Thomas v. Black & Decker (U.S.), Inc.
| Decision Date | 04 February 1987 |
| Docket Number | No. 86-117,86-117 |
| Parties | Prod.Liab.Rep. (CCH) P 11,451 Richard O. THOMAS, Sr., Plaintiff-Appellant, v. BLACK & DECKER (U.S.), INC. and the Home Insurance Company, Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Stockwell, Sievert, Robert S. Dampf, Lake Charles, for intervenor-defendant-appellant.
Jones, Jones and Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellant.
Raggio, Cappel, Richard B. Cappel, Lake Charles, for defendant-appellee.
Before FORET, STOKER and YELVERTON, JJ.
Plaintiff, Richard O. Thomas, suffered an injury to his right hand while using a 3/4" industrial, heavy duty drill manufactured by defendant, Black & Decker, Inc.
Thomas was working as a roustabout for Cameron Construction Company on January 31, 1983. He and his co-workers were building a bulkhead and dock in Cameron, Louisiana. They were preparing 12" by 12" creosote sills to be attached along the bulkhead as bumpers for the boats which would come alongside the dock. Holes had been drilled in the sills for bolts, and plaintiff, using a Black & Decker 3/4" drill and a 3" countersink bit, was boring a countersink hole. Suddenly the drill bit went into a bind and stopped turning in the wooden sill, causing the handle of the drill to swing violently. This made plaintiff's hand spin around and strike a cable attached to the end of the sill, causing his injury.
He sued Black & Decker and its insurer under a theory of products liability alleging that the drill was defective and unreasonably dangerous in normal use, and that this caused his injury. The case was tried before a jury and submitted to it on interrogatories.
As Interrogatory No. 1 on the special verdict sheet the jury was asked: "Was the Black & Decker drill being used by plaintiff on January 31, 1983, unreasonably dangerous?" In response the jury marked the answer "No", and, in obedience to its instructions, answered no further questions. The trial judge signed a judgment based on the verdict dismissing plaintiff's suit.
Thomas appealed alleging six assignments of error. Two of these assignments pertain to rulings regarding the expert witness testimony, and four have to do with the jury instructions. We find no reversible error and we affirm the judgment for the reasons here to follow.
Plaintiff relied on one expert, Ronald E. Walker. The trial court accepted Walker as an expert in safety engineering, but would not accept him as having expertise in design engineering. Walker holds academic degrees in physics and geophysics but he does not hold any engineering degree.
The qualification of an expert witness lies within the wide realm of the trial judge's discretion, and that determination will not be disturbed on appeal except on a showing of manifest error. Bateman v. Power Rig Rental Tool Company, 453 So.2d 998 (La.App. 3rd Cir.1984). We find no error in the trial judge's ruling that this witness lacked sufficient expertise to qualify as an expert in the design engineering of portable power tools. Even if this was error, however, the ruling proved ultimately to be of little or no consequence, because the witness was permitted to thoroughly explain to the jury the tests that he ran on the Black & Decker drill involved in the accident, his perceived dangers in the use of the drill, and his opinions as to what Black & Decker could have done to avoid the accident.
Walker was not permitted to testify in so many words that the drill was defective in design rendering it unreasonably dangerous in normal use, and that Black & Decker could have incorporated a safety device to prevent the accident. Appellant assigns this ruling as error. We do not agree. An examination of the entirety of his testimony shows that the jury was actually permitted to hear everything that Walker had to say.
The safety device recommended by Walker was a torque limiting device which, according to him, would have prevented the drill from ever going into an unmanageable bind. Although not permitted to articulate his conclusions in formalistic product liability language, Walker's opinion came across clearly, the inference being inescapable to even the least attentive juror that Walker thought a torque limiting device should have been installed on the drill by Black & Decker to make it safe, and that the failure to do so made it unsafe and caused the accident. He testified extensively about tests he had conducted to measure the force exerted by the drill when it went into a bind or lock-up mode. He opined that the tested 220 pounds of force exerted by this drill in this mode would exceed the ability of one man to control the handle. He was also allowed to testify in depth about a torque limiting device which he declared was available to Black & Decker and actually used by it in some of its drills. He believed that such a device should have been installed to limit the force to somewhere around 75 pounds making it relatively safe for the operator. He explained this theory to the jury in considerable detail.
There was a short note of evidence taken out of the jury's presence in which plaintiff asked questions and got answers from Walker in the formalistic expressions "unreasonably dangerous in normal use" and "defective in design", and we have compared this note of evidence to the extensive and uninhibited expression of opinion from this witness that the jury actually heard; we are convinced that whatever difference there was between what the jury heard and what it did not hear was too subtle a distinction to be considered seriously. We accordingly find no merit to this assignment of error.
The second assignment of error dealing with the expert witnesses is that it was wrong to permit the defendants' two expert witnesses to testify as to the cause of the accident and to testify that there was no defect in the drill.
Defendants' experts were William Saffell and Andrew H. Payne. Saffell, Black & Decker's manager of safety assurance, whose duties included overseeing the design of new products from the point of view of user safety, was accepted by the court as an expert in power tool design and technology. Payne, appellees' outside expert, was accepted as an expert in the field of failure analysis involving power tools.
Saffell testified that the drill was not defective in design and that the cause of the accident was not attributable to the drill. He said that it "was obviously a freak type of thing." Their other expert, Payne, described the accident as "one of those unfortunate accidents that happens when there is just a momentary lapse." Both experts, commenting on the torque limiting device, stated that torque is of the essence of the capability of the tool, and that if the torque is limited the tool is limited. They explained that the torque is necessary for the tool to do its job.
Appellant complains that these witnesses should not have been allowed to testify as to the absence of a design defect, or as to what caused the accident to happen, arguing the basic unfairness of allowing the defense experts to answer the same questions not allowed to be answered by his own expert. The answer to this is, first, as we have pointed out earlier, the defendants' experts were testifying within the realm of their expertise while, technically, the plaintiff's expert was not; and second, for all practical purposes the plaintiff's expert was accorded the same latitude as were the others. As pointed out previously, the determination of qualifications of an expert is a matter lying within the broad discretion of a trial judge, and we find no manifest error in the court's determinations regarding the qualifications of these experts.
In their brief appellees did not favor the court with arguments responding to the next four assignments of error.
The trial court gave a charge to the jury instructing it that the fault of a third person, for whose conduct the manufacturer was not responsible, was a defense which the law allows a manufacturer to raise. While...
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