Rogers, Cosandra v. Ingersoll Rand Co

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 1998 Decided May 29, 1998

No. 97-7131

Cosandra Rogers,

Appellee

v.

Ingersoll-Rand Company,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 95cv00432)

Barry R. Ostrager argued the cause for appellant, with

whom Mary Beth Forshaw, Simona S. Gurevich, William H.

Robinson, Jr., and Terrence M.R. Zic were on the briefs.

Charles C. Parsons argued the cause and filed the brief for

appellee.

Before: Wald, Sentelle and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Ingersoll-Rand Company ap-

peals from judgment entered upon a jury verdict awarding a

total of $16.7 million in actual and punitive damages for

injuries arising out of an incident in which a machine manu-

factured by appellant backed over and maimed appellee Co-

sandra Rogers. Rogers had sued both in strict liability and

in negligence. On appeal Ingersoll-Rand asserts that the

district court erred in its jury instructions and in evidentiary

rulings, and raises a number of other issues. We find no

reversible error and affirm.

I. Background

On April 17, 1992, a crew of workers repaved a portion of

Military Road in the District of Columbia. Crew member

Terrell Wilson operated a 50,000 pound milling machine man-

ufactured by appellant Ingersoll-Rand (known as its model

MT-6520) which stripped away layers of asphalt from the

road. A crew member, appellee Cosandra Rogers, directed

traffic, making sure her co-workers were not injured by

passing cars.

Just before the crew was scheduled to break for lunch,

Wilson prepared to back up the milling machine. He looked

over his left shoulder and did not see Rogers, who apparently

was standing in a blind spot with her back to the machine.

As the machine slowly rolled backwards, its alarm--designed

to go off when the unit backs up--did not sound. The MT-

6520 backed onto Rogers's left foot, and then rolled onto her

leg. Rogers's pelvis was crushed, and her internal pelvic

organs were mangled. Her left leg was amputated. Her lost

limb included the sacroiliac joint so that she will never be able

to use a prosthesis and is as thoroughly confined to a wheel-

chair as if she were a paraplegic.

Invoking the diversity jurisdiction of the district court, 28

U.S.C. s 1332, Rogers sued Ingersoll-Rand, seeking compen-

satory and punitive damages resulting from her injury. She

sought to hold Ingersoll-Rand strictly liable for her injuries

as a result of the allegedly defective design of the MT-6520,

and also claimed that Ingersoll-Rand was liable for her

injuries because of its negligence in designing or manufactur-

ing the MT-6520.

At the conclusion of the trial, Ingersoll-Rand moved for

judgment as a matter of law as to liability and punitive

damages. The district court denied this motion. The jury

subsequently concluded that Ingersoll-Rand was liable for

Rogers's injuries and awarded her $10.2 million in compensa-

tory damages and $6.5 million in punitive damages. Inger-

soll-Rand then renewed its motion for judgment as a matter

of law and moved in the alternative for a new trial. The

district court denied the motions, see Rogers v. Ingersoll-

Rand Co., 971 F.Supp. 4 (D.D.C. 1997), and Ingersoll-Rand

appealed.

II. Discussion

A.

First, we shall take up Ingersoll-Rand's claim that the

district court erred when it failed to instruct the jury on its

so-called "warnings" defense. At trial, Ingersoll-Rand intro-

duced into evidence its Operation and Maintenance Manual,

which instructs users of its milling machine to (1) stay ten

feet away from the rear of the machine when it is operating;

(2) verify that the back-up alarm works; and (3) "check area

for people or obstructions in your line of travel." In addition,

the MT-6520 itself had a sign which warned people to stay

ten feet away.

Ingersoll-Rand proposed the following jury instruction,

which it captioned "Requirement of Warning":

Sometimes a product cannot be made reasonably safe,

but it is nevertheless desirable that the product be

manufactured and distributed because of its utility. In

such cases, it is the obligation of the manufacturer to

give appropriate warning of any dangerous condition

which is likely to be encountered.

If you find that the milling machine was accompanied by

adequate warning which made the milling machine safe

for use if the warnings are followed, then the milling

machine was not unreasonably dangerous and was not

defective, and you should find for defendant Ingersoll-

Rand.

The district court stated that "[t]he requirement of warning is

simply not proper law as stated in this [proposed instruction],

as far as the Court knows, which says that if you give a

proper warning there isn't anything else that [Ingersoll-

Rand] had to do." Accordingly, the district court declined to

give the proposed instruction, and rejected Ingersoll-Rand's

post-trial motions which claimed that this ruling was errone-

ous. Before us, Ingersoll-Rand renews its argument that the

proposed "warnings" instruction was mandated by the law of

the District of Columbia, and that the district court therefore

erred by refusing to give it.

We review a district court's denial of a motion for judgment

as a matter of law de novo. Scott v. District of Columbia, 101

F.3d 748, 752 (D.C. Cir. 1996). Ingersoll-Rand's proposed

instruction would have directed the jury to "find for [the]

defendant" if it found "that the milling machine was accompa-

nied by adequate warnings which made the milling machine

safe for use if the warnings are followed." This instruction

assumes that an adequate warning by itself would immunize a

manufacturer from any liability caused by its defectively

designed product. This is not a correct statement of applica-

ble law.

In this diversity action we apply the law of the District of

Columbia. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d

549, 553 (D.C. Cir. 1993) (noting the extension of the Erie

doctrine to the District of Columbia). When interpreting the

common law of the District of Columbia, we follow the

decisions of the District of Columbia Court of Appeals, which

is, for Erie doctrine purposes, treated as if it were the highest

court of the state. See D.C. Code Ann. s 11-102 (1981).

Under District of Columbia law, as interpreted by the District

of Columbia Court of Appeals, a plaintiff seeking to recover in

strict liability must establish that the injury-causing product

was sold in "a defective and unreasonably dangerous condi-

tion." Warner Fruehauf Trailer Co., Inc. v. Boston, 654 A.2d

1272, 1276 (D.C. 1995). Rogers alleged that Ingersoll-Rand

sold the MT-6520 in "an unreasonably dangerous condition,"

because it lacked certain safety features, such as rear-view

mirrors, kill switches, and a sufficiently reliable back-up

alarm.

In Warner Fruehauf, the District of Columbia Court of

Appeals applied a "risk-utility balancing test" to analyze

whether a design defect was unreasonably dangerous. 654

A.2d at 1276. Under this test, a plaintiff "must show the

risks, costs and benefits of the product in question and

alternative designs, and that the magnitude of the danger

from the product outweighed the costs of avoiding the dan-

ger." Id. (internal quotation marks and citations omitted).

The Warner Fruehauf court held that under a risk-utility

analysis, a manufacturer "is entitled to defend a strict liability

claim based on defective design by showing that a warning

accompanied the product that reduced its dangers." Id. at

1278 (citation omitted, emphasis added). Significantly, the

court stated that a manufacturer could show that warnings

"reduced" the dangers of its products--not that warnings

could eliminate such dangers altogether. Indeed, the Warner

Fruehauf court explicitly noted that "while the adequacy of a

warning is relevant and may even tip the balance in the

decision whether a product is or is not defectively designed, it

is not the sole consideration." Id. (emphasis added). "A

warning," it added, "is only one of a product's many design

attributes that weigh in the balance of dangers against utility

... but could be a pivotal design attribute in a particular

case." Id. (citation omitted).

Ingersoll-Rand's proposed instruction does exactly what

the District of Columbia Court of Appeals said was impermis-

sible: it elevates the adequacy of its warnings to the sole

consideration in the risk-utility analysis. As Ingersoll-Rand

would have it, once the jury evaluates the milling machine's

warnings and finds them adequate, its job is over; it "should

find for [the] defendant." Since the "warnings" defense

would have instructed the jury that adequate warnings trump

all other factors--including the "magnitude of the danger

from the product," see id. at 1276--Ingersoll-Rand's pro-

posed instruction misstates the law of the District of Colum-

bia.

Ingersoll-Rand argues that our decision in Ferguson v.

F.R. Winkler GMBH & Co. KG, 79 F.3d 1221 (D.C. Cir.

1996), provides authority for its proposed instruction. In

Ferguson, a bakery employee sought to hold the manufactur-

er of a device known as a "string-line proofer" strictly liable

for injuries caused by the device. The proofer shuttled

shaped pieces of dough along a bakery production line. To

gain access to misshapen pieces of dough which could clog the

line, workers were instructed to press a button to shut down

the line, and then to remove an exterior panel from the

proofer to gain access to the dough. The plaintiff's employer

purchased such a proofer and modified it, replacing an exteri-

or panel with a hinged plexiglass door, which could be opened

while the proofer was moving. While on the job, the plaintiff

lifted the plexiglass door, attempting to clear away some

dough, and the moving proofer injured his arm. In analyzing

whether the proofer was unreasonably dangerous, we con-

cluded that the manufacturer could not have reasonably

foreseen that its product would be modified in such a danger-

ous way, and that there was little chance that such an injury

would have occurred if the proofer had not been so modified.

Id. at 1225-26.

We also considered the proofer's operations manual, which

instructed users not to reach into a moving proofer, and a

large sign on the proofer itself, which stated that the proofer

should not be opened while it was running. Id. at 1226. We

concluded that these "obvious and repeated warnings would

have, if heeded, eliminated the risk of the injury that [the

plaintiff] suffered." Id. (citing Restatement (Second) of

Torts s 402A cmt. j (1965) ("Where warning is given, the

seller may reasonably assume that it will be read and heeded;

and a product bearing such a warning, which is safe for use if

it is followed, is not in defective condition, nor is it unreason-

ably dangerous.")).

Importantly, our analysis took into account both the design

of the unmodified proofer (including its safety features) and

the accompanying warnings about its use. We never stated

that warnings alone will necessarily save a product from

being unreasonably dangerous. Indeed, we observed that

"the D.C. courts have never explicitly announced that ade-

quate warnings may cure a design defect." Id. at 1226. It is

thus not correct that a manufacturer may, under the law of

the District of Columbia, merely slap a warning onto its

dangerous product, and absolve itself of any obligation to do

more. Ingersoll-Rand's claim that "[c]learly, under Fergu-

son, a manufacturer who provides an adequate warning need

not take any other measures to protect against foreseeable

misuse" simply misstates our holding.

We do not mean to dispute that warnings may tip the

balance in a manufacturer's favor in individual cases. See

Warner Fruehauf, 654 A.2d at 1278 ("A warning ... could be

a pivotal design attribute in a particular case.") (citation

omitted). On the other hand, warnings need not be the

dispositive factor in every case. Here, for example, it seems

reasonably foreseeable that a worker with her back to a

milling machine would be in no position to "heed" a sign on

the machine instructing her to keep ten feet away. Under

these circumstances, a manufacturer may have a heightened

responsibility to incorporate additional safety features to

guard against foreseeable harm. See Restatement (Third) of

Torts: Products Liability s 2 cmt. l (1997) ("[W]arnings are

not ... a substitute for the provision of a reasonably safe

design.... Just as warnings may be ignored, so may obvi-

ous or generally known risks be ignored, leaving a residuum

of risk great enough to require adopting a safer design.").1

__________

1 Illustration 14 to this comment of the Restatement is squarely

on point:

The district court did not err when it refused to give the

"adequate warning, therefore no liability" instruction pro-

posed by Ingersoll-Rand, because that instruction misstates

the law of the District of Columbia. Ingersoll-Rand may

have been entitled to a less sweeping instruction on its

"warnings" theory, but it never proposed one. The district

court was under no obligation to tinker with the flawed

proposed instruction until it was legally acceptable. Cf. Par-

ker v. City of Nashua, New Hampshire, 76 F.3d 9, 12 (1st

Cir. 1996) ("[W]hen the instruction offered by the lawyer is

manifestly overbroad, the district judge may reject without

assuming the burden of editing it down to save some small

portion that may be viable.").

B.

The jury heard evidence that Ingersoll-Rand's MT-6520

milling machine had killed an 18-year-old named James Ledg-

erwood in Canada approximately a year before the Rogers

incident took place. As the district court instructed the jury,

evidence of the Ledgerwood accident was introduced for a

single purpose: to show that Ingersoll-Rand was on notice of

the alleged design defects of the MT-6520 before Rogers's

__________

Jeremy's foot was severed when caught between the blade and

compaction chamber of a garbage truck on which he was

working. The injury occurred when he lost his balance while

jumping on the back step of the garbage truck as it was moving

from one stop to the next. The garbage truck, manufactured

by XYZ Motor Co., has a warning in large red letters on both

the left and right rear panels that reads "DANGER--DO NOT

INSERT ANY OBJECT WHILE COMPACTION CHAMBER

IS WORKING--KEEP HANDS AND FEET AWAY." The

fact that adequate warning was given does not preclude Jere-

my from seeking to establish a design defect under Subsection

(b). The possibility that an employee might lose his balance

and thus encounter the shear point was a risk that a warning

could not eliminate and that might require a safety guard.

Whether a design defect can be established is governed by

Subsection (b).

(emphasis added).

subsequent injury. Before us, Ingersoll-Rand complains that

the district court incorrectly forbade it from introducing

additional information about the Ledgerwood accident. In

particular, Ingersoll-Rand offered--and the district court

disallowed--testimony which occurred at a coroner's inquest

into Ledgerwood's death. According to Ingersoll-Rand, the

excluded testimony, which consisted of the testimony of wit-

nesses and the remarks of the investigating coroner, would

have shown that "those investigating Mr. Ledgerwood's death

concluded that [Ledgerwood's] own carelessness--not a de-

fect in the MT-6520--caused his death." This fact, Inger-

soll-Rand continues, would have "negate[d] [the Ledgerwood]

accident's relevance as to notice of a defect." Ingersoll-Rand

sought to introduce this testimony through its representative,

who attended the inquest.

The trial court stated that the inquest testimony would be

excluded because it was hearsay. Ingersoll-Rand argues that

the district court's styling of the basis for exclusion was

incorrect. Ingersoll-Rand offered the testimony to address

the extent to which it was on notice of the milling machine's

alleged design defects. This is correct. By definition, such

testimony was not literally hearsay because it was not offered

"to prove the truth of the matter asserted" (i.e., that the

decedent's own carelessness caused his death), but rather to

prove that the defendant was not on notice of the alleged

design defect. See Fed. R. Evid. 801. This is not, of course,

to say that it was necessarily error to exclude the evidence,

only that the stated basis for the ruling was incorrect. It

matters not. Even if we assume the exclusion was erroneous,

such error was not reversible.

To determine whether we must reverse as a result of an

evidentiary error, we apply 28 U.S.C. s 2111, which provides:

"On the hearing of any appeal ... in any case, the court shall

give judgment after an examination of the record without

regard to errors or defects which do not affect the substantial

rights of the parties." Thus, if an error is harmless, the

judgment will stand. We consider three factors when decid-

ing if a given error is harmless: "If (1) the case is not close,

(2) the issue not central, or (3) effective steps were taken to

mitigate the effects of the error, the error is harmless."

Carter v. District of Columbia, 795 F.2d 116, 132 (D.C. Cir.

1986) (citation omitted).

After considering these factors, we conclude that the dis-

trict court's exclusion of the proffered testimony was harm-

less error, if it was error at all. First, the case was not close,

at least as to whether the Ledgerwood accident placed Inger-

soll-Rand on notice that the MT-6520 may have been defec-

tively designed. Ingersoll-Rand's argument proceeds from

the premise that where the proximate cause of injuries was

the negligence of the injured party rather than the danger-

ousness of the instrumentality of injury, the manufacturer of

the allegedly dangerous instrumentality is not placed on

notice of the dangerousness of its product. Indeed, appellant

argues that "the negligence of a prior accident victim negates

that accident's relevance as to notice of a defect." In apply-

ing that theory to the facts of the present case, Ingersoll-

Rand argues that Ledgerwood died, not just because he was

negligent, but because he was practically suicidal: "[a]n in-

vestigation by Canadian law enforcement officials and an

official Coroner's Inquest found that the Ledgerwood acci-

dent occurred because, inter alia, the decedent disregarded

an audible, beeping back-up alarm and the operator's warn-

ings." But the actual coroner's testimony cited by Ingersoll-

Rand mentions neither back-up alarms nor operator's warn-

ings:

[Ledgerwood] was working as a sideman on a pavement

grinder, which was preparing the road surface for resur-

facing. At one point he was directed to move out of the

way behind the grinder, which was reversing. He appar-

ently did that. The evidence would indicate that he

placed his shovel in a bracket at the side of the road

grinder, and in moving away he did not move fast

enough, or through inattention or whatever, he did not

observe that the track had pivoted and that his right heel

was too close to the track. The result was that according

to the witness, his heel was pinned by the track and of

course, once he was pinned he would be unable to move

it. Because of the noise of the machine he would not be

able to hear him cry out. The track simply walked up

his leg and ran over his thorax and head. He died as a

result of massive internal and head injuries.

Ingersoll-Rand's argument is flawed both in its premise

and its application. It cannot logically be the case that an

accident, caused either proximately or ultimately by the dan-

gerousness of an instrumentality, is rendered irrelevant as

notice of dangerousness to the manufacturer of that instru-

mentality by the intervening or concurrent negligence of

another, whether the injured party or a third person. How

much warning the manufacturer received from a given inci-

dent may be influenced by the importance of the additional

negligence in a given case, but the relevance per se of the

incident as notice can hardly be extinguished. Further, even

if we were to accept Ingersoll-Rand's shaky premise, it has

not carried its burden of establishing reversible error in the

district court's exclusion of the evidence in the present case.

Granted, the operator of the MT-6520 that killed Ledgerwood

testified that a "back up beeper" went off before the Ledger-

wood accident took place, and that it was his practice to use

hand signals to communicate with his co-workers. But the

fact that the examining coroner did not refer to this testimo-

ny suggests to us that he did not rely on it in reaching his

conclusions.

Furthermore, Ingersoll-Rand's assertion that it "was not

held responsible in any way for the Ledgerwood accident" is

undercut by the recommendations made by the coroner's jury

that investigated Ledgerwood's death. That jury recom-

mended the implementation of certain safety measures (in-

cluding additional ground personnel to oversee the operation

of the MT-6520, and that machine operators should be

trained and licensed), which would hardly seem necessary if

Ledgerwood's negligence indeed was the sole cause of his

death. Perhaps most importantly, the jury specifically rec-

ommended a design modification to the MT-6520: the instal-

lation of an "emergency shut off switch on both sides of the

machine accessible to ground personnel." After considering

the excluded testimony in context, we conclude that it is not

remotely likely that the proffered testimony would have

affected a jury's view of the role of the Ledgerwood incident

as notice of dangerousness to Ingersoll-Rand.

The second question we must answer when weighing

whether error is harmless is whether the issue was central.

Clearly, the issue of Ingersoll-Rand's notice of a design

defect is distinct from the central issue of whether such a

defect existed at all. The district court recognized as much

when it instructed the jury that "the report of the Ledger-

wood accident is not proof of any defect in the machine

involved in the accident." Having said this, we note that this

issue did bear on the jury's consideration of the question of

punitive damages, so that this factor is perhaps more favor-

able to Ingersoll-Rand's position than the first, but hardly

dispositive in its favor.

Finally, we consider whether effective steps were taken to

mitigate the effects of the error. The district court did not

rule out the proffered testimony completely; it only ruled

that it could not be introduced through the Ingersoll-Rand

representative who was on the witness stand at the time.

The district court's ruling specifically allowed for the possibil-

ity of Ingersoll-Rand's introducing this testimony through

the witnesses who actually testified at the Ledgerwood in-

quest. Ingersoll-Rand chose not to pursue this alternative.

The ruling, then, was not an outright ban on the introduction

of the evidence, but was only a limitation as to how that

evidence might be introduced. This strongly suggests that

any error the district court may have made was harmless.

After taking all of the prescribed factors into account, we

arrive at the conclusion that the district court's decision to

exclude testimony from the Ledgerwood inquest, while per-

haps error, does not warrant reversal. See 28 U.S.C. s 2111.

III. Conclusion

Ingersoll-Rand has raised several additional arguments in

addition to those mentioned above. Although we do not deem

it necessary to discuss them here, we have given full consider-

ation to each additional argument, and conclude that all of

them lack merit.

For the foregoing reasons, we affirm the judgment of the

district court.