Certiorari Denied June 1, 1976. See 96 S.Ct. 2229.
WEBSTER, Circuit Judge.
Once again this Court is called upon to forecast whether a state (this time Missouri) would apply the "second collision" or "enhanced injury" doctrine to a products liability case within its jurisdiction.
The operative facts are well established by the record. On October 9, 1969, Thomas Polk was driving a 1970 Ford Maverick at approximately 45 to 50 miles per hour on Interstate 70 in Kansas City, Missouri. His passenger was Demple Martin. A car driven by Edward Farage in the same direction at a rate of speed estimated to be 90 to 100 miles per hour struck the Maverick at its right rear section, causing it to jump a nine-inch curb and strike a concrete retaining wall dividing the eastbound and westbound lanes. The Maverick rebounded from the retaining wall, overturned, and slid on its roof approximately 100 feet before coming to rest. The roof supports collapsed and the car burst into flames. Polk, who was thrown partially outside the car at the rear window on the driver's side, observed gasoline flowing toward him from the rear of the automobile. He was able to extricate himself from the automobile through the window. The serious burns which he suffered in the process were his only injuries. Martin was pinned in the Maverick and burned to death.
Polk and Ethel Marshall, the guardian of Demple Martin's minor children, each filed suit in the United States District Court for the Western District of Missouri against Ford Motor Company, the manufacturer of the 1970 Maverick.
The evidence at trial revealed that the 1970 Maverick used a flange-mounted fuel tank which was an integral part of the automobile's structure, its top constituting the floor of the trunk. In 1969, the year the 1970 Maverick was manufactured, all other American-made cars, excepting only Ford's low-priced compact models, used a strap-mounted fuel tank which was attached to the underbody of the car and was not an integral part of the car's structure. It was plaintiffs' contention that the flange-mounted fuel tanks were rigid on impact and more likely to produce a fire or explosion on impact from the rear, and that the collapsed roof supports contributed to the injuries of Polk and death of Martin by obstructing escape. In other words, the plaintiffs contended that the 1970 Maverick was unreasonably dangerous to the user.
The injuries complained of did not occur until after the Maverick had come to rest, upside down, and caught fire. Thus, the issue presented for decision is whether Ford may be liable to plaintiffs under the "second collision" or "enhanced injury" doctrine. On appeal, Ford contends that it was error to submit the case to the jury on this theory because (1) liability thereunder is not in accord with the law of Missouri and (2) there was insufficient evidence of defective
Application of the Enhanced Injury Doctrine in Missouri
In undertaking the sometimes thankless task of anticipating the predispositions of a state court on an issue of state law not yet determined, we are admonished
Yoder v. Nu-Enamel Corp., 117 F.2d 488, 489 (8th Cir. 1941).
The second collision doctrine, enhanced injury doctrine, or defect-enhancing doctrine, as it is variously called, is the legal concept which imposes liability based on the construction or design of a product which causes enhanced or greater injuries in the course of or following an initial accident or collision brought about by some independent cause. The landmark decision Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968), adopted the enhanced liability doctrine in a Michigan diversity case and held:
391 F.2d at 502-03.
A growing number of courts have adopted the enhanced liability doctrine,
In 1969, the Supreme Court of Missouri embraced the view of strict liability in its entirety for defective products set forth in Restatement (Second) of Torts § 402A (1965).
It is true that some pre-Keener cases speak of the manufacturer as not being "an insurer", Stevens v. Durbin-Durco,
In a post-Keener case, the Missouri Court of Appeals held that under appropriate facts misuse may fall within the area of reasonable anticipation. In Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943, 948 (Mo.App.1970), the court said:
In each post-Keener case, the Missouri courts have reaffirmed their purpose, originally stated in Keener, "to insure that the costs of injuries resulting from defective products are borne by the manufacturers [and sellers] that put such products on the market rather than by the injured persons who are powerless to protect themselves." Keener, supra, 445 S.W.2d at 364, quoting Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (1962); see Giberson v. Ford Motor Co., supra, 504 S.W.2d at 9-10.
We think it is clear that under Missouri law of strict liability, as expressed in Higgins, supra, the critical element is the presence of a defect making the product unreasonably dangerous when put to a use reasonably anticipated. In other words, the Keener path is not so much the path of "duty" but is rather a broader path which holds that "[t]he intended use doctrine necessarily includes foreseeable consequences of (unintentional) misuse." Hoppe v. Midwest Conveyor Co., 485 F.2d 1196, 1201 (8th Cir. 1973) (applying Missouri law).
Applying these principles espoused by the Missouri courts, we have no difficulty in concluding that under Missouri law a manufacturer may be held liable for those injuries shown to have been caused or enhanced by a defective condition of a product which was being used in a manner reasonably anticipated in the course of or following an initial accident brought about by some independent cause.
Sufficiency of the Evidence
The District Court refused Ford's motion for directed verdict and instructed the jury on the theory of enhanced injuries caused by defects in manufacture or design. Appellant contends that even if Missouri would recognize the second collision or enhanced injury doctrine, the evidence was insufficient to submit the case to the jury on this theory. Specifically, appellant contends that there was no evidence from which a jury could find that the 1970 Maverick was defectively designed in light of the "state of the art" in 1969. See Larsen v. General Motors Corp., supra, 391 F.2d at 502-03.
Experts testified that strap-mounted tanks were in general use by manufacturers in 1969 when Ford designed the flange-mounted tank for the 1970 Maverick, and that the use of a flange mounting caused the tank to rupture under the conditions involved in this accident. It was conceded that strap mounting could have been used for the installation of the fuel tank on the 1970 Maverick involved in the accident. Experts testified that the roof supports were inadequately and defectively designed, causing the exit routes to be seriously impeded after the accident and thus enhancing
Our test of the sufficiency of the evidence is as follows:
Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir. 1960). Applying this test, we conclude that the evidence was sufficient to submit the case to the jury on the doctrine of enhanced injury.
Appellant contends next that the instructions to the jury were prejudicially erroneous in that, contrary to the law of Missouri, the instructions permitted the jury to award damages for all of the injuries suffered in the accident and not merely the enhanced injuries due to the defect in manufacture. Appellant argues (1) that the court's instruction did not require the jury to determine "what injuries to plaintiff and plaintiff's decedent were attributable to the alleged design defects in the 1970 Maverick" and (2) that appellant and the driver of the other automobile were treated as joint tortfeasors by the language of the instruction which allowed recovery of damages which "were proximately caused or contributed to be caused" by the defective condition of the automobile.
The instructions, read in context and as a whole, do not permit such latitude to the jury. The District Court charged the jury:
The appellees observe correctly that the negligent driver of the other car was a joint tortfeasor with Ford in respect to the enhanced injuries since there was no sufficient intervening cause to limit the driver's liability. On the other hand, Ford was not a joint tortfeasor in respect to any damages occurring prior to the fire; it is only the enhanced injuries for which Ford may be held liable in this case. Larsen v. General Motors Corp., supra, 391 F.2d at 503; see Passwaters v. General Motors Corp., 454 F.2d 1270, 1273-74 (8th Cir. 1972).
We think a fair reading of the instruction quoted above is that there may be recovery only for those injuries which were caused by the defective design and which would not have been sustained but for the design. The "contributed to be caused" language merely gives recognition to the fact that acts by others could set in motion a chain of circumstances under which the defective condition might produce or cause the enhanced injuries. The evidence was such that the jury could properly have found that all of the injuries were suffered after the car came to rest upon its roof and caught fire.
A more troublesome attack upon the instructions is found in appellant's argument that the District Court failed to require the jury to find, as a condition precedent to liability, that at the time of the injuries the 1970 Maverick was being used "in a way it was intended to be used." This is not a correct statement of the law of Missouri. See Point I, supra. The law of Missouri permits recovery despite unintentional misuse of the manufactured product, but only if that misuse could reasonably have been anticipated (foreseen) by the manufacturer.
In a second collision case under Missouri law, the element of foreseeability (reasonable anticipation) of misuse, becomes more significant. The manufacturer is entitled to have a jury consider whether or not the factors which precipitated the accident and injuries were of such nature that the manufacturer should reasonably have anticipated, at least in general terms, such use of the automobile under such circumstances.
When the instruction was offered without the Keener language, however, Ford made only a blanket objection that the instruction was not the law of Missouri. Fed.R.Civ.P. 51 provides that "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." (emphasis added). The form of objection could hardly be said to be "sufficiently specific to bring into focus the precise nature of the alleged error." Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645 (1943). See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2554 (1971), and cases cited therein. We therefore examine the instruction to see whether the plain error rule applies. See Fed.R.Civ.P. 51; O'Malley v. Cover, 221 F.2d 156, 159 (8th Cir. 1955). See also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2558, at 672 (1971).
In Keener, only the theory of strict liability was submitted to the jury. In this case, the issue of negligent failure to test and detect design defects in the flange-type assembly was also submitted to the jury. In its verdict directing instruction on this issue, the court did impose a requirement that the automobile be "unreasonably dangerous under foreseeable conditions" (emphasis added). In describing the theory of strict liability, the court explained plaintiffs' contention that the 1970 Maverick was defective "in that it subjected people in that car to unreasonable risks of injury in the event of a collision of the kind that was described in this evidence." (emphasis added). The court then said: "If you don't find that that defective condition existed and the plaintiff has not convinced you of that, then on that issue your verdict should be for the defendant."
We think this instruction, while it did not use the precise Keener terminology, required the jury to assess whether the automobile was unreasonably dangerous under the circumstances of the accident,
Other Trial Errors
We have considered other assignments of trial error and find them to be without merit.
Appellant contends that the District Court erred in permitting plaintiffs' counsel to cross-examine its expert witness with respect to model changes which occurred in Mavericks manufactured subsequent to the 1970 model. The District Court had ruled in advance that testimony could be received which showed Ford had ceased using flange-mounted fuel tanks in favor of strap-mounted tanks because "it would be a question of they had gone back to a prior type and had abandoned this type and that might very possibly be considered probative evidence that their experience with the flange-mounted tank was unsatisfactory, and I think it's a proper subject for cross-examination of an expert witness." Faced with this ruling, which we think was within the trial
Appellant contends that plaintiffs' expert witnesses should not have been permitted to express their opinions on the defective nature of the roof supports because there were no facts in evidence nor an independent investigation upon which such an opinion could be based. There must, of course, be sufficient facts already in evidence or disclosed by the witness as a result of his investigation to take such testimony out of the realm of guesswork and speculation. Gilbert v. Gulf Oil Corp., 175 F.2d 705, 709 (4th Cir. 1949). See Fed.R.Evid. 703.
In this case, experts testified for plaintiffs that the roof supports were defective and caused or contributed to cause the injuries by making escape difficult by collapsing. They based their opinions in part on the evidence that the automobile rolled over only once; other factors were considered which need not be repeated here. The qualification of experts and the admissibility of their opinions lies in the sound discretion of the District Court. Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634, 642 (8th Cir. 1975); Gisriel v. Uniroyal, Inc., 517 F.2d 699, 701-02 (8th Cir. 1975). Indeed, the newly adopted Federal Rules of Evidence make it clear that an expert may give his conclusions without prior disclosure of the underlying facts. Fed.R. Evid. 705. The weakness in the underpinnings of such opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony. We have reviewed the testimony complained of and find appellant's contention to be without merit. We also reject appellant's additional contention that the court erred in permitting the experts to testify concerning other accidents involving flange-mounted fuel tanks on 1970 Mavericks. Such testimony was used to establish the experience of the experts under substantially similar circumstances. Again, the weight of such testimony was for the jury, and the trial court did not abuse its discretion in permitting it in evidence.
We have considered the remaining contentions and find them likewise to be without merit. The use of a six-person jury in federal court under local rule was expressly approved in Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973); procedural matters are governed under federal law. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Upon a full review of the record, we discern no accumulation of errors which in the aggregate prevented appellant from receiving a fair trial.
The judgment is affirmed.
ROSS, Circuit Judge (concurring in part and dissenting in part).
I concur in all of Judge Webster's opinion except his determination that the failure to give the proper instructions did not constitute plain error.
I agree that Keener v. Dayton Electric Manufacturing Co., supra, mandates the giving of instructions requiring the jury to find that the Maverick was defective and therefore dangerous when put to a use reasonably anticipated. As Judge Webster points out, the failure to give such an instruction was held to be prejudicially erroneous in Keener.
In the original opinion Judge Webster filed a dissent in which he included the following paragraph:
Appellees contend that appellants failed to preserve this assignment of error, relying upon Fed.R.Civ.P. 51. I
I consider that paragraph to be a proper statement of the law; that the failure to give the proper instruction was plain error; that the alternative instructions stressed by Judge Webster in this opinion do not cure that plain error in that they fail completely to refer to a "use reasonably anticipated" by the manufacturer.
I would reverse and remand for a new trial for the reasons stated in Judge Webster's original dissent.