EUGENE A. WRIGHT, Circuit Judge:
In this appeal we must decide whether a manufacturer's ignorance of an asbestos product's danger is a defense to a wrongful death claim based solely upon a strict liability theory under Washington law. We hold that it is not.
FACTS AND PROCEEDINGS BELOW
In 1980, Leonard Kisor, an asbestos worker for 34 years, died of mesothelioma, an abdominal cancer that results from the inhalation of asbestos fibers.
At the close of her case in chief, Kisor abandoned her negligence claim and proceeded solely on a strict products liability claim. She then asked the judge to limit the anticipated testimony of the defense expert witnesses.
The judge let Owens-Illinois present its experts. Dr. Demopoulos testified at length concerning industry standards for workplace exposure to asbestos dust during the decade Owens-Illinois produced Kaylo.
According to Demopoulos, the safe level recommended by government industrial hygienists as well as independent scientists was an asbestos density in the work environment below five million particles per cubic foot. He also testified that Owens-Illinois kept well within this Threshold Limit Value, or TLV, at its own plants and advised users of Kaylo to do so and to control excess asbestos dust. Kaylo contained no other warnings. Two other witnesses, former employees of Owens-Illinois, gave testimony consistent with that of Demopoulos as to Owens-Illinois's conformity with industry custom and its ignorance of the long-term harm associated with low-level asbestos exposure.
Before closing argument, the district judge instructed the jury on Washington law governing products liability claims.
Owens-Illinois's counsel emphasized in closing argument that its ignorance of the harm resulting from workers' exposure to
ISSUES ON APPEAL
Kisor raises two issues:
STANDARD OF REVIEW
Evidentiary rulings are reviewed for abuse of discretion and will not be reversed absent some prejudice. Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th Cir.1985). To reverse, we must say that more probably than not, the error tainted the verdict. Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983).
In reviewing jury instructions we must determine whether, viewing the instructions as a whole, the court gave adequate instructions on each element of the case to ensure that the jury fully understood the issues. Fiorito Bros., Inc. v. Fruehauf Corp., 747 F.2d 1309, 1315-16 (9th Cir.1984). We must consider whether the instruction is misleading or states the law incorrectly to the prejudice of the objecting party. Coursen, 764 F.2d 1329, 1337 (9th Cir.1985).
We review the district court's determination and application of state law de novo. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).
Evidence of Manufacturer's Knowledge
In this diversity suit, the substance of Washington law applies. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We must decide as we think the state's highest court would. To decide if it was an abuse of discretion to admit evidence of Owens-Illinois's knowledge at the time of Kisor's exposure, we must determine whether Washington law allows the "manufacturer's knowledge" defense offered at trial.
In another case we asked the Washington Supreme Court to decide the admissibility of evidence of compliance with industry customs and standards when offered by the defendant as evidence of the reasonable expectation of the ordinary consumer. Its answer:
Owens-Illinois's inquiries about medical knowledge in the industry and industry standards impermissibly put negligence concepts before the jury. These are irrelevant in a strict products liability case under Washington law. Nor should the defense have been allowed to argue in closing that ignorance of the product's danger is a defense to strict products liability. This argument misstated the state law and, coupled with the expert testimony, allowed the jury to conclude that if Owens-Illinois did not know of the danger of its product, it could not be held liable.
Kisor was prejudiced by the admission of evidence not relevant to her strict liability claim, and we conclude that refusal to exclude such evidence was an abuse of discretion.
Instruction on Manufacturer's Knowledge
Kisor contends that the court's failure to give Plaintiff's Instruction No. 10 let the jury weigh improper evidence and decide the case on an improper standard of liability. She argues that this instruction was necessary to tell the jury that a manufacturer's lack of knowledge of the harmful characteristics of its product is not a defense to a strict liability claim under Washington law.
We agree that under Washington law the instruction was necessary. When considered with the erroneously admitted evidence of the manufacturer's knowledge, the instruction given, albeit an accurate statement of the law of strict liability, suggested improperly that recovery under a strict liability theory requires proof of negligence. Washington law is unequivocal:
Owens-Illinois's reliance on Gammon v. Clark Equipment Co., 104 Wn.2d 613, 707 P.2d 685 (1985), is misplaced. The Washington court held there that the trial court's failure to give a similar instruction (seller liable despite exercise of reasonable care) was not an abuse of discretion.
However, Gammon was tried on theories of both negligence and strict liability. The court found that the instructions given "[did] not interject negligence principles into the strict liability cause of action." Id. at 618, 707 P.2d at 687.
Here, only a strict liability theory was given to the jury. The error in admitting evidence of the manufacturer's knowledge and conduct allowed it to conclude that an absence of manufacturer's negligence was relevant and was a defense to the strict liability claim. This was error.
We think the Washington Supreme Court, if confronted with this case, would find that Kisor's proposed Instruction No. 10 was necessary to "properly inform the trier of fact of the applicable law." Id. at 617, 707 P.2d at 687. Here, the proposed instruction was necessary to state Washington law correctly and to avoid misleading the jury. The refusal to give the instruction was error.
The admission of evidence as to the manufacturer's knowledge was an abuse of discretion. Given the admission of this evidence, the failure to give Kisor's requested instruction (that manufacturer's knowledge is not a defense to a strict liability claim under Washington law) was error.
We reverse and remand for a new trial.
Kisor renewed her objection when the magistrate presided over the final day of testimony. Finally, she moved for a mistrial based on the improper argument of negligence principles and closing arguments, and renewed her objection to the defense expert witness' testimony. We find that Kisor's objections to the admission of the testimony of Owens-Illinois' expert witnesses were adequate to preserve them for our review.
Nor did Kisor waive her objections by cross-examining Owens-Illinois's expert witnesses. The judge expressly set the direction of trial proof by overruling her objection, and she did not waive the objection by proceeding in accord with the court's ruling. See United States v. Hogan, 763 F.2d 697, 701 (5th Cir.1985).
Owens-Illinois contends that it was entitled to introduce evidence of then current medical knowledge to rebut "state of the art" testimony presented by Kisor in her case-in-chief. This contention is without merit. Kisor effectively "closed the door" on the issue of negligence by abandoning this theory of liability. We cannot say that Kisor put in issue the custom of the industry or the feasibility of alternative design so as to allow Owens-Illinois to meet that evidence. See Lenhardt, 102 Wn.2d 208, 213-14, 683 P.2d 1097, 1100 (1984). Kisor alleged that the asbestos product manufactured by Owens-Illinois was not reasonably safe based upon reasonable consumer expectations, and evidence of industry custom or standards should not have been allowed as a defense. See id. "The manufacturer's exercise of care and conversely its negligence are not matters that the jury need consider." Id. at 215, 683 P.2d at 1101.
Later, counsel continued to argue this ignorance defense: