Rye v. Black & Decker Mfg. Co.

• Citation: 889 F.2d 100
• Decision Date: 13 November 1989
• Docket Number: No. 88-6099,88-6099
• Parties: 29 Fed. R. Evid. Serv. 102, Prod.Liab.Rep.(CCH)P 12,296 John E. RYE, Plaintiff-Appellant, v. BLACK & DECKER MANUFACTURING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 100

889 F.2d 100

29 Fed. R. Evid. Serv. 102, Prod.Liab.Rep.(CCH)P 12,296

John E. RYE, Plaintiff-Appellant, v. BLACK & DECKER MANUFACTURING COMPANY, Defendant-Appellee.

No. 88-6099.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 21, 1989.

Decided Nov. 13, 1989.

N. Reese Bagwell (argued), Clarksville, Tenn., W. Douglas Myers, Deatherage, Myers & Haggard, Hopkinsville, Ky., for plaintiff-appellant.

R. David Clark, Linda M. Hopgood, George B. Hocker (argued), Clark, Ward & Hopgood, Lexington, Ky., for defendant-appellee.

Before KENNEDY and WELLFORD, Circuit Judges; and LIVELY, Senior Circuit Judge.

KENNEDY, Circuit Judge.

In this products liability action, appellant John Rye appeals the District Court's exclusion of evidence of prior injuries allegedly caused by circular saws manufactured by appellee Black & Decker similar to the saw which injured appellant. At trial, appellant claimed the saw was defectively designed in that it did not have a completely closing guard or a riving knife. ¹ He also claimed appellee failed to give sufficient warning of the saw's kickback hazard. Because we find that the District Court did not abuse its discretion in excluding the prior accidents, after finding that they were not shown to be "substantially similar," and that no substantial right of appellant was affected, we affirm.

Appellant was injured when the portable 7- 1/4 inch Black & Decker circular saw he was using "kicked back," amputating a portion of his right hand from the base of his little finger to the tip of his index finger. Appellant was trimming a one-half to three-quarter inch piece of wood from the end of a treated pine board. According to appellant, the saw bound in the wood and kicked itself out. The saw had an upper fixed blade guard and a lower blade guard that exposed approximately one and one-half inches of the blade when in place. The lower guard closed over the blade by spring action so that when the saw was removed from the wood being cut, the guard automatically covered most of the blade. The saw was not equipped with a "riving knife," which is a device used to prevent the blade from binding and kicking back. Appellant proffered seventeen "prior complaints" to show that Black & Decker had notice of problems with the design of the guard and that its saw kicked back. This evidence included letters from customers, civil complaints, and published court opinions. The court found two to be substantially similar enough to warrant admission at trial. ²

The jury returned a verdict for Black & Decker. Appellant appeals seeking a new trial.

In reviewing the exclusion of evidence concerning prior accidents or incidents, our standard of review is whether the District Court abused its discretion. Polk v. Yellow Freight System, Inc., 876 F.2d 527, 532 (6th Cir.1989); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th Cir.1988). Under this standard, "the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court." Id. at 1266 (quoting Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir.1984) (emphasis in original)). We are guided by the principles that "heavy reliance is placed on the discretion of the trial judge" in admitting or excluding evidence of prior accidents, Rhodes v. Michelin Tire Corp. 542 F.Supp. 60, 62 (E.D.Ky.1982), and the trial judge's decision is to be given "great latitude." Moran v. Vermeer Mfg. Co., 742 F.2d 456, 458 (8th Cir.1984). A "strong showing of abuse" is required for us to disturb the District Court's judgment. Id. at 457.

We note initially appellant's contention that the standard for admitting prior accidents should be relaxed if the accidents are used merely to show notice of a dangerous condition. See Exum v. General Elec. Co., 819 F.2d 1158, 1162 (D.C.Cir.1987); Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1083 (5th Cir.1986). This Court has neither accepted nor rejected this standard, nor is it necessary that we do so for the resolution of this case. Appellant concedes that he sought to introduce the prior accidents to show both notice and causation. Because causation was a component of that which he hoped to prove with the prior accidents, it is not appropriate to relax the standard for admission in the manner urged by appellant. Moreover, there was a sufficient basis for the District Court to exclude the prior accidents even under a relaxed standard, and any error in exclusion did not affect a substantial right of appellant. It would not therefore be sufficient to require a new trial.

As a threshold matter, prior accidents must be "substantially similar" to the one at issue before they will be admitted into evidence. Koloda v. General Motors Parts Div., General Motors Corp., 716 F.2d 373, 376 (6th Cir.1983); Rhodes, 542 F.Supp. at 62. Substantial similarity means that the accidents must have occurred under similar circumstances or share the same cause. See Brooks v. Chrysler Corp., 786 F.2d 1191, 1195 (D.C.Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986) ("[e]vidence of prior instances is admissible on the issues of the existence of a design defect and a defendant's knowledge of that defect only if a plaintiff shows that the incidents 'occurred under circumstances substantially similar to those at issue in the case at bar' ") (quoting McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir.1981)); Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1332 (8th Cir.1985) (same); Rhodes, 542 F.Supp. at 62. The plaintiff has the burden of proving the substantial similarity between prior accidents and his own. Lewy v. Remington Arms Co., 836 F.2d 1104, 1109 (8th Cir.1988).

Upon reviewing the items offered into evidence and the District Court's reasons for excluding them, we conclude that the court did not abuse its discretion.

After examining the evidence, the District Court determined that

in all of these, I find there is some difference in this case and/or just not a sufficient showing of facts in these cases, which would bring them into substantial similarity.

The court went through each proffered item and stated its reasons for not admitting it. The complaints either involved injuries caused by defects other than kick backs (e.g., failure of the blade guard to operate), or they did not describe in sufficient detail the circumstances causing kick backs. The court distinguished these cases when it said

as a general proposition, a lot of these cases are quite a bit different because they pertain to things like a saw hitting a knot in the wood or the saw cutting somebody's arm or leg but not really telling us the mechanism of how the injury occurred; and there are a lot of complaints here, which generally describe the saw as being used in the normal course of events when the saw kicked back. There are some suggestions in here that there are safety guards which failed to operate; and in this case, we have primarily two allegations; and those are that the saw should have had a riving knife on it and it didn't and that a portion of the blade is exposed even though the guard is fully closed.

Appellant was injured when his saw kicked back as he was trimming a narrow piece of wood from a board. None of the prior incidents contained sufficient facts for the District Court to find that the circumstances were substantially similar to those in appellan...