encompassed within the merits of a judgment to which Rule 59(e) was intended to apply. Id. at 176, 109 S.Ct. at 991-92. Furthermore, the "conclusion that a postjudgment motion for discretionary interest is a Rule 59(e) motion also helps further the important goal of avoiding piecemeal appellate review of judgments." Id. at 177, 109 S.Ct. at 992 (citation omitted). Although Osterneck involved a motion for discretionary interest, the Court opined that its holding would apply to cases involving mandatory prejudgment interest as well:

We do not believe the result should be different where prejudgment interest is available as a matter of right. It could be argued that where a party is entitled to prejudgment interest as a matter of right, a reexamination of issues relevant to the underlying merits is not necessary, and therefore the motion should be deemed collateral in the sense we have used that term. However, mandatory prejudgment interest, no less than discretionary prejudgment interest, serves to "remedy the injury giving rise to the [underlying] action," Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 1721, 100 L.Ed.2d 178 (1988), and in that sense is part of the merits of the district court's decision.

Id. at 176 n. 3, 109 S.Ct. at 992 n. 3.

Subsequent to the decision in Osterneck, the Court of Appeals for the Tenth Circuit held that a motion to set the amount of prejudgment interest is governed by Rule 60(a), not Rule 59(e). McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 682 (10th Cir.1989). Although it did not expressly differentiate its case from Osterneck, the court appeared to be influenced by the fact that while the motion in Osterneck was an original request for interest, the judgment in McNickle already provided for damages "with interest thereon as provided by law":

The district court, by the terms of its March 19, 1986, judgment, intended to award interest as provided by law. The pertinent law here, [Okla. Stat. tit. 36,] § 3629(B), requires the award of prejudgment interest. By their Rule 60(a) motion, the plaintiffs essentially requested the court to insert the omitted particulars of the prejudgment interest award....

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