Reese v. Mercury Marine Div. of Brunswick Corp.

• Decision Date: 11 July 1986
• Docket Number: No. 85-2400,85-2400
• Parties: 21 Fed. R. Evid. Serv. 166, Prod.Liab.Rep.(CCH)P 11,070 Beatrice REESE, Individually and as Guardian for Carol Lynn Reese and Jennifer Ann Reese, Minor Children, and Eli Reese, Plaintiffs-Appellees, v. MERCURY MARINE DIVISION OF BRUNSWICK CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1416

793 F.2d 1416

21 Fed. R. Evid. Serv. 166, Prod.Liab.Rep.(CCH)P 11,070

Beatrice REESE, Individually and as Guardian for Carol Lynn Reese and Jennifer Ann Reese, Minor Children, and Eli Reese, Plaintiffs-Appellees, v. MERCURY MARINE DIVISION OF BRUNSWICK CORPORATION, Defendant-Appellant.

No. 85-2400.

United States Court of Appeals Fifth Circuit.

July 11, 1986.

Arthur M. Glover, Jr., Jack M. McKinley, Houston, Tex., for defendant-appellant.

Seale, Stover, Coffield & Gatlin, March H. Coffield, Gary H. Gatlin, Jasper, Tex., for Beatrice Reese, et al.

Gilbert T. Adams, Jr., Beaumont, Tex., for Eli Reese.

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

Before BROWN, JOHNSON, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant, Mercury Marine Division of Brunswick Corporation (Mercury), appeals from a judgment in favor of the plaintiffs in this wrongful death action. Finding appellant's contentions on appeal to be without merit, we affirm the judgment of the district court.

I.

Melvin Reese was fatally injured on May 7, 1983, in a boating accident on the Neches River. At the time of the accident, Reese was operating a fourteen foot "jon boat" The accident occurred while Reese was on a fishing trip with his family and friends. Reese and a companion, John Burrell, were proceeding down the Neches River when their boat hit a snag. Reese and Burrell were both thrown into the water. The unmanned boat turned in the river and circled back toward Reese and Burrell. Reese pushed Burrell under the water to avoid the boat. When Burrell resurfaced, Reese had disappeared. Reese's body was recovered from the river several days later. While the evidence regarding the precise cause of Reese's death was conflicting, several witnesses indicated that Reese was killed when struck by the unmanned boat.

equipped with a twenty-five horsepower outboard motor manufactured by the defendant Mercury Marine. Reese had purchased the motor in May of 1982 from Hodge Boats and Motors in Beaumont, Texas.

Reese's survivors filed the instant wrongful death action against the manufacturer of the boat's motor, Mercury Marine. Plaintiffs pursued two separate strict products liability theories. According to plaintiffs, Mercury's outboard motor was defectively designed because it was not equipped with a safety device known as a "kill switch." A kill switch is a device designed to stop or slow the outboard motor operation when the boat operator is thrown or ejected from the operating position. Plaintiffs argued that any outboard motor lacking a kill switch is unreasonably dangerous because of the circling phenomenon--the tendency of an unmanned boat powered by an outboard motor to circle. Plaintiffs argued that had Reese's outboard motor been equipped with a kill switch, Reese would not have been fatally injured by the circling boat.

Plaintiffs also asserted that the Mercury motor was defective and unreasonably dangerous because it was not accompanied by warnings and instructions informing the user of both the circling phenomenon and the availability of a kill switch. According to plaintiffs, Mercury's failure to provide such a warning was a producing cause of Reese's death.

After an intensely contested three day trial, the jury returned a verdict partially in favor of the plaintiffs. The jury concluded that Mercury's failure to equip the outboard motor with a kill switch did not render the product defective and unreasonably dangerous. The jury also concluded, however, that Mercury had failed to adequately warn consumers of the benefits of kill switch use and that such failure rendered the outboard motor unreasonably dangerous. In addition, the jury attributed twenty-five percent of the fault for the accident to Melvin Reese. After the district court entered judgment in favor of plaintiffs, Mercury filed a timely notice of appeal.

On appeal, Mercury asserts several challenges to the district court's conduct of the trial proceedings. In particular, Mercury contends (1) that the district court erred in excluding relevant evidence regarding the retailer's responsibility to warn consumers regarding kill switch use; (2) that the district court committed reversible error by repeatedly and adversely commenting upon the behavior and motives of Mercury and its attorney; (3) that the district court erred in admitting evidence of remedial measures adopted by Mercury following Reese's accident; and (4) that Mercury is entitled to a new trial based on a "conscience of the community" argument made by plaintiffs' attorney during closing arguments. Mercury does not challenge the amount of damages awarded by the jury. For the following reasons, we find Mercury's various contentions to be without merit.

II.

Mercury first contends that the district court erroneously excluded evidence relevant to determining the adequacy of Mercury's warnings regarding kill switch use. In particular, Mercury challenges the district court's exclusion of evidence contained in the depositions of David Williams and Charles Anglin regarding the dealer's role in instructing customers about kill switch Q: Now you recognize when you sell an engine that you have certain responsibilities and that the operator has certain responsibilities; is that correct?

use. Mercury attempted to introduce the following deposition testimony of Williams, the general manager of Hodge Boats and Motors:

A: That's correct.

Record Vol. III at 676. Mercury also attempted to introduce the following deposition testimony of Anglin, the salesman who sold Reese the motor involved in the instant case:

Q: Now, are you familiar with the Mercury Marine manual that goes with various outboards?

A: Yes sir.

Q: And in the manual does it have a section that says 'Dealers Responsibility and Owners Responsibility?'

A: Yes sir.

* * *

Q: And one of your responsibilities is to tell him [the purchaser] about the various equipment you can buy with that engine.

A: Right.

* * *

Q: All right. Would you tell us whether or not one of the dealer's responsibilities is to see that the engine-boat combination are properly equipped?

A: Yes, sir.

Record Vol. III at 681-84.

The district court properly determined that the foregoing evidence was immaterial to the issue of causation. Texas law places liability on the manufacturer of a defective product if the defect is a "producing cause" of the plaintiff's injury. More than one producing cause can exist for any particular injury. Ragsdale Brothers, Inc. v. Magro, 693 S.W.2d 530, 538 (Tex.App.--San Antonio 1985). Where both a product manufacturer and a third-party owe independent duties to warn consumers regarding a product "defect," the third party's failure to warn is not a defense to the manufacturer's failure to warn. Similarly, where a manufacturer attempts to fulfill its duty to warn through a third-party intermediary, that third-party's negligence does not break the causal connection between a breach of the manufacturer's duty and the ultimate user's injury. ¹

On appeal, Mercury does not challenge the district court's conclusion that evidence regarding the dealer's responsibility to instruct customers was not material to the issue of causation. Rather, Mercury contends that the excluded evidence should have been admitted as relevant to determining the adequacy of steps taken by Mercury to instruct and warn ultimate consumers. ² Mercury concludes that the district court's ruling excluding evidence regarding dealer responsibility was reversible error entitling Mercury to a new trial.

For several reasons, we disagree. First, in asserting objections to a trial court's exclusion of evidence, a party is required under Fed.R.Evid. 103(a)(2) to carefully articulate every ground for which the evidence is admissible. Huff v. White Motor Corp., 609 F.2d 286, 290 n. 2 (7th Cir.1979); United States v. Edwards, 696 F.2d 1277, 1281 (11th Cir.), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); 1 J. Weinstein & M. Berger, Weinstein's Evidence p 103 at 103-31 to 103-32 (1985); see also United States v. Garcia, 531 F.2d 1303, 1307 (5th Cir.), cert. denied, 429 U.S. 941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976). Failure to do so renders the district court's ruling reversible only upon a finding of plain error. The rationale supporting this requirement is clear. Busy trial courts should not be required to repeat trials, especially civil trials, because the trial judge has excluded evidence for lack of a clear understanding of the proponent's purpose in offering the evidence. The trial judge must be put on notice of the purpose for which the evidence is offered while there is still time to remedy the situation. It is the proponent's duty, not that of the trial court, to clearly articulate the purpose for which the evidence is offered. Robbins v. Whelan, 653 F.2d 47, 53 (1st Cir.) (Campbell, J. dissenting), cert. denied, 454 U.S. 1123, 102 S.Ct. 972, 71 L.Ed.2d 110 (1981).

In the instant case, Mercury never clearly articulated that it was offering the excluded evidence to show the adequacy of its warnings to inform ultimate consumers regarding kill switch use. Rather, Mercury repeatedly and consistently emphasized that it was seeking to introduce evidence of dealer negligence to establish a break in the causal chain between Mercury's failure to warn and Reese's accident. In response to the district court's exclusion of Mercury's evidence, the following dialogue occurred:

The Court: The objection will be sustained. There is no question about that. The Court had already reprimanded Counsel about attempting to go into the responsibility of the dealer. The dealer is not being sued.

Counsel: Your Honor, I have pleadings on file where I have pled the negligence of third-parties over whom we have no control, which includes the dealer.

The Court: The negligence of the third-party is no defense to the Defendants in this case.

* * *

Counse...