Senco Products, Inc. v. Riley

• Citation: 434 N.E.2d 561,133 A.L.R.4th 1173
• Decision Date: 22 April 1982
• Docket Number: No. 1-281A55,1-281A55
• Parties: SENCO PRODUCTS INCORPORATED and J. R. Hahn, Company Incorporated, Appellants-Defendants, v. Jeff RILEY, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 561

434 N.E.2d 561

33 A.L.R.4th 1173

SENCO PRODUCTS INCORPORATED and J. R. Hahn, Company

Incorporated, Appellants-Defendants, v. Jeff RILEY, Appellee-Plaintiff.

No. 1-281A55.

Court of Appeals of Indiana, Fourth District.

April 22, 1982.

Thomas H. Bryan, Fine Hatfield Sparrenberger & Fine, Evansville, for appellant-defendant, Senco Products Inc.

Robert T. Bodkin, Bamberger Foreman Oswald & Hahn, Evansville, for appellant-defendant, J. R. Hahn, Co., Inc.

John Wissner, Scales Wissner & Krantz, Boonville, for appellee-plaintiff.

YOUNG, Judge.

Defendants Senco and Hahn, manufacturer and distributor of Senco staple guns, appeal from a jury verdict awarding plaintiff $65,000 in damages upon a products liability claim for injuries sustained by plaintiff Jeff Riley when he was hit in the eye by a staple. Defendants argue that the trial court erred by:

1. Admitting plaintiff's expert witness's testimony without sufficient factual foundation;

2. Excluding testimony from a defense witness on the issue of warnings given in certain brochures;

3. Restricting cross-examination of the plaintiff concerning two prior inconsistent statements about the cause of the accident given to the worker's compensation insurance carrier and not permitting the jury to examine these documents;

4. Failing to grant defendants' motion for judgment on the evidence; and

5. Giving its Instructions number 3 and number 17.

On December 21, 1977, Riley, during his second day of employment at Corr-Wood Manufacturing, Inc. was using a Senco pneumatic staple gun ¹ to build wooden boxes. Another employee was working with Riley and was stapling on the opposite side of the box. Riley had placed several staples into the box and was continuing to staple up the side of it when he placed the gun flat against the box, pulled the trigger, and felt a puff of air hit his right eye. As he reached up and felt the points of a staple sticking out of his eye, the staple fell out. After feeling the staple in his eye and seeing it fall, he laid the staple gun on the work table and called for help. At this time Riley also noticed that the guide plate of the staple gun was open. Riley's co-worker went to get the foreman who took Riley to the hospital for treatment. Sometime thereafter the co-worker also noticed that the guide plate of the staple gun was open. Workers continued to use this staple gun for the remainder of the workshift. However, no one knows what has since happened to that particular gun.

Defendants' first allegation of error is that the trial court erred in overruling objections to Riley's expert witness's testimony. The argument is unclear as to whether the defendants are contending that the expert was not qualified, whether his testimony, in general, did not have sufficient basis in fact, or whether the admission, over objections, of specific parts of the testimony constituted separate errors. ²

Initially, we note that any error concerning the qualifications of Riley's expert is waived because defendants made no objections to his qualifications at trial. ³ Zeigler Building Materials, Inc. v. Parkison, (1980) Ind.App., 398 N.E.2d 1330; Ramsey v. Complete Auto Transit, (7th Cir. 1968) 393 F.2d 41. Even if not waived, the court committed no error. The question of an expert's qualifications is for the trial judge's broad discretion and is reviewable only for abuse of discretion. Davis v. Schneider, (1979) Ind.App., 395 N.E.2d 283. To qualify a witness as an expert, two elements must be met: 1) the subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the ken of laymen; and 2) the witness must have sufficient skill, knowledge or experience in that field as to make it appear that his opinion or inference will probably aid the trier in his search for the truth. Id. Here the mechanics of the operation and design of the tool as well as alternative designs are distinctly related to the engineering field. Defendants admit that the speed at which the tool operates and the forces involved are beyond the knowledge of the average person. In addition, the expert testified about his educational, practical and professional experience in engineering prior to rendering any opinion. He also explained how he examined the staple gun and its design. His qualifications were sufficient to justify the trial court's conclusion as to his expert status.

The defendants specifically state the focus of the objections is that there was insufficient factual foundation laid before the expert was allowed to testify as to his opinion or findings. ⁴ These findings concerned the alleged defects in design: that the gun could be operated with the safety plate open, that the front guide plate could be installed in its reverse position ⁵ and therefore open more easily, and that the safety device is exposed so that an operator could contact the sides of it accidentally and cause a staple to shoot. He also found that due to wear and tear through normal use the guide plate opens more easily. ⁶ Based upon these findings, his experience and alternative designs (which would prevent the gun from operating when the guide plate is open), the expert concluded that the Senco staple gun was defective and unreasonably dangerous to the user.

Defendants correctly suggest that an expert may give an opinion that is based upon first-hand knowledge of the material facts at bar. Davis v. Schneider, supra at 289. An expert may also testify on the basis of knowledge as to facts in the record, McCraney v. Kuechenberg, (1969) 144 Ind.App. 629, 248 N.E.2d 171, or he may express his opinion upon assumed facts supported by the evidence and stated to him by way of a hypothetical question. Town of Newburg v. Jones, (1945) 115 Ind.App. 320, 58 N.E.2d 938.

From the expert's examination of the gun, he gained first-hand knowledge of facts on the issue of whether or not the product was defective and unreasonably dangerous when it left the hands of the manufacturer. When an expert testified upon first-hand knowledge of facts, he does not need to be examined in the form of hypothetical questions. Davis, supra. He may testify to what he has observed, give his expert inference arising from what he has observed and state his opinions. Id. Thus, Riley's expert, testifying upon first-hand knowledge gained from examination of the gun, testified upon a sufficient factual foundation. The trial court committed no error.

Additionally, defendants seem to argue, somewhat confusingly, that the testimony concerning these "findings" should not have been admitted because there was no evidence of wear and tear, of the guide plate being open or installed backwards, or of the design of a safety device being involved. Therefore, this testimony had no relevancy to the facts of this case. However, at the time of the objection, Riley had introduced evidence of wear and tear; the gun was old and had been beaten around. The guns used by Corr-Wood had been there several years although they had been maintained on a regular basis. The guide plate was also found open immediately following the accident. Thus, the defect of failure to design the gun to prevent operation when the guide plate is open could be connected with evidence showing wear and tear. Therefore, part of the evidence was admissible. Where only a part of the evidence to which a general objection is made is subject thereto, the objection is properly overruled. ⁷ McGuffey v. McClain, (1892) 130 Ind. 327, 30 N.E. 296; Huber Manufacturing Co. v. Blessing, (1912) 51 Ind.App. 89, 99 N.E. 132. See also Mueller v. Mueller, (1948) 118 Ind.App. 274, 78 N.E.2d 667.

Defendants' second allegation of error is that the court erred in excluding testimony from a defense witness when he was asked if parts charts shipped with their staple gun contained safety warnings. Plaintiff's counsel objected to this question because no evidence of any specific documents, i.e., parts charts, connected with any Senco guns within the time frame of plaintiff's accident had been presented. Defendants responded:

"Your honor, I would like to reply to that. There has been no identification of the tool that was involved in this occurrence. They are going after this tool apparently as to the design of the E-Z Clear Device. I think the defendant Senco has a right to discuss the items that were included with the units as they were sold in general for that reason."

The court sustained the objection.

Even assuming the above response was an offer to prove, defendants have failed to preserve this question for review because the reply was unresponsive. If an offer of proof is unresponsive, exceeds the scope of the question asked, it is not sufficient and there is no error in sustaining the objection. Albert Johann & Sons Co. v. Echols, (1968) 143 Ind.App. 122, 238 N.E.2d 685. Defendants' response was both unresponsive and general. It failed to specifically state what they expected to prove. No error was preserved.

Defendants' third allegation of error is that the trial court erred by excluding evidence which was relevant to Riley's credibility. On direct examination of Riley, his attorney elicited testimony that Riley had signed two documents containing statements of the cause of the accident which were inconsistent with statements now made by him at trial. These statements alleged that the staple came from his co-worker's gun rather than his own gun. These statements were included in the worker's compensation carrier's investigation reports. Defendants were allowed to read these statements into evidence and to cross-examine Riley on them. However, the trial court refused to let the jury review the documents, presumably because they disclosed the insurance coverage. Additionally, the court denied defendants' request for relief from an order in limine. The purpose of the request was to get permission to cross-examine Riley concerning who took...