BOWMAN, Circuit Judge.
GACS Incorporated ("GACS") appeals from a judgment entered on a jury verdict awarding plaintiffs Ronald C. Torbit ("Torbit") and his wife, Susan Torbit, substantial damages in this product-liability action. Torbit, a truck driver, suffered serious injuries to his shoulder and neck resulting from his use of a GACS ratchet system to secure vehicles to a vehicle-hauling trailer. GACS claims the District Court erred by 1) admitting evidence of other truck drivers' injuries that were not substantially
The trial record, read in a manner favorable to the jury verdict, McGuire v. Tarmac Envtl. Co., 293 F.3d 437, 439 (8th Cir.2002), supports the following summary of the facts. Torbit worked for nearly eighteen years as a driver of specialized trucks used to haul new vehicles from the factory to the dealership. Torbit's duties required him to drive multiple vehicles onto the deck of a tractor trailer and secure each vehicle to the deck using a chain and ratchet system, then reverse the process upon reaching each vehicle's destination. On October 23, 1998, while using a tie-down bar to untie a vehicle secured by the ratchet system, Torbit felt a jerking motion and a slapping sensation between his neck and shoulder. Over the next few days, the pain became excruciating. Torbit was later diagnosed with a torn labrum
While on medical leave from his job as a car hauler, Torbit underwent three surgeries to correct or alleviate his injuries. These surgeries included two cervical-fusion operations to repair his herniated discs and an operation to repair his torn labrum. After his first cervical-fusion operation, Torbit's doctor imposed medical restrictions that prevented him from returning to his job as a car hauler because the job required lifting and loading. After a lengthy search for comparable employment, Torbit finally secured a driving job with another employer that required no lifting or loading, but at a fraction of the salary he had earned as a car hauler. Torbit worked at the new job until the pain he experienced became intolerable. Torbit then underwent the second cervical-fusion operation, and while he was recuperating he was terminated from his car-hauling job.
Then fifty-one years old, Torbit was particularly distressed that after having worked eighteen years toward his pension as a unionized car hauler, he could not work the additional two years required for his pension to partially vest. Further, Torbit's pension would have fully vested in seven years, after he reached twenty-five years of employment. Torbit therefore offered to sweep floors for his original employer to get the additional work time, but his offer was declined.
Torbit then persuaded his doctor to lift Torbit's medical restrictions, and he attempted to be rehired by his original employer as a car hauler. The employer, however, sent Torbit to a company doctor who refused to allow Torbit to return to work. Finally, Torbit invoked the union collective bargaining agreement and consulted a doctor designated by the union to determine Torbit's employability. Torbit literally begged this doctor to allow him to work for the two years necessary to receive his partial pension, and the doctor struck a deal with Torbit. He would be allowed to work, but if the pain prevented Torbit from working effectively, the medical restrictions would be renewed. His employer subsequently rehired Torbit as a car hauler.
Torbit's surgeries have left him with no flexibility in his neck and with aggravated
Alleging a design defect in the ratchet system, Torbit sued GACS, the designer and manufacturer of the ratchet system, based on a theory of strict product liability. Torbit claimed the ratchet system was defective because it required a driver to exert dangerously high force levels to utilize the system, and he claimed this defect caused his injuries. The matter was first tried before a jury in October 2001. The first trial ended when the District Court granted a motion by GACS for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure.
A second trial was held before a jury in November 2002.
At the close of evidence, GACS requested jury instructions based on comparative fault for Torbit's alleged over-tightening and failure to adhere to his training. GACS also requested a jury instruction that Torbit's testimony as to his loss of future income be disregarded given that Torbit was still working. The District Court allowed a comparative-fault instruction based on the over-tightening of the chain, but refused to give the instruction based on Torbit's failure to adhere to his training. The District Court also refused the instruction to disregard Torbit's testimony as to his loss of future income.
The jury returned a verdict in favor of Torbit, finding that the GACS ratchet system was defective and that the defect had caused Torbit's injuries. The jury started with a base award of $770,000 for Torbit's damages. It then reduced that amount by ten percent for Torbit's comparative fault in over-tightening the chain, resulting in a total award for Torbit of $693,000. In addition, the jury awarded $30,000 to Susan Torbit for loss of consortium, which also was reduced by ten percent for Torbit's
GACS first claims it was error to admit the two charts offered by Torbit's expert witness summarizing driver injuries because there was no showing that those driver injuries were substantially similar to Torbit's injuries.
We hold that the District Court did not commit a clear and prejudicial abuse of its discretion when it allowed Torbit's expert to use the charts. The expert stated that "a large percentage of the [total] injuries incurred by drivers were incurred during the tying and untying process." Trial Tr. vol. IV at 61.
Next, we address GACS's argument that the District Court erred by refusing a comparative-fault instruction based on Torbit's failure to adhere to his training.
The Missouri statute regarding comparative fault in product-liability cases specifically limits "fault" to six uses or failures by the plaintiff. See Mo.Rev.Stat. § 537.765.3 (2000). Of these six, the fault from which GACS's proposed jury instruction was derived was the "[u]se of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger." Id. § 537.765.3(3); Appellant's Br. at 30; Trial Tr. vol. VIII at 75. Therefore, the jury instruction requested by GACS was warranted if there was any evidence that 1) Torbit's training gave him knowledge and a reasonable appreciation of the danger involved in using the ratchet system, and 2) Torbit's failure to adhere to his training constituted a voluntary and unreasonable exposure to the danger. The burden of showing that the evidence warranted the instruction rested upon GACS. See Ford, 265 F.3d at 679.
GACS points to documents, admitted into evidence, on which Torbit's signature acknowledged that he received training in "loading and inspection techniques on Ryder ACD equipment," "the use of the tie-down bar and personal safety techniques on Ryder ACD equipment," and the "use of the tie-down bar in the ratchet system." Trial Tr. vol. III at 64-65. Torbit's signature on at least one of the documents acknowledged that he received instruction on personal safety taught from the Ryder ACD training manuals. Id. at 66. Drawing all reasonable inferences from this evidence in favor of GACS, it would be reasonable to infer that Torbit received the relevant training set forth in the instruction manual.
What we cannot reasonably infer from the evidence, however, is that Torbit had knowledge and a reasonable appreciation of the danger involved in using the ratchet system in a manner inconsistent with his training. Notably, it is unclear what type of injury was addressed by any safety training Torbit received. The training manual specified a method of untying the ratchet using a three-point stance in order to minimize "pulled muscles," id. at 112, and to prevent "slip and fall" accidents, Trial Tr. vol. II at 118. These are not of
We also cannot reasonably infer that Torbit's use of the ratchet system in a manner inconsistent with his training was voluntary and unreasonable. The training manual stated that when untying a car from the upper deck the driver should "refrain from climbing up on the equipment if at all possible." Id. at 126 (emphasis added). This left open the possibility that climbing on the equipment might be required in some situations. Indeed, Torbit stated he climbed on the equipment the day he was injured because he could not reach the ratchet from the ground. Trial Tr. vol. III at 75.
Further, although Torbit admits he was not using the recommended three-point stance when he was injured, id. at 111, he testified it was not possible to do so while untying the ratchet the day he was hurt, id. at 67-68. Similarly, the training supervisor called to testify about the training manual stated that a driver could not possibly maintain the three-point stance while releasing the ratchet on the trailer Torbit used. Trial Tr. vol. II at 119, 129. We cannot reasonably infer Torbit's failure to adhere to his training was voluntary or unreasonable without a showing that such adherence was possible.
For these reasons, even viewing the evidence in the light most favorable to GACS, there was no evidence to support the comparative-fault instruction based on Torbit's failure to adhere to his training. The District Court did not abuse its discretion by refusing the instruction.
Finally, GACS claims the District Court erred by allowing Torbit to testify about his damages for loss of future income and by refusing a jury instruction to disregard this testimony.
Under Missouri law, a plaintiff in a personal-injury case may recover for a loss of future earnings based on evidence that is reasonably certain and affords a reasonable basis for estimating the losses. Fairbanks v. Weitzman, 13 S.W.3d 313, 319-20 (Mo.Ct.App.2000) (citation to quoted
Torbit presented evidence of his earnings before he was injured and of his current earnings from the same employer. This evidence enabled the jury to make a reasonably certain estimate of what his future income would be. Torbit also produced substantial evidence of his injuries and their causal connection to his use of the ratchet system, his desire to work until his pension vested, and the agreement he struck with the union-designated doctor allowing him tentatively to return to work. The agreement removed existing medical restrictions that were based on serious injuries and that had prevented Torbit from returning to work, and its sole purpose was to allow Torbit to attempt to work until his pension vested. Torbit also testified about pain and suffering he was still experiencing at the time of trial, and this testimony satisfied the McPherson criteria.
GACS was free to argue to the jury, and did argue to a limited extent, that Torbit's retirement after his pension vested would be voluntary and not necessitated by his injuries. GACS was also free to argue that the question of whether or when Torbit actually would retire was purely speculative. Given the substantial evidence Torbit presented, however, the jury reasonably could infer that Torbit's injuries would necessitate an early retirement. The jury could also make a reasonably certain estimate of when that early retirement would occur and the amount of future income Torbit would lose as a result. Therefore, the District Court did not abuse its discretion by allowing Torbit to present evidence of his loss of future income or by refusing the jury instruction to disregard that evidence.
The judgment of the District Court is affirmed.