Wheeler v. John Deere Co.

Decision Date16 May 1991
Docket NumberNos. 90-3080,90-3120,s. 90-3080
Citation935 F.2d 1090
Parties33 Fed. R. Evid. Serv. 292, Prod.Liab.Rep.(CCH)P 12,850 Stephen Brent WHEELER, Plaintiff-Appellant and Cross-Appellee, v. JOHN DEERE COMPANY, a Delaware Corporation, Defendant-Appellee and Cross-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jefferson D. Sellers (Jack B. Sellers, with him on the brief), of Jack B Sellers Law Associates, Inc., Sapulpa, Okl., for plaintiff-appellant/cross-appellee.

Eric J. Magnuson (and Richard J. Nygard of Rider, Bennett, Egan & Arundel, Minneapolis, Minn. and Paul S. McCausland, Young, Bogle, McCausland, Wells & Clark, Wichita, Kan., with him on the brief), for defendant-appellee/cross-appellant.

Before MOORE and BALDOCK, Circuit Judges and ANDERSON, District Judge. *

BALDOCK, Circuit Judge.

Plaintiff-appellant and cross-appellee Stephen Brent Wheeler (Wheeler) lost his right arm while servicing a John Deere Titan series model 7720 combine. He brought this diversity case against the combine manufacturer, defendant-appellee and cross-appellant John Deere Company (Deere), on a strict products liability theory, alleging that the combine was unreasonably dangerous and that any warnings were inadequate. In the first trial, a jury found Deere 75% at fault and Wheeler's employer 25% at fault. The jury calculated Wheeler's damages at $3.1 million and the district court entered judgment of $2.3 million against Deere. We reversed the judgment and remanded for a new trial. Wheeler v. John Deere Co., 862 F.2d 1404, 1415 (10th Cir.1988) (Wheeler I ). On retrial, the second jury found Deere 68% at fault, Wheeler's employer 32% at fault, and determined that Wheeler suffered damages of $2,883,407. The district court entered judgment of $1,960,717 against Deere.

Wheeler appeals arguing that the district court should have (1) entered judgment in the amount of the first jury verdict, and (2) calculated postjudgment interest beginning from the date of the first judgment. Deere cross-appeals contending that the district court erred in (1) denying its motion to withdraw a stipulation made before the first trial, (2) admitting into evidence Deere's internal design and safety manuals as well as certain expert testimony, (3) formulating the special verdict and jury instructions, and (4) denying Deere's motion for judgment notwithstanding the verdict (j.n.o.v.).

Our appellate jurisdiction arises under 28 U.S.C. Sec. 1291. We find no error in the district court's entry of judgment for Wheeler, nor in its calculation of postjudgment interest. Likewise, the district court did not abuse its discretion in (1) holding Deere to the factual admissions contained in Deere's previous stipulation, (2) admitting Deere's design and safety manuals, and (3) allowing the testimony of Wheeler's expert witnesses. The district court's jury instructions provided a comprehensive statement of the governing legal principles and, together with special interrogatories, allowed the jury to consider all material issues. Finally, after reviewing the record, we conclude that Wheeler produced sufficient evidence to raise a jury question as to whether the danger giving rise to Wheeler's injury was open and obvious. We therefore affirm.

Background

The John Deere Titan series model 7720 combine is a self-propelled grain combine powered by a turbo-charged diesel engine. The 7720 combine drives through a field where it cuts and gathers the crop, separates the grain and deposits it into a tank located at the bottom of the combine. Two horizontal augers move the grain from the tank into a sump. A vertical auger then propels the grain through a spout and into a truck driving alongside. The grain augers are engaged by a lever located in the cab. The 7720 combine is equipped with a five-by-five inch cleanout door located at the bottom of the vertical auger. Deere affixed a decal approximately twenty-six inches from the cleanout door warning the operator to "[k]eep all shields in place," and "[d]isengage and shut off all engine and/or motor power before servicing or unclogging [the] machine." Wheeler I, 862 F.2d at 1407.

Wheeler spent the summer of 1981 working as a truck driver for Fenton Custom Combining Crew. The crew followed the wheat harvest from Oklahoma to Montana. On September 14, 1981, the Fenton crew had just completed harvesting wheat in Leoti, Kansas and was preparing a 7720 combine to harvest pinto beans. These preparations required the removal of residual wheat and chaff from the grain tank, vertical auger and sump. Larry Fenton, Wheeler's employer, removed the cleanout door from the vertical auger and reached inside the opening. In an attempt to dislodge the remaining wheat residue, Fenton removed his hand and directed Steve Milner, a combine operator, to start the engine and engage the auger from the combine's cab. Fenton and Wheeler stepped back while wheat residue spewed from the auger. The clogging persisted, however, and Fenton directed Wheeler to dig the grain from the auger and sump manually while Fenton attempted to kick the grain down into the sump from the grain tank. Milner disengaged the auger, but left the engine running. Unaware that Wheeler's hand was in the cleanout door, Fenton instructed Milner to engage the auger for a second time. Wheeler's arm immediately was drawn into the auger housing causing severe injuries which resulted in amputation.

Based upon strict products liability, Wheeler alleged that his injuries resulted from Deere's defective and unreasonably dangerous design of the 7720 combine. He claimed that the location and size of the cleanout door exposed consumers to an unreasonable danger, and that practicable design alternatives existed which would have eliminated this risk. Wheeler also alleged that Deere failed to provide adequate warnings of the hazards associated with the vertical auger cleanout door. Deere countered that the 7720 combine was not unreasonably dangerous and that Wheeler's injury resulted from his own negligence and that of his coworkers. Deere steadfastly insists that the danger of losing a hand while manually cleaning the combine's vertical auger and sump with the engine running is open and obvious to any reasonable operator; therefore, recovery is barred.

Prior to the first trial, Wheeler and Deere entered into a stipulation agreement which provided in pertinent part In 1979 when the John Deere Model 7720 combine ... was manufactured, it was technologically and economically feasible to design the vertical auger of the combine by incorporating a smaller rear cleanout door, trimming the auger flighting, and adding a second cleanout door on the front of the auger sump.

The technological and economic feasibility of using a cleanout door on the front of the auger sump housing would have prevented the accident from happening in this fashion.

IV R. doc. 160 at 34-35. Prior to the second trial, Deere sought to withdraw this portion of the stipulation; however, finding the stipulation to be factually accurate, the district court determined that the statements contained therein were "judicial admissions of fact" which could not be revoked. II R. doc. 149 at 18.

At trial, Wheeler presented ten witnesses, all of whom had lost portions of their arms in the vertical augers of John Deere Titan series combines. Each of these witnesses had extensive experience with farming equipment. From these witnesses, the jury heard testimony that some grain always remained in the auger and sump of the 7720 combine, even after running the auger after each use. 1 If not removed from the auger, this residual grain could swell and clog the mechanism, 2 or contaminate later harvests. 3 Despite the need to remove residual grain from the auger and sump, Deere provided no instructions to users of the combine on how to accomplish this task. 4 In the absence of such instructions, the common technique was to remove the lower cleanout door, engage the auger and allow the residual grain to escape through the door. Although this procedure violated Deere's admonition that all shields remain in place when the engine was running, several witnesses testified that it was impossible to clean completely the lower auger and sump while complying with this warning. 5

Several witnesses testified that a thorough cleaning was possible only by reaching into the auger and sump and scooping out the residual grain manually. 6 This procedure often involved two or more people because the auger had to be engaged from the cab. 7 It was impossible for the operator in the cab to observe the lower cleanout door to see if the second person was clear. 8 Although the auger was disengaged while the grain was being scooped out manually, the combine engine remained running because restarting a turbo-charged diesel engine in rapid succession may result in costly damage. 9 No warning label was near the lever engaging the auger to remind the cab operator to insure that no one was around the auger. 10 All of Wheeler's witnesses testified as to unexpected danger when, in the process of manual cleanout, the auger suddenly was engaged while the engine was running. 11

Wheeler's evidence was corroborated in significant respects by deposition testimony of two Deere engineers. Thomas Hitzusen, a product design engineer, admitted that certain maintenance functions on Titan series combines, including cleaning the vertical auger, required the engine to be engaged. Indeed, Hitzusen admitted having placed his hand inside the lower cleanout door while cleaning grain out of the auger when the engine was running. See IV R. doc. 160 at 12. Wayne Slavens, the other engineer, also admitted that opening the cleanout door and then engaging the auger "is a reasonable thing to do" when cleaning the vertical auger and sump. Id. at 13. The jury also saw an on-site demonstration of the 7720 combine and was permitted to examine it.

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