Ross v. Black & Decker, Inc.
| Decision Date | 02 December 1992 |
| Docket Number | No. 91-2670,91-2670 |
| Citation | 977 F.2d 1178 |
| Parties | 36 Fed. R. Evid. Serv. 983, Prod.Liab.Rep. (CCH) P 13,360 Jerry L. ROSS, Plaintiff-Appellee, v. BLACK & DECKER, INCORPORATED, a foreign corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Laird M. Ozmon, James P. Stevenson, John T. Kelly, Kelly & Kleczek, Joliet, Ill., David A. Novoselsky (argued), Novoselsky & Associates, Chicago, Ill., for plaintiff-appellee.
Russell P. Veldenz, Algimantas P. Kezelis (argued), John A. Culver, French, Kezelis & Kominiarek, Chicago, Ill., for defendant-appellant.
Before CUDAHY and COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
In July 1990, Jerry L. Ross, an Illinois resident, filed a products liability suit in an Illinois state court against the defendant Black & Decker, Inc. ("B & D"), a corporation with its principal place of business in Maryland. Ross sought damages for an injury sustained while operating a power saw manufactured by the defendant. B & D removed the state action to federal district court pursuant to 28 U.S.C. § 1441(a), invoking the court's diversity jurisdiction. A jury found B & D liable for Ross' injury, and awarded him $2,000,000 in compensatory damages and $10,000,000 in punitive damages. B & D urges reversal of the jury verdict and damages award on numerous grounds. The parties agree that Illinois law is the substantive law governing this case. We affirm the jury's finding of liability against B & D and its award of $2,000,000 in compensatory damages to Ross, and vacate the jury's punitive damages award as excessive.
On May 4, 1983, Ross, a brick-layer and part-time handyman, was using a DeWalt 10 inch Power Miter Box electrical saw designed, manufactured and sold by B & D, to cut a piece of wood for window trim. Ross had placed the lumber on the floor to make a right-handed 45 degree cut. Ross used his right hand to operate the saw's trigger handle while holding the piece of wood with his left hand. A stationary metal enclosure prevented inadvertent contact with the upper portion of the saw blade. A clear plastic guard extending down along and parallel to the left side of the saw prevented contact with the blade on the left side position, and moved upward when it came in contact with the wood. The lower right side of the saw blade was barren of any such safety device. Because the saw had its own base on which to place the wood to be cut, it could be used on the floor as well as on a table. The saw could also be operated with either hand on the trigger handle while using the other hand to secure the workpiece.
After Ross finished making his cut, he released the saw's power trigger with his right and reached for the piece of wood with his left hand. He testified that as he "started to get up, my [left] hand rolled, I guess, or drifted into the blade." According to Dr. Eloff Eriksson, the plastic surgeon who later operated on Ross, the contact with the still-rotating blade "almost completely severed [Ross' left] hand from the forearm at the level of the wrist." Only a narrow "skin bridge" and three tendons remained connecting the forearm to the hand. Dr. Eriksson stated that Dr. Eriksson realigned the bones in Ross' injured hand by driving pins through the bones and into the forearm, and surgically repaired the severed tendons. With the use of microsurgical instruments he was able to re-attach and re-activate the severed blood vessels and nerves. A nerve from Ross' lower leg was removed and grafted into a missing gap in the median nerve of his left hand. After surgery, Ross underwent a course of rehabilitation therapy which lasted more than a year.
An expert witness for the plaintiff, Dr. Hatem Galal, a plastic surgeon who examined Ross' injured hand and conducted an occupational therapy evaluation of Ross' hand function for employment purposes, testified that Ross lost about 60% of the functioning of his left hand because of the saw accident and stated that a human hand accounts for about 90% of the function of an arm. An arm accounts for about 60% of the body's total function. 1 Therefore, Dr. Galal estimated that Ross' hand injury deprived him of about 30% of total body functioning. Ross testified that he is unable to return to work as a bricklayer because of the injury.
B & D challenges the district court's denial of its post-trial motions for judgment notwithstanding the verdict ("JNOV") pursuant to Fed.R.Civ.P. 50(b) and for a new trial pursuant to Fed.R.Civ.P. 59. "In diversity cases, state law governs the standard of review of a denial of a motion for judgment notwithstanding the verdict." Bilski v. Scientific Atlanta, 964 F.2d 697, 699 n. 2 (7th Cir.1992) (citation omitted); see also Arcor, Inc. v. Textron, Inc., 960 F.2d 710, 714 (7th Cir.1992). "In a diversity action governed by Illinois law, judgment notwithstanding the verdict is appropriate only in those cases in which all of the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Bilski, 964 F.2d at 699 (citations omitted); Arcor, 960 F.2d at 714. We review denials of JNOV motions de novo. Fleming v. County of Kane, 898 F.2d 553, 559 (7th Cir.1990).
Federal law governs the review of a motion for a new trial, even in diversity cases. Hardin, Rodriguez & Boivin Anesthesiologists v. Paradigm Insurance Company, 962 F.2d 628, 640 (7th Cir.1992). A new trial may be granted only if the jury's verdict is against the clear weight of the evidence. Id. We review a denial of a motion for a new trial under the deferential abuse of discretion standard. Id.; Bilski, 964 F.2d at 700.
With these standards of review in mind, we turn to the substantive law governing Ross' claim. In Illinois, to prevail in a product liability action, a plaintiff must demonstrate that (1) his injury resulted from the condition of the product; (2) the condition of the product was unreasonably dangerous; (3) the condition existed when it left the seller's control; and (4) the condition was the proximate cause of the injury. Bilski, 964 F.2d at 699 (citing Pierce v. Hobart Corp., 159 Ill.App.3d 31, 111 Ill.Dec. 110, 112, 512 N.E.2d 14, 16 (1987)); see also Aetna Insurance Co. v. Amilio Brothers Meat Co., 182 Ill.App.3d 863, 131 Ill.Dec. 332, 538 N.E.2d 707 (1989).
At trial, Ross argued that the B & D saw, as designed, manufactured and sold, was unreasonably dangerous because it lacked a necessary lower right side saw blade guard. On appeal, B & D makes one argument in support of its JNOV and new trial motions: that Ross failed to present any evidence supporting his theory that a right lower blade guard would have prevented his injury. B & D's trial strategy, which they now restate on appeal, was to argue that Ross' hand contacted the blade from below, and therefore a side right guard would not have prevented the injury. In partial support of its theory, B & D points out that Ross was unable to recollect precisely how his hand came in contact with the saw blade. Ross remembered only releasing the saw's power button, reaching with his left hand for the piece of cut lumber to the right of the saw, and his hand somehow "drift[ing]" into the blade. B & D also points to the testimony of John L. Bennett, a retired 40-year employee of B & D who last served with the company as a safety assurance manager. In this capacity, one of Bennett's functions was to serve as an expert witness for B & D. According to Bennett, a lower right guard on the saw would not have prevented Ross' injury because Ross came into contact with the saw from below, and the guard would only have prevented contact with the saw from the side. Bennett came to this conclusion based upon his analysis of photographs of Ross' injured hand, and from his inspection of the saw's mechanism.
The plaintiff disputed the defendant's explanation for the injury, and argued that his left hand contacted the blade laterally from the right side of the saw and thus a lower-right blade guard would have prevented the injury. In support of his position, the plaintiff directs us to the testimony of Dr. Eriksson, who agreed that Ross' injury was consistent "with contact with a rotating saw blade with the thumb in an upward position and thereafter a rotation of the arm consistent with the grabbing of the saw blade resulting in the almost complete amputation, leaving only the skin bridge on top of the wrist". This factual scenario describes Ross' contact with the saw blade from the right side of the machine, rather than from under the saw. Donald L. Clark, a mechanical engineer formerly employed by B & D and one of the holders of the patent for the power miter saw which injured Ross, stated that he believed Ross' "left hand moved sideways into the still spinning blade." Another of the plaintiffs' expert witnesses was Stanley R. Kalin, a safety engineer and former deputy chief of the office of training and development at the Department of Labor's Occupational Safety and Health Administration in Washington, D.C. Kalin explained that safety engineers specialize in "examining accidents and examining machines and processes and products to determine whether there is an unreasonable danger in the machine or in the process." In Kalin's opinion, the saw used by Ross "was defective and unreasonably dangerous due to the lack of a complete guard on the right-hand side of the blade" and that "the presence of a proper guard on the right-hand side of the blade would have prevented the injury to...
To continue reading
Request your trial
-
Pulla v. Amoco Oil Co.
...Nos. 23 and 28. 16 The circuits are in conflict over what standard should be applied in diversity cases. Compare Ross v. Black & Decker, Inc., 977 F.2d 1178, 1181 (7th Cir.1992) ("In diversity cases, state law governs the standard of review of a denial of a motion for judgment notwithstandi......
-
Chadima v. National Fidelity Life Ins. Co.
...F.Supp. at 644. 6 The circuits are in conflict over what standard should be applied in diversity cases. Compare Ross v. Black & Decker, Inc., 977 F.2d 1178, 1181 (7th Cir.1992) ("In diversity cases, state law governs the standard of review of a denial of a motion for judgment notwithstandin......
-
Stone v. United Engineering, a Div. of Wean, Inc.
...not been imposed by statute or promulgated by a regulatory body and therefore do not have the force of law.' " Ross v. Black & Decker, Inc., 977 F.2d 1178, 1184 (7th Cir.1992) (quoting Ruffiner v. Material Service Corp., 116 Ill.2d 53, 106 Ill.Dec. 781, 784, 506 N.E.2d 581, 584 (1987), cert......
-
Reich v. Minnicus
...F.2d 237, 239 (7th Cir.1989); Fleming v. County of Kane, State of Illinois, 898 F.2d 553, 559 (7th Cir.1990); Ross v. Black & Decker, Inc., 977 F.2d 1178, 1182 (7th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1274, 122 L.Ed.2d 669 (1993); 11 C. Wright & A. Miller, Federal Practice and......
-
Witnesses
...informant as the court’s witness where the defendant had the right to call the witness himself. Ross v. Black and Decker Inc. , 977 F.2d 1178 (7th Cir. 1992). Under Rule 614(b) a court may question a witness, but a judge may not abandon his role and assume that of an advocate, nor may he be......
-
Child, spouse & Misc.
...informant as the court’s witness where the defendant had the right to call the witness himself. Ross v. Black and Decker Inc. , 977 F.2d 1178 (7th Cir. 1992). Under Rule 614(b) a court may question a witness, but a judge may not abandon his role and assume that of an advocate, nor may he be......
-
Witnesses
...informant as the court’s witness where the defendant had the right to call the witness himself. Ross v. Black and Decker Inc. , 977 F.2d 1178 (7th Cir. 1992). Under Rule 614(b) a court may question a witness, but a judge may not abandon his role and assume that of an advocate, nor may he be......
-
Witnesses
...informant as the court’s witness where the defendant had the right to call the witness himself. Ross v. Black and Decker Inc. , 977 F.2d 1178 (7th Cir. 1992). Under Rule 614(b) a court may question a witness, but a judge may not abandon his role and assume that of an advocate, nor may he be......