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Breaking Legal Developments

10-11-2004

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Minnesota Court Approves Microhardness Test In Product Failure Case.


(1) MINNESOTA COURT APPROVES MICROHARDNESS TEST IN PRODUCT FAILURE CASE.

In Nelson v. Stanley, unpublished, No. A03-1790, (Sept. 21, 2004), Stanley Works appealed from the district court's denial of its motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Stanley argued it was entitled to JNOV because the jury's finding of a manufacturing defect was not supported by the evidence and further argued it was entitled to a new trial because it was prejudiced by evidentiary errors. The Minnesota Court of Appeals disagreed affirming the judgment and upholding the expert testimony on microhardness (Editor's Note-often employed in fire product cases) of the failed product.

Respondent Brian Nelson was employed by Agri-Systems of Waterville. Agri-Systems is engaged in the grain handling business, which includes erecting grain bins. A grain bin is erected by stacking "rings" of metal sheets on a cement base with a roof welded to the top ring. Each ring consists of five metal sheets that are bolted together along vertical seams to form a circle.

In the summer of 1999, Nelson and another employee, Peter Groh, were sent to a local farm to assist the property owners in erecting a grain bin. Nelson was working inside the bin putting nuts on the bolts as Groh pushed a bolt through each hole. During this process, Groh used a Stanley long-aligning punch to align the boltholes. As Groh and Nelson were working on a ring, the aligning punch broke. A fragment struck Nelson in the eye. Nelson was eventually taken to the Mayo Clinic, where emergency eye surgery was performed.

Nelson sued Stanley for strict liability in tort, alleging the aligning punch was unreasonably dangerous. Agri-Systems was later added as a third-party defendant. The two major issues at trial were whether Nelson should have been wearing safety goggles and whether the aligning punch was defective. During the course of the trial, Nelson conceded that his only theory of strict liability was that the aligning punch contained a manufacturing defect, which caused the tool to break.

To prove the tool was defective, Nelson introduced two sets of manufacturing specifications for the aligning punch: the American National Standards Institute (ANSI) safety requirements for metal punches and drift pins, ANSI B209.2, and Stanley's manufacturing specifications. Both specifications require specific areas of the aligning punch to have a certain level of hardness on the Rockwell C scale of hardness, but Stanley's specifications were more exacting than the ANSI specifications.

Nelson offered the expert testimony of John Brynildson. Brynildson is a professional engineer who specializes in metallurgy and material engineering. He testified that the higher a piece of metal scored on the Rockwell C hardness test, the more likely the metal is to break rather than bend when force is applied to the metal. He also testified as to the likely reason this particular tool broke. He noted that the break was a "[b]rittle looking fracture, very smooth.” He testified that he examined an "exemplar" tool of the very same make and model as the tool that injured Nelson. He testified that the exemplar tool was softer than the broken tool and showed signs of bending.

Brynildson testified to the protocol he used to test the hardness of the broken tool. Under the protocol, the testing involved visual observations, chemical testing to determine the metal's composition, "macrohardness" testing, and a "microstructure analysis.” The microstructure analysis, after the results were converted to Rockwell C, returned a range from 57 to 59. He testified that all ten of the numbers returned were higher than Stanley's manufacturing specifications. He also testified that the microstructure testing produces "a more reliable reading because you're not just testing the surface.” When asked for his opinion on whether the broken tool contained a manufacturing defect, Brynildson stated:

The fact that it exceeded the hardness even specified in the Stanley spec, plus the fact that there was no deformation in the area of the fracture that would indicate that this was not in the condition that it would make it reasonable to use. So I would call it unsafe . . . I think, defectively manufactured.

Stanley questioned Brynildson on whether the readings from the microhardness testing could reliably be converted to Rockwell C, and specifically questioned Brynildson on the meaning of ASTM E18. Brynildson responded, "You can't take like a Rockwell B into C to a Rockwell N. You are working from different base materials. You really can't make a correct conversion. When it says special cases, that's talking about basically the microhardness and that's already been established what those conversions are.” Stanley had also moved the district court, in limine, to exclude all of Brynildson's testimony, but the court denied the motion.

The owner of Agri-Systems, John Jewison, also testified about his experiences with aligning punches as they were used to construct grain bins. Jewison testified that he has personally repaired or built hundreds of grain bins. Further, he had used aligning punches similar to the broken one, "all of [his] professional life" and had never had one break.

Nelson also presented testimony from Bradley Meyer, a former Agri-Systems crew chief, regarding another aligning punch that broke shortly after Nelson was injured. Meyer testified that he has worked for Agri-Systems from September 1989 until October 1999 and that prior to Nelson's injury he was unaware of an aligning punch ever breaking, although he had seen them bend. He testified that the other aligning punch that broke as he was using it to align grain bin panels showed no signs of bending similar to the tool that injured Nelson. The punch that broke when Meyer was using it, however, was discarded and not available at trial.

Stanley had moved the district court to exclude all testimony related to the later aligning-punch fracture. At the conclusion of a pretrial hearing, the court excluded testimony related to the second aligning punch, but was willing to permit Nelson to make an additional offer of proof regarding the second tool with Meyer's testimony. On the second day of trial, the court reversed itself and allowed the jury to hear testimony on the second broken aligning punch, finding that both aligning punches were "manufactured in the same plant, . . . purchased at the same time, . . . used for the same purpose, and . . . substantially similar circumstances of aligning holes."

Stanley's own expert, Stephen Crosby, was called to testify whether the aligning punch was defective. Crosby is Stanley's chief engineer for materials. Crosby also performed a microhardness analysis. He testified he performed the test because it "was an opportunity to understand, again, from another source of information what might be going on in the part, in terms of the hardness variation.” He admitted that microhardness was "a valid hardness test" but "the only thing that might be called a weakness is if you're attempting to do a conversion. It can only be approximate."

The jury by special verdict found the aligning punch was in a condition unreasonably dangerous to the user because it contained a manufacturing defect and apportioned 40% of the fault for Nelson's injury to Stanley. The jury also found Agri-Systems to be 40% at fault and Nelson to be 20% at fault. Following the verdict, Stanley moved for JNOV, or in the alternative, a new trial. The district court denied both motions and entered judgment in favor of Nelson for $250,049.

Stanley argued the district court erred in not granting its motion for JNOV. The standard of review is de novo because the district court grants a JNOV when the "verdict is manifestly against the entire evidence or . . . despite the jury's findings of fact, the moving party is entitled to judgment as a matter of law.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). But "[w]here JNOV has been denied by the trial court, on appellate review the [district] court must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.” Id. (quotation omitted). The jury's verdict should not be set aside "[u]nless the evidence is practically conclusive against the verdict.” Id. (quotation omitted). "The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.” Id.

In order for a plaintiff to recover on a theory of strict liability in Minnesota, it must be proven:

(1) that the defendant's product was in a defective condition unreasonably dangerous for its intended use, (2) that the defect existed when the product left the defendant's control, and (3) that the defect was the proximate cause of the injury sustained.

Marcon v. Kmart Corp., 573 N.W.2d 728, 731 (Minn. App. 1998) (quotation omitted), review denied (Minn. April 14, 1998). Proof of a manufacturing defect is one method by which a plaintiff can demonstrate the manufacturer's product is defective. See Restatement (Third) of Torts, Products Liability § 2 (1998) (stating product can be defective because of defect in manufacture, design, or warning).

Stanley argued that the only inquiry relevant to establish that a product acquired a defect during the manufacturing process is how the product at issue compares to a "flawless product" built to the company's exact specifications and the evidence in this case is insufficient to support such a finding. The Appellate Court disagreed with Stanley on both counts. First, the district court gave a case-specific adaptation of CIVJIG 75.30, stating:

One who sells a product in a defective condition, unreasonably dangerous to the user is subject to liability for the physical harm thereby caused by the user of this property.

. . . .

A defective condition may be the result of the manner in which the product was manufactured, inspected, or tested. A product is in a defective condition, unreasonabl[y] dangerous, if it fails to perform reasonably, adequately and safely in the normal anticipated or specific use to which the manufacturer intends it to be put. To state it differently, a product is in a defective condition, unreasonably dangerous if [it] presents any danger that would not be contemplated by the ordinary user who uses the product with the knowledge common to the community as to the product's characteristics and common use.

Because Stanley did not object to this jury instruction, the instruction defines what constitutes a defective product in this case. See Furlev Sales & Assocs. v. North Am. Auto. Warehouse, 325 N.W.2d 20, 28 (Minn. 1982)(stating if jury instructions are not objected to at trial or in a post trial motion, they become "the law of the case"); see also Bilotta v. Kelly, 346 N.W.2d 616, 622 (Minn. 1984) (stating an earlier version of CIVJIG 75.30 was formulated for inadvertent manufacturing flaws). Thus, Nelson needed to show that the aligning punch failed to perform reasonably, adequately, and safely in the normal anticipated use for which the manufacturer intended the product to be used. If the record contains such evidence, a court will not set aside the jury's verdict. See Pouliot, 582 N.W.2d at 224 (stating appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence).

The jury heard testimony from multiple witnesses that the ordinary users of the aligning punch would expect the aligning punch to bend but not break when used to align boltholes. Jewison testified he had used aligning punches similar to the broken one all of his professional life and had never had one break. Further, Meyer testified that he worked for Agri-Systems from September 1989 until October 1999 and that prior to Nelson's injury, he was unaware of an aligning punch ever breaking, although he had seen them bend. This testimony supports the jury finding that the long aligning punch failed to perform reasonably, adequately, and safely in the normal anticipated use. See Seidl v. Trollhaugen, Inc., 305 Minn. 506, 508, 232 N.W.2d 236, 239 (1975) (stating single witness's testimony is sufficient to support verdict).

Second, the jury was presented with evidence that the aligning punch did not conform to Stanley's flawless product. Brynildson testified that the aligning punch's hardness under the microhardness analysis was harder than Stanley's specifications and that was the reason it broke. Further, Stanley's own expert testified that the microhardness test results did not fit within its print requirements. Viewing this testimony in the light most favorable to the verdict, we conclude that there is competent evidence to support the jury's verdict. See Pouliot, 582 N.W.2d at 224.

Stanley also argued that the district court erred in admitting Brynildson's testimony of the exemplar tool that bent and all reference to the second aligning punch that broke because the evidence was irrelevant and prejudicial. The district court has discretion to admit or exclude evidence, and its rulings will not be reversed unless they constitute an abuse of discretion or are based on an erroneous view of the law. TMG Life Ins. Co. v. County of Goodhue, 540 N.W.2d 848, 851 (Minn.1995).

Stanley had filed motion in limine to exclude both Brynildson's testimony and all testimony regarding the second broken aligning punch. Thus, Stanley has preserved both issues for appeal. See State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002) (stating "party need not renew an objection to the admission of evidence to preserve a claim of error for appeal following a ruling on a motion in limine").

Relevant evidence that is not prohibited by state or federal constitutions, statutory requirements, or by rules of evidence is admissible. Minn. R. Evid. 402. Rule 401 provides: "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

The court first addressed the evidence of the second tool that broke shortly after Nelson was injured. The testimony showed that the two aligning punches were purchased at the same time as part of the same box of tools, were used in the same manner, were manufactured at the same plant, and broke in a similar manner. In light of the testimony of Jewison and Meyer that neither one had ever known an aligning punch to break, the fact that the second tool broke under the circumstances here is relevant to whether the first aligning punch broke because of a manufacturing flaw. See Indep. Sch. Dist. No. 181 v. Celotex, Corp., 309 Minn. 310, 313, 244 N.W.2d 264, 266 (1976) ("Evidence of 'similar happenings' is relevant even if they occur after the injury or loss."); see also Charles T. McCormick, McCormick on Evidence § 185, at 647 (John W. Strong, et al. eds., 5th ed.1999) (noting probative value may change "depending on its relationship to the other evidence in the case").

Stanley also argued that Brynildson's testimony regarding the exemplar tool was irrelevant. Brynildson testified that the exemplar tool was the very same make and model as the tool that injured Nelson and showed evidence of bending, which he stated a properly manufactured aligning punch should do. The fact that the very same tool bent when the aligning punch at issue did not suggests it is more probable that the aligning punch at issue was manufactured to be too hard—a central issue in this case. See id. The testimony regarding the exemplar tool was relevant.

Stanley argued that both Brynildson's testimony and the testimony regarding the second aligning punch should have been excluded as unduly prejudicial. Under Minn. R. Evid. 403, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, however, "favors the admission of relevant evidence by requiring a determination that its probative value be 'substantially' outweighed by the dangers listed in the rule." Id. at comm. cmt.

The question before the court was not whether the Court of Appeals would have ruled differently; rather, it is "for the [district] court to consider whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice . . . and [an appellate court] will reverse only when the discretion of the [district] court has been clearly abused." Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 229 (Minn. 1986). Stanley asserts that the evidence was severely prejudicial or clearly confused and misled the jury. An Appellate court will not conclude a district court clearly abused its broad discretion based on mere assertions. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).

The court noted that Stanley stated that "what is most disconcerting" is the manner in which the district court admitted the evidence of the second broken tool because Nelson's theory of the case changed from that of a flawed tool to that of a flawed "batch." A plaintiff's theory of the case changing after the defense's opening statement is a possibility in any trial and does not automatically result in prejudice. See State v. Bland, 337 N.W.2d 378, 382 (Minn. App. 1983) (concluding criminal defendant not prejudiced when witness state referred to in its opening statement did not testify). Additionally, Stanley had its entire case in chief and its closing argument, to rebut Nelson's "new" theory. See Krein v. Raudabough, 406 N.W.2d 315, 320 (Minn. App. 1987) (concluding district court did not abuse its discretion in allowing respondent's closing argument because appellant's attorney "was free to balance any improper focus when he made his own closing argument to the jury").

Furthermore, at the time the district court admitted the evidence the court unambiguously provided that Nelson could offer additional proof to connect the second aligning punch and the one that injured Nelson. Stanley could not have been unfairly surprised when the district court admitted testimony regarding the second broken aligning punch after Nelson offered additional proof. See id. (stating district court properly admitted evidence when any unfair surprise was caused by appellant's failure to act on information within his possession).

Stanley also alluded to its inability to test the second aligning punch because Agri-Systems discarded the tool. But Stanley did so only in passing, and admits, "the question ultimately rests on whether the admission of this evidence tended to prove or disprove a material fact in issue in this case." Because Stanley has not made any argument that evidence of the second tool should have been excluded as a sanction for spoliation or how it was prejudiced by its failure to test the tool, the Appellate Court did not address the issue further.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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