Tommy L. Mark v. Mellott Manufacturing Co., Inc.
| Decision Date | 20 September 1995 |
| Docket Number | 94 CA 2011,95-LW-0417 |
| Parties | TOMMY L. MARK, Plaintiff-Appellant v. MELLOTT MANUFACTURING CO., INC., Defendant-Appellee Case |
| Court | United States Court of Appeals (Ohio) |
COUNSEL FOR APPELLANT: Stewart R. Jaffy and Marc J. Jaffy, Stewart Jaffy and Associates Co., L.P.A., 306 East Gay Street Columbus, Ohio 43215 and Frank A. Ray and Frank Todaro, Ray Todaro and Alton Co., L.P.A., 175 South Third Street, Suite 350, Columbus, Ohio 43215-5100
COUNSEL FOR APPELLEE: James P. Connors, Law Office of James P. Connors, 330 South High Street, Suite 200, Columbus, Ohio 43215
DECISION
This is an appeal from a judgment entered by the Ross County Common Pleas Court following a jury trial in a product liability action brought by Tommy L. Mark, plaintiff below and appellant herein, against Mellott Manufacturing Co., Inc., defendant below and appellee herein. Appellant alleged that while he was working at the A & F Lumber Co. in Bainbridge, Ohio, on January 11, 1983, he suffered the traumatic amputation of his left arm and other injuries as a result of sawmill equipment defectively designed and manufactured by appellee.
On December 10, 1984, appellant filed his first complaint in this action against appellee and three unknown defendants. On April 19, 1985, appellant identified one of the three unknown defendants as The Frick Company. On February 13, 1986, the trial court granted summary judgment in favor of The Frick Company. We reversed that summary judgment in Mark v. Mellott Manufacturing Co., Inc. (June 5, 1987), Ross App. No. 1308, unreported.
On March 1, 1988, the trial court once again granted summary judgment in favor of The Frick Company. We affirmed that summary judgment in Mark v. Mellott Manufacturing Co., Inc. (Sept. 14, 1989), Ross App. No. 1494, unreported. Appellant appealed to the Ohio Supreme Court. In Mark v. Mellott Manufacturing Co., Inc. (1991), 57 Ohio St.3d 601, 564 N.E.2d 700, the Ohio Supreme Court dismissed the appeal as having been improvidently allowed.
Appellant filed his third amended complaint on June 29, 1992. The complaint listed appellee as the sole defendant in the action. The complaint alleged that appellant suffered the traumatic amputation of his left arm and other injuries as a direct and proximate cause of appellee's "defective design of an unguarded rotating shaft of a hydraulic power source and mandrel coupling."
On August 6, 1993, appellant filed a motion for separate trials on the liability and damages issues. On September 28, 1993, the trial court granted the motion for separate trials and set the liability trial for February 28, 1994.
On February 16, 1994, appellant filed a motion in limine to exclude certain records of the Occupational Health and Safety Administration's (OSHA) investigation of the accident. In a memorandum accompanying the motion, appellant noted that because the sawmill equipment involved in the accident had been sold and cannot be located, appellant deposed John T. Phillips, one of two OSHA employees who conducted the investigation after the accident. During the videotaped deposition, appellant asked Phillips to identify two schematic drawings of the pump head, mandrel coupler, mandrel shaft, and various measurements that he made during the investigation. Phillips testified that his drawings accurately portrayed the machinery involved in the accident.
In his memorandum in support of his motion in limine, appellant raised five arguments in support of excluding the above OSHA documents. On February 24, 1994, appellee filed a memorandum directly responding to each of the five arguments.
On the same day appellant filed his motion in limine, appellee filed a "motion in limine to admit evidence of OSHA violations and investigation file." Appellee noted that appellant intends to introduce at trial: (1) the schematic drawings contained in the OSHA investigation file; (2) OSHA regulations; (3) ANSI regulations; and (4) other federal regulations that appellant listed as proposed exhibits. Appellee argued that appellant's intentions in this regard "call into question the continuing sincerity of appellant's objections" to the use of the OSHA documents.
On February 25, 1994, the trial court held a hearing on appellant's motion in limine and appellee's "motion in limine to admit evidence." At the hearing, the trial court addressed each of the five arguments appellant raised in his memorandum in support of his motion in limine. Next, we will describe each of those five arguments, together with appellee's response and the trial court's in limine ruling on each of the arguments.
In his first argument, appellant asserted that Evid.R. 408(2), the compromises and offers to compromise rule, bars the first OSHA document, the informal settlement agreement between OSHA and the A & F Lumber Company. In response, appellee argued that because no valuable consideration was involved in the informal settlement agreement and because Evid.R. 408 provides that it "does not require exclusion when the evidence is offered for another purpose," Evid.R. 408(2), the compromises and offers to compromise rule, does not bar the first OSHA document which was offered for the purpose of proving proximate cause. The trial court, noting that the employer's negligence is at issue in the case sub judice as a possible superseding or intervening cause, barred admission of the first OSHA document.
In his second argument, appellant asserted that Evid.R. 407, the subsequent remedial measures rule, bars the second, seventh, and tenth OSHA documents. In response, appellee argued that Evid.R. 407, the subsequent remedial measures rule, should not bar evidence of subsequent remedial measures taken by an employer in a product liability case premised upon strict liability in tort. The trial court, again noting that the employer's negligence is at issue in the case sub judice as a possible superseding or intervening cause, barred the second, seventh, and tenth OSHA documents.
In his third argument, appellant asserted that Evid.R. 410, the inadmissibility of pleas, offers of pleas, and related statements rule, bars the third OSHA document, which describes the OSHA citations and penalty levied against A & F Lumber. Appellee responded that because the third OSHA document addresses the proximate cause issue, Evid.R. 410, the inadmissibility of pleas, offers of pleas, and related statements rule, does not bar the third OSHA document. The trial court held that the third OSHA document would be admitted.
In his fourth argument, appellant asserted that Evid.R. 402 bars the fourth OSHA document, the ANSI regulation titled "Safety Requirements for Sawmills, ANSI-02.1-1968," unless a foundation establishes the relevancy of the document. In response, appellee agreed with appellant. The trial court held that notwithstanding appellee's agreement with appellant, the ANSI regulations would be admitted, assuming a proper foundation establishes the relevancy of the regulations.
In his fifth argument, appellant asserted that because the identities of witnesses in the fifth, sixth, eighth, and ninth OSHA documents have been obliterated, Evid.R. 403(A), the "probative value is substantially outweighed by the danger of unfair prejudice" rule, bars those documents. Appellee responded by noting that the information in the fifth, sixth, eighth, and ninth OSHA documents addresses the proximate cause issue. The trial court stated that those documents would be admitted, provided the documents are edited to delete the hearsay statements in the documents.
The trial court began the liability trial as scheduled on February...
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