Petition for Writ of Certiorari — Firestone Tire & Rubber Co. v. Richard

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In the

Supreme Court of the United States

OCTOBER TERM, 1988

MICHAEL LYNN RICHARD

Plaintiff-Appellant

Cross Appellee

versus

THE FIRESTONE TIRE & RUBBER COMPANY

Defendant-Appellee

Cross Appellant

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WALKER, BORDELON, HAMLIN,

THERIOT & HARDY

William J. Hamlin

701 South Peters Street

Suite 200

New Orleans, LA 70130

(504) 524-5328

ATTORNEYS FOR

DEFENDANT-APPELLEE

CROSS APPELLANT,

THE FIRESTONE TIRE &

RUBBER COMPANY

AB Letter Service, Inc., 327 Chartres St.. New Orleans, La. (504) 581-5555 }

STATEMENT OF QUESTIONS PRESENTED

The Firestone Tire & Rubber Company submits the

following questions:

(1) Whether the Court of Appeals’ deci-

sion infringes on Firestone’s Seventh

Amendment right to a jury trial by not

reconciling the jury’s answers in its original

verdict and entering a judgment thereon in

favor of Firestone.

(2) Whether the Court of Appeals’ deci-

sion giving the trial court the discretion to

reject a decisive verdict and to consider ex-

traneous jury answers conflicts with deci-

sions of other Circuit Courts of Appeals.

LIST OF PARTIES TO THE PROCEEDING

The following are parties to this proceeding:

(1) Michael Lynn Richard, plaintiff-appellant,

cross-appellee.

(2) Hardesty Tire Service, worker compensation

intervenor who neither appealed nor ap-

peared in the appellate proceedings.

(3) The Firestone Tire & Rubber Company,

defendant-appellee, cross-appellant.

iii

TABLE OF CONTENTS

Page

STATEMENT OF QUESTIONS PRESENTED

ee. ne Lees a nccsbeocs cen i

LIST OF PARTIES TO THE PROCEEDING........ ii

TEETER ow ccc cle ccc ccc ccccccccs iii

TABLE OF AUTHORITIES ...................... iv

Tee ee cacctcdec se vi

NTE TT ne onnececen vii

CONSTITUTIONAL PROVISION INVOLVED..... Viii

ee BT l

i cccee 3

(A) The Court Of Appeals’ Decision Infringes On

Firestone’s Right To Trial By Jury And Con-

flicts With Prior Decisions Of The Supreme

Court By Not Reconciling The Jury’s Answers. 3

(B) The Court Of Appeals’ Decision Giving Trial

Courts The Discretion To Reject Decisive Ver-

dicts Based On Extraneous Jury Answers Con-

flicts With Other Circuit Court Decisions ..... 13

eee cle cencccece tees 4 RE ey 17

TABLE OF AUTHORITIES

Cases Page

Atlantic and Gulf Stevedores, Inc. v. Ellerman

Lines, Ltd.,

369 U.S. 355, 82 S.Ct. 780 (1962), 7 L.Ed.2d

OE sabé dn acd tuebedaeens penseOarecdee 4,12

Bates v. Jean,

pA Fo fF. Yo | oe ere 10

Bell v. Jet Wheel Blast,

ee a eee a hee aS eee 3

Bloxom v. Bloxom,

ee wadeeenee ane a 3

Fiacco v. City of Rensselaer,

783 F.2d 319 (2nd Cir. 1986) cert. denied 107 S.Ct.

Gallick v. Baltimore & Ohio R. Co.,

372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618

Rg nnn Pee pees SPE Fe os WE 4,5,10,12

Griffin v. Matherne,

Oe ee Bs 5 cnapctemine seams 4s os 7

Guidry v. Kem Manu. Co.,

604 F.2d 320 (5th Cir. 1979), cert. denied 445 U.S.

929, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980)......... 4

Halphen v. Johns-Mansville,

es oa an piles bee eae 3

McCollum v. Stahl,

579 F.2d 869 (4th Cir. 1978), cert. denied 440 U.S.

912, 99 S.Ct. 1225 (1979) ............. 13,14,15,16,17

Nance v. Gulf Oil Corp.,

ee See ee I, SE. og ow wc en ceccccunends 4

O’Brien v. Papa Gino’s of America, Inc.,

ope Fg GR Terre eee 5,6

TABLE OF AUTHORITIES (continued)

Cases Page

Ortiz v. Bank of America National Trust,

634 P28 GOS th Cir. 1967)... . 2... eee 6

Perricone v. Kansas City Southern Ry. Co.,

704 F.2d 1376 (6th Cir. 1968) ................... 7,8

Pierce v. Southern Pacific Transportation Co.,

RF GS OS 6

Waggoner v. Mosti,

oo ee yf TS RR Errno rrr rrr 6

Weber v. Fidelity & Casualty Ins. Co. of New York,

259 La.599, 250 So.2d 754 (La. 1971) .............. 3

White v. Grinfas,

809 F.2d 1157 (5th Cir. 1987)................ 6,15,16

Other Authorities:

United States Constitutional Amendment VII ...... viii

OPINIONS BELOW

The September 7, 1988 Opinion of the United States

Court of Appeals for the Fifth Circuit is reported at 853

F.2d 1258 (5th Cir. 1988).

vii

JURISDICTION

This Court’s jurisdiction is invoked under 28 USC

Sec. 1254(1) to review a decision of the Court of Appeals for

the Fifth Circuit dated September 7, 1988. The Judgment

of the Court of Appeals was entered on September 7, 1988.

A timely filed Petition for Rehearing was denied on Oc-

tober 12, 1988.

Original jurisdiction of the civil action was establish-

ed under 28 USC 1332(a)(1) by virtue of the diversity of the

citizenship of the parties and the requisite jurisdictional

amount in controversy.

eee id

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision involved in this writ ap-

plication is the Seventh Amendment, which provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact

tried by a jury, shall be otherwise reexamined in

any Court of the United States, than according to

the rules of the common law.

STATEMENT OF FACTS MATERIAL

TO CONSIDERATION OF THIS WRIT APPLICATION

Plaintiff, Mr. Michael Richard, brought this product

liability action to recover for injuries he received when a

multi-piece truck/tire rim assembly he had inflated

separated under pressure. He alleged that his injuries were

caused by a defect in the design, manufacture and produc-

tion of the rim and by virtue of the manufacturer’s failure

to warn of the dangers of the rim assembly. Defendant, The

Firestone Tire & Rubber Company, was the manufacturer

of the rim. Hardesty Tire Service, who paid worker com-

pensation benefits, intervened.

After trial on the merits the case was submitted to

the jury on special interrogatories on the questions of

whether the rim was defective, whether, if defective, the

defect caused the plaintiff’s injuries, whether the plaintiff

was guilty of contributory negligence, the allocation of

fault and the amount of the plaintiff’s damages. (Appendix

pg. 26.) After lengthy deliberations the jury returned a

defense verdict finding that although the rim was defective

because of an inadequate warning, the defect was not the

cause of the plaintiff’s injuries. However, the jury failed to

follow instructions on the verdict that it was to ‘‘go no fur-

ther” if it answered ‘“‘No’’ on the question of causation and

instead went on to answer extraneous questions relevant to

the plaintiff's fault or negligence, the allocation of fault

(90% to the plaintiff, 10% to Firestone) and the assessment

of damages. (Appendix pg. 26-29.)

The trial court stated that the answers were ‘‘im-

proper” because the jury answered the extraneous ques-

tions and denied Firestone’s motion for judgment based on

the defense verdict. Over Firestone’s objections the trial

court advised the jury that its verdict was “‘not in proper

form’’ and returned the verdict for reconsideration. (Ap-

pendix pg. 38-44.) After further deliberations, the jury

changed its answer on the causation interrogatory from

“No” to “Yes” and attributed 90% contributory

negligence to the plaintiff. Judgment for the plaintiff was

entered on that verdict. (Appendix pg. 30-33.) Firestone’s

post-trial motions were denied without reasons.

The plaintiff appealed the jury’s contributory

negligence finding, which the Court of Appeals affirmed,

and Firestone cross-appealed asserting, inter alia, that the

trial court should have entered judgment in its favor based

on the jury’s original answers to the special interrogatories

and erred in resubmitting the interrogatories for recon-

sideration. The Court of Appeals rejected Firestone’s ap-

peal and held that the trial court had the discretion both to

consider the jury’s extraneous answers and to resubmit

them for reconsideration.

ARGUMENT

The Court of Appeals’ decision violates Firestone’s

Seventh Amendment rights by ignoring a reasonable view

of the jury’s original answers that would render them con-

sistent and capable of supporting a judgment for

Firestone. The clear result of the Court of Appeals’ decision

is that Firestone was denied its constitutional right to trial

by jury on the relevant liability issues. The protection of

procedural quarantees under the Constitution is uniquely

the role of the Supreme Court and this Writ should be

granted to ensure those fundamental rights.

The Court Of Appeals’ Decision Infringes

On Firestone’s Right To Trial By Jury And Conflicts

With Prior Decisions Of The Supreme Court By Not

Reconciling The Jury’s Answers

Under established product liability law a manufac-

turer cannot be held liable for injuries allegedly caused by

its product unless a defect is found in the product and the

defect is proven to be the legal cause of the plaintiff's in-

juries. Weber v. Fidelity & Casualty Insurance Company of

New York, 259 La. 599, 250 So.2d 754, 755 (La. 1971); Bell

v. Jet Wheel Blast, 462 So.2d 166, 168 (La. 1985); Halphen

v. Johns-Mansville, 484 So.2d 110 (La. 1986); Bloxom uv.

Bloxom, 512 So.2d 839 (La. 1987). Therefore, based on the

jury’s finding that the defect in the rim was not the cause

of the plaintiff's injuries, a judgment should have been

entered in Firestone’s favor in accord with the defense ver-

dict. Instead, the jury was directed to reconsider its find-

ings and, after further deliberations, the jury changed its

answer on the issue of causation to “‘yes.”

Firestone’s appeal of the trial court’s action in direct-

ing the jury to reconsider its answers was rejected by a ma-

jority of the Court of Appeals’ panel. The Court never

reached the question of whether the answers could in fact

be reconciled. It simply erroneously ‘‘decline[d] to disturb

the district court’s exercise of discretion in determining

that the series of answers submitted by the jury was not

clear and required resubmission.” (Appendix pg. 6.)

Although it has long been established that special

verdicts may be resubmitted to the jury to clarify incon-

sistencies in its answers, Nance v. Gulf Oil Corp., 817 F.2d

1176 (5th Cir. 1987); Guidry v. Kem Manufacturing Com-

pany, 604 F.2d 320 (5th Cir. 1979), cert. denied 445 U.S.

929, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980), the power to

resubmit special interrogatories must be read in conjunc-

tion with the parties’ rights under the Seventh Amend-

ment. It is respectfully suggested that the Court of Ap-

peals erred in not accepting a rational view of the answers

on which they could be reconciled and in holding that the

trial court had the ‘‘discretion”’ to find the jury’s answers

irreconcilable. Contrary to the Court of Appeals’ decision

the Seventh Amendment requires Courts to reconcile jury

answers if there is any view of the jury’s answers that

makes them consistent:

Where there is a view of the case that makes the

jury’s answers to special interrogatories consis-

. tent, they must be resolved that way. For a search

for one possible view of the case which will make

the jury’s finding inconsistent results in a colli-

sion with the Seventh Amendment. (Emphasis

added.)

Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, Ltd,

369 U.S. 355, 364, 82 S.Ct. 780 at 786 (1962). In Gallick v.

Baltimore & Ohio Railroad Co., 372 U.S. 108 at 119, 83

S.Ct. 659, 666 (1963), the Court observed:

But it is the duty of the courts to attempt to har-

monize the answers, if it is possible under a fair

reading of them: “Where there is a view of the

~ case that makes the jury’s answers to special in-

terrogatories consistent, they must be resolved

that way.” Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct.

780, 786, 7 L.Ed.2d 798. We therefore must at-

pina sagen hy a s findings, by exegesis

if necessary, as in Arnold v. Panhandle & S.F_R.

Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889;

McVey v. Phillips Petroleum Co., 288 F.2d 53

(C.A. 5th Cir.); Morris v. Pennsylvania R. Co., 187

F.2d 837 (C.A.2d Cir) (collecting authorities),

before we are free to disregard the jury’s special

verdict...

The decision of the Fifth Circuit Court of Appeals to

leave reconciliation of the jury’s answers to the “‘discre-

tion” of the trial court, and its failure to accept a rational

view of the answers that renders them entirely consistent,

plainly conflicts with this Court’s prohibition against a

“search for one possible view of the case which will make

the jury’s finding inconsistent...’’. All other circuit courts

have consistently made the required attempt to reconcile

the answers. For example, in O’Brien v. Papa Gino's of

America, Inc., 780 F.2d 1067 at 1071 (1st Cir. 1986), the

First Circuit Court of Appeals held that:

Our inquiry with respect to potentially conflict-

al Aaadied candi, hotweren, ta net whether any

possible construction exists that would tend to

show jury confusion. The Court must attempt to

harmonize the jury’s answers if it is possible to do

so under a fair reading of them. Gallick v.

Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83

S.Ct. 659, 666, 9 L.Ed.2d 618 (1963). (Emphasis

supplied.)

And, in Pierce v. Southern Pacific Transportation Co., 823

F.2d 1366 at 1370 (9th Cir. 1987), the Ninth Circuit Court

of Appeals held that:

The court has a duty to reconcile the jury’s

special verdict responses on any reasonable

theory consistent with the evidence. Gallick v.

Baltimore & Ohio R.R. Co., 372 U.S. 108, 119-22,

83 S.Ct. 659, 666-67, 9 L.Ed.2d 618 (1983). (Em-

phasis added.)

Also see Waggoner v. Mosti, 792 F.2d 595 (6th Cir. 1986);

Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986),

cert. denied 107 S.Ct. 1384; Ortiz v..Bank of America Na-

tional Trust, 824 F.2d 692 (9th Cir. 1987).

Indeed, the Court of Appeals’ decision seems to be an

aberration even within the Fifth Circuit itself. Prior Fifth

Circuit panels have consistently mandated strict construc-

tion of jury interrogatory answers in order to validate ver-

dicts. For example, in White v. Grinfas, 809 F.2d 1157 at

1161 (5th Cir. 1987), the Court said:

When the jury’s answers appear to conflict, we

are obliged to reconcile the answers, if possible, in

order to validate the jury’s verdict. See, e.z.,

Federal Deposit Ins; Corp. v. Munn, 804 F.2d 860,

867 (5th Cir. 1986); Crossland v. Canteen Corp.,

711 F.2d 714, 725 (5th Cir. 1983). Indeed, this ef-

fort is required by the Seventh Amendment. (Em-

phasis added.)

And in Griffin v. Matherne, 471 F.2d 911 at 915 (5th Cir.

1973), the Court emphasized constitutional restraints on

reconciling jury answers:

Entry of judgment upon a jury’s special verdict

with written findings of fact is subject not only to

precedential guidelines but to a constitutional

restraint as well. The Seventh Amendment re-

quires that if there is a view of the case which

makes the jury’s answers consistent, the court

must adopt that view and enter judgment accor

dingly. (Emphasis added.)

The Griffin Court established the test to be used in recon-

ciling answers, at page 915:

This court has stated that the test to be applied

in reconciling apparent conflicts between the

jury’s answers is whether the answers may fairly

be said to represent a logical and probable deci-

sion on the relevant issues as submitted, even

though the form of the issue or alternative selec-

tive answers prescribed by the judge may have

been the likely cause of the difficulty and largely

produced the apparent conflict. (Emphasis

added.)

And, in Perricone v. Kansas City Southern Ry. Co., 704

F.2d 1376 (5th Cir. 1983), where it was confronted with the

issue of whether a jury was properly called on to reconsider

its answers, the Court expressed strong concern that resub-

mission of a verdict can result in something other than

what was intended by the jury. The Court’s concern was

over the considerable risk that the jury may conclude it is

being told that its original findings were unsound. This

coercion, the Court said, can be communicated in ‘‘a thou-

sand ways from a cocked eyebrow to a sideways glance”’,

all of which ‘‘will not be of record’’ and thus “are not

reviewable.”’ 704 F.2d at 1378.

The dissenting Opinion in this case likewise recogniz-

ed the ‘‘dangerous ramifications in [the majority's] holding

that resubmission of the verdict form to enable the jury to

reconsider its answers was within the sound discretion of

the trial judge.’’ (Appendix pg. 11.) The dissent pointed out

that when a completed verdict from is resubmitted to the

jury the risk of a coerced verdict is substantial because the

fact of the resubmission itself may communicate to the

jury that the trial judge regarded its findings unjust. This,

the dissenting Opinion observed, may cause the jury ‘‘not

to reconcile the inconsistency but to revise the verdict in

accord with its collective perception of the judge’s attitude

toward the case.’’ The resulting influence, the dissent con-

cluded, may cause the jury ‘“‘to disregard its institutional

role of finding the facts’’ and thus ‘‘the command of the

seventh amendment is violated.’’ (Appendix pg. 12-13.)

Conversely, the Court of Appeals’ majority decision

never reached the question of whether the jury’s answers

could be reconciled. It rejected Firestone’s appeal on the

grounds that it was ‘‘persuaded that the district court was

entitled to find the answers inconsistent” and “‘was entitl-

ed to decline to enter judgment on the jury's findings that

Firestone shared fault for an injury it did not cause”. (Ap-

pendix pg. 5.) The Court of Appeals’ majority decision

made no finding that the jury’s answers were in fact ir-

reconcilable, and made no analysis to determine whether

there was a logical view that made them consistent. It

simply affirmed on the apparent presumption that the

district court had found the answers irreconcilable. Jn fact,

the district court never found the answers irreconcilable.

No such finding was made during the jury's deliberations

and no such finding was made in ruling on Firestone’s post-

rial motions, which were denied without reasons. The

district court said only that the answers were “improper”

because extraneous questions were answered and it inform-

ed the jury that its verdict was not “in proper form.” (Ap-

pendix pg. 43.) On that record the Court of Appeals’ ap-

parently presumed that the district court found the

answers inconsistent and that, in the exercise of its discre-

tion, was entitled to resubmit the interrogatories for recon-

sideration. Accordingly, no court has made the requisite

-search to see if there is a view that makes the answers

Although the Court of Appeals’ majority decision

did not make the required attempt to reconcile the jury's

Accordingly, there is an easily-found view

of this case that the jury’s allocation of fault to

Firestone is entirely consistent with its finding

that Firestone did not legally cause Richard's in-

jury. The jury could have seen the fault allocation

ee 0 ee oar 0 See in percentage

- of the extent to which each party's

per was substandard, or “at fault.”

Firestone was at fault because it had sent a pro-

duct into the stream of commerce without giving

warning of the dangers inherent in its foreseeable

use and without instructing use of the product in

a way calculated to minimize those dangers.

Richard, however, was already aware of the

dangers of which Firestone was under a duty to

warn and of the procedures for avoiding them.

Since he failed to follow those procedures in

assembling the rim, his fault was found to be pro-

portionately much greater than Firestone’s. Fur-

thermore, by viewing Richard’s fault as a

superseding cause of his own injury, the jury

could consistently find no causal link between

Firestone’s fault - its failure to warn - and

Richard’s injury. (Appendix pg. 19.)

The finding that Firestone was guilty of fault could

not have created confusion in the jury’s clear expression on

the issue of causation any more then did the finding of a

defect in the product. Both the interrogatory that concern-

ed defect and the interrogatory that concerned fault were

unrelated to the question of whether the defect or the fault

caused the plaintiff's injuries. It has long been established

that “the consistency of the jury verdict must be con-

sidered in light of the judge’s instructions to the jury.”’

Bates v. Jean, 745 F.2d 1146, 1151 (7th Cir. 1984), citing

Gallick v. Baltimore & Ohio Railroad, supra, 372 U.S.

118-22. The jury was instructed that the plaintiff must

establish that the defendant engaged in substandard con-

duct and was thus in legal terms at “‘fault’’ and, in the next

sentence, was charged that the manufacturer is liable if the

plaintiff's injuries were caused by the defect:

In this case the plaintiff, Michael Richard claims

damages for personal injuries alleged to have

been caused by a defective condition in the

multipiece rim manufactured by Firestone Tire

and Rubber Company. Specifically, the plaintiff

alleges that while he was working on a tire and

rim, which were to be remounted on a large diesel

truck, the multipiece rim upon which the tire was

mounted disengaged and struck the plaintiff. You

are instructed as a matter of law that the plaintiff

must establish by a preponderance of the

evidence that the defendant has engaged in

substandard conduct and thus in legal terms at

fault. In this case involving alleged damage from

a product, the basic standard applicable to the

manufacturer is: the manufacturer of a product

which involves a risk of injury to the user is liable

to any person, whether the purchaser or a third

person, who, without fault on his part, sustains

an injury caused by a defect in the design, com-

position or manufacture of the product, if the in-

jury might reasonably have been anticipated.

(Appendix pg. 34.)

The definition of causation was given later in the Court’s

instructions:

As to the requirements that the plaintiff’s injury

be caused by the defendant’s product, I don’t

mean that the law recognizes only one cause of

any injury consisting of only one factor or thing

or the conduct of only one person. On the con-

trary, many factors or things may operate at the

same time, either independently or together, to

cause injury or damage. If you find a defect, you

should resolve the question of causation by

deciding whether the plaintiff would probably not

have suffered the claimed injuries in the absence

of the defect in the defendant’s preduct. (Appen-

dix pg. 36-37.)

Thus, a finding of fault on the part of Firestone was in no

way an expression that the fault caused the plaintiff's in-

juries any more that was the finding of defect, which the

jury categorically rejected as a cause of his injuries. The

finding of substandard conduct was logically nothing more

than another expression of the jury’s finding of a defect.

The decision of the Court of Appeals, as the dissent-

ing Opinion suggests, allows the court to draw an “‘in-

ference of proximate cause from a finding of comparative

fault.” (Appendix pg. 20.) Such an inference would directly

conflict with the trial court’s instructions. Moreover,

reliance upon inferences would allow courts to search for an

inconsistency rather than require them to make the

obligatory search for a view that renders them consistent.

The point that bears emphasizing is that regardless

of whether there exists some view upon which it might be

argued that the jury's original answers were unclear, there

is nonetheless a logical view that renders them consistent,

and that is the view that must be accepted. If the answers

may fairly be said to represent a logical and probable deci-

sion on the relevant issues, they must be resolved that way

and judgment must be entered accordingly. Atlantic and

Gulf Stevedores v. Ellerman, supra, 369 U.S. at 364;

Gallick v. Baltimore & Ohio R.R., supra, 372 U.S. at 119.

There is no authority for leaving this determination to in-

ferences drawn from the trial court’s actions.

Furthermore, as the dissenting Opinion also points

out, the established rule of law is “‘turned on its head”’ if

the trial court, in its discretion, can resubmit a verdict

whenever there is some view that renders the answers in-

consistent, or even worse, if there is something subjective

that makes the trial judge believe the jury was confused.

(Appendix pg. 20.) The decision would permit a trial court

to find an inconsistency not by just analyzing the answers

themselves but by observing the jury during trial, explain-

ing the questions to the jury and by evaluating the jury's

ability to resolve uncertainties. This subjective approach

to the analysis of jury answers has never been allowed and

plainly invites a search for an inconsistency, which is clear-

ly prohibited by the Seventh Amendment. Atlantic & Gulf

Stevedores v. Ellerman, supra, 369 U.S. at 364.

The Court of Appeals’ decision threatens to cloud ex-

isting law and poses a real infringement on Firestone’s

right to trial by jury on relevant liability issues. For these

reasons Firestone requests the Court to grant a Writ of

Certiorari to review the decision of the Court of Appeals.

The Court Of Appeals’ Decision Giving Trial

Courts The Discretion To Reject Decisive

Verdicts Based On Extraneous Jury Answers

Conflicts With Other Circuit Court Decisions

The Court of Appeals’ decision affirming the trial

court's rejection of a decisive defense verdict based upon

extraneous answers conflicts with a prior decision of the

United States Court of Appeals for the Fourth Circuit.

In McCollum v. Stahl, 579 F.2d 869 (4th Cir. 1978),

cert. denied 440 U.S. 912, 99 S.Ct. 1225 (1979), a case in-

volving alleged wrongful discharge from employment, the

trial court resubmitted a verdict for further consideration

even though the jury's initial answers to interrogatories

found no wrongful discharge conduct by the defendant.

The jury founa for the defendant on the critical liability

issue but went on to find that the plaintiff had been

sideration the jury changed its answer on the wrongful

discharge question from “‘no”’ to “‘yes” and a judgment for

the plaintiff was entered.

On appeal, the Fourth Circuit ruled that resubmis-

sion of the interrogatories to the jury was error. Reasoning

that the unequivocal finding of no wrongful conduct was a

decisive verdict for the defendant, the Court of Appeals

held that the answers to the subsequent interrogatories

were “‘surplusage, to be disregarded as no longer having

place in the litigation”. 579 F.2d at 871. The Court said

eee

that the inescapable implication of the resubmission to the

jury was that the damage award demanded justification

and was tantamount, in its effect, to a direction to the jury

that it should find liability in order to warrant the award

of damages. The Court held that the resubmission was pro-

cedurally impermissible because at the time of resubmis-

sion there was already before the Court an unequivocal

finding of no wrongful conduct by the defendant, and thus

a decisive verdict for the defendant.

An identical situation occurred in this case in the

jury’s original answers, where a decisive verdict was

rendered for Firestone upon the finding that the defect did

not cause the plaintiff's injuries. Furthermore, there would

be no source of arguable confusion over the jury’s first

answers if the jury had followed the instructions on the ver-

dict form that it ‘“‘go no further’’ upon finding for Firestone

on either the defect or causation interrogatories, and had

not answered the extraneous questions, which by definition

presupposed an affirmative finding on the issue of causa-

tion. The Court of Appeals concluded that the trial court

enjoys “broad discretion...to refuse to consider inter-

rogatories answered in violation of the court’s instruc-

tions’’. (Emphasis added.) (Appendix pg. 6.) This analysis

conflicts with the Fourth Circuit in McCollum because in

order to find a conflict and reject the decisive defense ver-

dict the trial court would not have refused to consider the

improperly answered interrogatories. Rather, it would have

had to consider the extraneous answers in order to reject

the verdict. It is respectfully submitted that the Court of

Appeals’ interpretation, since it permits consideration of

the extraneous answers in order to reject a decisive defense

verdict, conflicts with the Fourth Circuit’s decision in

McCollum v. Stahl, supra.

The Court of Appeals’ decision is also inexplicably in

direct conflict with another Fifth Circuit panel decision, the

only other appellate decision to confront this issue. In

White v. Grinfas, supra, the jury failed to follow the court’s

instructions on the verdict form and answered certain in-

terrogatories that should not have been answered, thus

making the verdict arguably inconsistent. Contrary to

what happened in this case, however, the trial court in

White entered judgment for the defendant and the plaintiff

appealed, contending the answers were inconsistent. On ap-

peal the defense judgment was affirmed on the same basis

followed by the Fourth Circuit in McCollum:

The problem was caused by the jury’s

failure to follow the court’s instructions. The jury

was directed not to answer any further questions

if it found in question 3 that the Whites did not

know of any structural defects prior to the execu-

tion of the Agreement. Because all the questions

subsequent to question 3 were predicated on an

affirmative response to that question, the subse-

quent answers had to conflict with the answer to

question 3, regardless of whether they were also

in conflict with each other.

Thus, the real dispute is between the

answer to question 3 and all other answers, rather

than between the answers to questions 5 and 14.

To effectuate best the intent of the jury, we hold

that if the district court has correctly found that

the jury’s answer to a question that was supposed

to terminate further inquiry is clear and disposes

of the legal issues, on review we must ignore the

jury’s necessarily conflicting answers to any

other questions. The subsequent questions are by

definition irrelevant in these circumstances, and

cannot be used to impeach the jury’s clear verdict.

(Emphasis added.) 579 F.2d 869.

nestle

The White court thus categorically rejected consideration

of the questions answered in violation of the Court’s

instructions.

The jury’s answer in this case on the causation ques-

tion was clear and unambiguous, and was a decisive verdict

on the liability issues that terminated further inquiry.

Thus, the jury’s further answers must be disregarded as

surplusage in accord with McCollum v. Stahl, supra, 579

F.2d at 871. There is no authority for leaving to the

District Court’s discretion the question of whether to ac-

cept or reject a decisive defense verdict based on ex-

traneous answers made in disregard of the Court’s

The dissenting Opinion correctly points out that the

Court’s decision wrongly assumes that the Seventh

Amendment obligation to reconcile jury answers is inap-

plicable when the District Court fails to reconcile them, as

occurred here. (Appendix pg. 21.) The dissent also correctly

points out the majority’s error in finding that the trial

court has any “discretion” at all to consider extraneous

answers. Once a jury has disposed of the legal issues, and

there is a decisive verdict, further inquiry is terminated.

Any conflicting answers to any other questions are by

definition irrelevant and cannot be used to impeach the

jury’s verdict.

As a matter of fundamental fairness, as observed in

the dissenting Opinion, the “‘go no further”’ instruction is

designed to protect a defendant’s right to a favorable rul-

ing on liability issues. It is designed to prevent juries from

making extraneous answers to questions which, by their

very nature, presuppose the existence of the requisite

elements of liability. The purpose of structuring jury inter-

rogatories in this fashion is clearly defeated by the majori-

ty Opinion because trial courts, in their discretion, would

be free to disregard decisive verdicts because of those ex-

traneous answers and return them for reconsideration

under potentially coercive and prejudicial circumstances.

We respectfully suggest that the discretionary rule

espoused by the Court of Appeals clearly conflicts with the

Fourth Circuit’s decision in McCollum v. Stahl, supra, and

threatens to cloud established law. Litigants need an

unambiguous rule that precludes the rejection of decisive

verdicts because of potentially conflicting extraneous

answers to special interrogatories.

CONCLUSION

The Court of Appeals’ decision confronts fundament-

al Seventh Amendment rights and infringes upon

Firestone’s right to trial by jury on the relevant liability

issues. It also conflicts with prior decisions of this Court

and other Circuit Courts on the duties and responsibilities

of the trial court in reconciling jury answers and rendering

appropriate judgments on jury verdicts. The decision

threatens to cloud established law and meets the important

requisites for consideration by this Court. Accordingly,

Firestone respectfully urges the Court to grant a Writ of

Certiorari to review the decision of the Court of Appeals.

WALKER, BORDELON, HAMLIN,

THERIOT & HARDY

William J. Hamlin

701 South Peters Street

New Orleans, LA 70130

(504) 524-5328

ATTORNEYS FOR

DEFENDANT-APPELLEE

CROSS APPELLANT,

THE FIRESTONE TIRE &

RUBBER COMPANY

CERTIFICATE OF SERVICE

The undersigned counsel for The Firestone Tire &

Rubber Company hereby certifies that pursuant to Rule 28,

three copies of this Petition for Writ of Certiorari have been

served on counsel for Michael Richard by depositing same

in the United States mail, postage prepaid and properly ad-

dressed, this day of November, 1988, as follows:

Gregory P. Massey

P. O. Box 910

Lake Charles, Louisiana 70602

Hunter W. Lundy

P. O. Box 3009

Lake Charles, Louisiana 70602

William J. Hamlin

A-1

APPENDIX A

Michael Lynn RICHARD,

Plaintiff-Appellant,

Cross-Appellee,

Vv.

The FIRESTONE TIRE & RUBBER

CO., Defendant-Appellee,

Cross-Appellee,

Vv.

HARDESTY TIRE REPAIR,

Intervenor-Appellee.

No. 87-4815.

United States Court of Appeals,

Fifth Circuit.

Sept. 7, 1988.

Tire installer who was injured when tire exploded as

he prepared to mount it on a truck axle brought suit

against manufacturer of tire rim. The United States

District Court for the Western District of Louisiana,

Donald E. Walter, J., entered judgment on a jury verdict

finding that rim was defective because manufacturer failed

to warn of its dangers, but that installer was 90% at fault,

and reducing award accordingly. Plaintiff appealed. The

Court of Appeals, W. Eugene Davis, Circuit Judge, held

that: (1) initial jury verdict was inconsistent, justifying

district court’s decision to retire jury for further delibera-

tions; (2) evidence supported jury’s finding that manufac-

turer failed to warn adequately of dangers of use of its pro-

duct and that such failure was causally related to plaintiff's

injury; (3) evidence supported jury’s finding that plaintiff

was 90% at fault for accident; and (4) under Louisiana pro-

ducts liability law, comparative negligence can apply to a

failure to warn case.

Affirmed.

A-2

Jerry E. Smith, Circuit Judge, concurred in part and

dissented in part with opinion.

1. Federal Civil Procedure © 2217

Verdict in product liability case was inconsistent,

where jury answered interrogatory finding no causation

between defect and injury, but in another interrogatory,

assigned 10% of the fault for the injury to manufacturer,

and thus district court properly retired jury for further

deliberations.

2. Products Liability © 83.5

Evidence supported jury finding in products liability case

arising from explosive separation of tire rim from tire that

manufacturer failed to warn adequately about the danger

that even a slight misalignment between rim and side ring

might cause explosive rim separation; plaintiff's expert

testified that slight out-of-roundness of rim could combine

with slightly warped side ring to prevent ring from seating

properly, even without obvious misassembly, and that

failure to seat could cause tire bead to hang up on side

ring’s edge during inflation, creating a potential for ex-

plosive rim separation.

3. Products Liability ¢= 83.5

Evidence in products liability action arising from ex-

plosive separation of tire rim from tire supported jury's

finding that plaintiff was 90% at fault for accident; plain-

tiff in his deposition testimony said that his boss had told

him to mount tires before inflating them, or to mount after

inflating them with just a few pounds of air, had plaintiff

followed either precedure, he would not have been standing

directly in side ring’s trajectory while mounting fully in-

flated, and therefore more dangerous, tire.

4. Products Liability @ 40 -

Under Louisiana products liability law, comparative

A-3

negligence applied to failure to warn case arising from ex-

plosive separation of tire from tire rim; application of com-

parative negligence would realistically promote safer pro-

duct use, considering that plaintiff hurried through

assembly and inflation of tire, ignoring his boss’ instruc-

tions to mount tire before fully inflating it; moreover, ap-

plication of principle would not drastically reduce manufac-

turer's incentive to make safer tire rims because manufac-

turer could not reasonably rely on careless use by future

plaintiffs to reduce its economic liability.

Appeal from the United States District Court For

the Western District of Louisiana.

Before GEE, DAVIS and SMITH, Circuit Judges:

W. EUGENE DAVIS, Circuit Judge:

Both parties to this product liability action are disap-

pointed with the verdict rendered in this case and appeal.

The suit followed Richard's injury that occurred when a

Firestone tire rim separated while he was mounting the tire

on a truck. Firestone complains of the jury finding that it

failed to warn of danger to workmen assembling or mount-

ing tires equipped with its multi-piece rims. Richard com-

plains of the reduction in his award based on the jury’s fin-

ding that his fault was ninety percent responsible for the

accident. We find no error and affirm.

On the day of the accident, Richard, an employee of

Hardesty Tire Service, responded to a call from Louisiana

Metals Company to fix four flat tires. He fixed three tires

without incident but suffered serious injury while working

on the fourth, a tire equipped with a Firestone two-piece

A-4

rim. Richard had repaired the flat, reassembled the tire rim,

and inflated the tire with seventy-five pounds of air. The

tire exploded as Richard prepared to mount it on a truck

axle; the rim’s side ring separated from the rim and struck

him in the forehead.

Richard sued Firestone and Louisiana Metals Co.,

Inc., in Louisiana state court. He alleged that defects in the

design, manufacture, and production of Firestone’s rim,

along with Firestone’s failure to warn users about the

danger of its two-piece rim, caused his injuries. At

Firestone’s motion, the action was removed to federal

district where the case was tried to a jury.

After the jury returned what the district court con-

sidered to be an inconsistent verdict, the court directed the

jury to retire for further deliberation. The jury found the

rim defective because Firestone failed to warn of its

dangers and assessed Richard’s damages at $629,000.

However, the jury also found Richard ninety percent at

fault, and his award was reduced accordingly. This appeal

followed the district court’s denial of all post trial motions.

II.

[1] Firestone’s first ground for appeal focuses on the

district court’s decision to retire the jury for further

deliberations after the jury initially returned its verdict. In-

terrogatory l(a) asked whether Firestone’s rim was defec-

tive, and 1(b) asked if the defect caused Richard’s injury.

The court’s special verdict form instructed the jury to “go

no further” if it answered “‘no”’ to 1(a) or 1(b). Initially, the

jury answered “‘yes’”’ to l(a) and “‘no”’ to 1(b); however, it

A-5

also answered the questions that followed 1(b).! The court

found the verdict inconsistent, denied Firestone’s motion

for judgment on the jury’s initial answers to the special in-

terrogatories, and directed the jury to consider further its

answers. During these deliberations the jury changed its

1(b) answer to “‘yes”’.

Courts are obligated to reconcile a jury’s answers

when possible. White v. Grinfas, 809 F.2d 1157, 1161 (5th

Cir. 1987). Predicated on this fundamental rule, Firestone

labors to explain how the jury’s first answer to inter-

rogatory 1(b) finding no causation between the defect and

Richard’s injury does not contradict the jury’s response to

Interrogatory 4, in which it assigned ten percent of the

fault for Richard’s injury to Firestone. We are persuaded

that the district court was entitled to find these answers in-

consistent. It was entitled to decline to enter judgment on

the jury’s findings that Firestone shares fault for an injury

it did not cause.

Relying on White again, Firestone further argues

that the district court should have ignored the answers to

the interrogatories that followed interrogatory 1(b) and

entered judgment for Firestone when the jury found no

causation linking the defect in defendant’s product to

plaintiff's injury. In White, as in this case, the jury

answered Special Issue 3 ‘““‘We do not” when asked if it

found that the defendants in that suit for fraud and breach

of implied warranty knew the apartments they were selling

had structural defects. It then ignored the court’s instruc-

tions to refrain from answering the remaining questions

once it answered no to this question. In answer to the re-

maining special issues the jury determined, inconsistent

1 The jury went on to find the Firestone rim defective based on its

failure to warn; apportion Firestone’s fault at ten percent and Richard’s

at ninety percent; and assess Richard’s damages at $629,000.

with its earlier answer, that the defendants had knowingly

withheld structural information to induce the plaintiffs in-

to entering a contract. The district court entered judgment

for defendants predicated on the jury's answer to Special

Issue 3. In affirming, we concluded that “if the district

court has correctly found that the jury’s answer to a ques-

tion that was supposed to terminate further inquiry is clear

and disposes of the legal issues, on review we must ignore

the jury's necessarily conflicting answers to any other

questions.”” White, 809 F.2d at 1161. Thus, in White we

recognized the broad discretion the district court enjoys to

refuse to consider interrogatories answered in violation of

the court’s instructions.

We have consistently given the district court wide

discretion in deciding whether the jury’s answers to the

court's questions are clear. See Nance v. Gulf Oil Corp., 817

F.2d 1176, 1178 (5th Cir. 1987); Landry v. Offshore

Logistics, Inc., 544 F.2d 757, 761 (5th Cir. 1977). As we

noted in Nance, “‘[mjere resubmission does not necessarily

coerce a verdict."’ Nance, 817 F.2d at 1178.

Moreover, Fed.R.Civ.P. 49(b), which permits the trial

court to resubmit inconsistent answers to interrogatories

that accompany a general verdict, and our reading of

Fed.R.Civ.P. 49(a) to allow resubmission of inconsistent

special verdicts, underscore the scope of this decretion. See

Nance, 817 F.2d at 1178; Perricone v. Kansas City Ry. Co.,

704 F.2d 1376, 1379 (5th Cir. 1983); Guidry v. Kem Mfg.

Co., 604 F.2d 320, 321 (5th Cir. 1979), cert. denied, 445 U.S.

929, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980). The district

judge, who has observed the jury during the trial, prepared

the questions and explained them to the jury, is in the best

position to determine whether the answers reflect confu-

sion or uncertainty. The jury also is in an excellant position

A-7

to resolve this uncertainty with proper guidance. See

Geosearch, Inc. v. Howell Petroleum Corp., 819 F.2d 521,

527 (Sth Cir. 1987); McVey v. Phillips Petroleum Co., 288

F.2d 53, 59 (5th Cir. 1961). Removing any uncertainty in

the jury’s findings obviously solidifies any judgment

entered on the verdict and reduces the prospect of the

dreaded retrial. We decline to disturb the district court's

exercise of discretion in determining that the series of

answers submitted by this jury was not clear and required

resubmission.

Ill.

[2] Firestone also argues that the record evidence

does not support the jury’s findings that it failed to warn

adequately of the dangers of the use of its product and that

such failure was causally related to Richard’s injury. We

conclude that substantial evidence supports this finding.

See Eyre v. McDonough Power Equip., Inc., 755 F.2d 416,

419-20 (5th Cir. 1985).

Under Louisiana law, a manufacturer is strictiy

liable if the product left the manufacturer's control in an

unreasonably dangerous condition and the condition is the

legal cause of plaintiff's injuries. Bell v. Jet Wheel Blast,

462 So.2d 166, 168 (La. 1985). Unreasonably dangerous

conditions include the manufacturer’s failure to provide

adequate warning of dangers inherent in the product's nor-

mal use, if not within the knowledge of or obvious to the

user. Bloxom v. Bloxom, 512 So.2d 839, 843 (La. 1987);

Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 115

(La. 1986). A manufacturer may be liable if it fails to tell

users how to avoid the product’s inherent dangers. Guidry

v. Kem Mfg. Co., 693 F.2d 426, 430 (5th Cir. 1982).

Firestone insists that it breached no duty to warn,

given that Richard knew to check rims for obvious

A-8

misassembly before inflation because improperly assembl-

ed tires could explode. It points to Richard’s testimony

that he had three months of on-the-job training in truck tire

repair, knew the importance of avoiding damaged pieces,

and knew to clean rim pieces before assembly to insure pro- ‘

per fit. The testimony of Richard Hardesty, Richard’s boss,

corroborated this information. /

However, the jury was entitled to believe the

testimony of Richard's expert, Dr. Hugh A. Walls. He

testified that slight out-of-roundness of the rim could com-

bine with a slightly warped side ring to prevent the ring

from seating properly, even without obvious misassembly.

He further testified that this failure to seat could cause the

tire bead to hang up on the side ring’s edge during infla-

tion, creating a potential for explosive rim separation. This

paralleled the testimony of Richard and another eyewitness

that the side ring appeared to be seated properly in the rim

before the tire exploded.

Further, Richard and his employer testified that

they received no warnings or instructions on two-piece rim

assembly from Firestone. The record does not indicate that

Richard knew to check for slight warping in the ring or out-

of-roundnesgs of the rim. Thus, the jury was entitled to con-

clude that Firestone failed to provide a particularized warn-

ing about the danger of even a slight misalignment be-

tween rim and side ring that was not noticeable at all or

barely noticeable. In so doing, the jury was free to reject

the testimony of Firestone’s experts that, based on com-

puter simulations and engineering principles, only a gross

and obvious misalignment could precede such an accident.

[3] For his part, Richard also argues that insufficient

evidence supports the jury’s finding that he was ninety per-

cent at fault for this accident. We disagree. During cross-

A-9

examination, Firestone’s attorney led Richard through

prior sworn deposition testimony indicating that Richard,

anxious to finish work at the end of a hot day, did not

follow all of his boss’s instructions.

Richard testified at trial that he had inflated the tire

fully and was preparing to mount it on the axle when the

ring separated. However, in his deposition testimony

Richard said his boss had told him to mount tires before in-

flating them, or to mount them after inflating them with

just a few pounds of air. Had he followed either procedure,

Richard would not have been standing directly in the ring’s

trajectory while mounting the fully inflated—and therefore

more dangerous—tire. In his deposition, Richard also

testified that at times he had followed these procedures

before the accident. Thus, the jury was entitled to find that

Richard’s conduct was the predominant cause of his

accident.

IV.

[4] These findings bring us to the novel issue of

whether comparative negligence can apply to a failure to

warn case under Louisiana products liability law. We con-

clude that it does apply.

We start with the Louisiana Supreme Court’s

guidelines for application of comparative negligence to pro-

ducts liability actions in Bell v. Jet Wheel Blast, 462 So.2d

166, 171 (La.1985). Under Bell, comparative negligence

should apply to liability based on failure to warn if it would

(1) realistically promote safer product use, and (2) not

drastically reduce the manufacturer’s incentive to make

safer products. Jd. at 171-72. A careful reading of the case-

law suggests that application of comparative negligence

here satisfies both prongs.

In Bell, the Louisiana Supreme Court relied on prong

A-10

one in refusing to apply comparative negligence to an

employee who caught his hand in the chain-and-sprocket

drive of a conveyor belt that lacked an adequate guard. Jd.

at 172. The court reasoned that ‘‘the application of com-

parative fault would not serve to provide any greater incen-

tive to an employee to guard against momentary neglect or

inattention so as to prevent his hand from being mangled

by machinery.” Jd.

We relied on the Beil court’s reasoning in concluding

that comparative negligence applied to the plaintiff in

Winston v. International Harvester Corp., 791 F.2d 430,

433-34 (5th Cir.1986), who was injured when he fell from his

tractor after it left the road. We concluded that application

of comparative negligence to Winston’s facts would pro-

mote safer product use. Unlike the plaintiff in Bell,

Winston’s negligence in steering his tractor off the road

‘‘amounted to more than ‘simple inadvertance’ or ‘momen-

tary neglect.”’’ Winston, 791 F.2d at 434.

Under this reasoning, comparative negligence would

promote safer product use in Richard’s situation. The jury

apparently believed that Richard hurried through

assembly and inflation of the tire, ignoring his boss's in-

structions to mount the tire before fully inflating it. Thus,

this is not a situation in which Richard simply looked away

at a crucial moment or fell victim to some other form of

‘“‘momentary neglect.”

The Bell test’s second prong also supports applica-

tion of comparative negligence in this case. As we stated in

Winston, this principle will not drastically reduce

Firestone’s incentive to make safer tire rims because

Firestone “cannot reasonably rely on careless use by

future plaintiffs to reduce its economic liability.”’ Winston,

791 F.2d at 434 (quoting Nicholas v. Homelite Corp., 780

A-11

F.2d 1150, 1154 (5th Cir. 1986). The rule’s promotion of

safer consumer use reinforces this conclusion; it reduces

further the likelihood that Firestone can limit its liability

in future cases by pointing to careless consumer conduct.

Thus, we are satisfied that application of comparative

negligence in this case is proper because it satisfies both

prongs of the Beil test.”

AFFIRMED.

JERRY E. SMITH, Circuit Judge, concurring in

part and dissenting in part:

I fully concur in Parts III and IV of the majority’s

opinion holding that the evidence supports the verdict and

that comparative negligence is applicable to the facts of

this case under Louisiana law. However, I respectfully dis-

sent from Part II of the opinion. There are dangerous

ramifications in its holding that resubmission of the ver-

dict form to enable the jury to reconsider its answers was

within the sound discretion of the trial judge. Believing

that the answers were reconcilable as a defense verdict, and

that the seventh amendment mandates their reconciliation

as such, I would reverse and render judgment for the defen-

dant without reaching whether comparative negligence is

applicable here.

The seventh amendment guarantees the right to a

jury fact-finding in civil trials. When the right has been in-

voked, the trial judge’s formal role in the fact-finding pro-

2 We also have considered Richard’s contention that the trial court’s in-

struction on normal use was erroneous.Because Richard did not object

to the charge he did not preserve this point for appeal.

A-12

cedure is reduced to the largely ministerial task of deliver-

ing the charge, which assists and guides the jury. At this

stage in the trial, however, the potential for the judge to ex-

ert subliminal, informal influence on the jury is great. The

ceremony of trial has socialized the jury to defer to the

Solomon-wise majesty of the trial judge as an impartial

dispenser of justice. As we recently noted,

[t]he trial judge is a potent figure indeed. His in-

structions are lethal. He can communicate his at-

titude in a thousand ways from a cocked eyebrow

to a sideways glance. Those will not be of record.

They are not reviewable. Trial judges are

disciplined ultimately only by their good faith

and integrity and by an occasional reminder from

their appellate brethren to be constantly vigilant

of their power.

Perricone v. Kansas City S. Ry., 704 F.2d 1376, 1378-79

(5th Cir. 1983).

When a trial judge resubmits the completed verdict

form to the jury because its answers to the special inter-

rogatories appear inconsistent, the risk of a coerced verdict

is substantial, even though the record may be unreflective

of anything suggestive in the manner of resubmission. The

fact of the resubmission itself may very well communicate

to the jury that the trial judge regarded its find-

ings unjust. The jury may then act not to reconcile the in-

consistency but to revise the verdict in accord with its col-

lective perception of the judge’s attitude toward the case.

The resubmission may also communicate to the jury

the legal effect of its answers and thus facilitate any im-

pulse it may have to ‘“‘do justice” in the case. Of course, to

the extent the jury is moved by such influences to

disregard its institutional role of finding the facts on the

A-13

basis of the evidence presented at trial, the command of the

seventh amendment is violated.

Although our circuit has long recognized that incon-

sistent special verdict answers may be resubmitted for jury

reconciliation, we nonetheless have stated that the seventh

amendment “‘should not normally justify ‘reconsideration’

of those answers .. .’’ Perricone, 704 F.2d at 1379. Until to-

day, we have never afforded a trial court ‘wide discretion’’

to decide whether the answers are in fact inconsistent.

Rather, the resubmission procedure has been hedged in

prophylactic safeguards, precisely because of the difficulty

of detecting a violation in the record, and we have always

viewed resubmission as proper only in certain exceptional

circumstances: “‘[T]he Seventh Amendment requires that if

there is a view of the case which makes the jury’s answers

consistent, the court must adopt that view and enter judg-

ment accordingly.’’Jd. (quoting Griffin v. Matherne, 471

F.2d 911, 915 (5th Cir. 1973)). See also Nance v. Gulf Oil

Corp., 817 F.2d 1176, 1178 (5th Cir. 1987).

Our standard for reviewing a trial court’s resubmis-

sion of a special verdict has evolved as a logical analogue

to our more well-refined standard for reviewing a judgment

entered upon a verdict claimed on appeai to be irrecon-

cilably inconsistent. Both classes of cases share the same

premise that the seventh amendment right to a jury trial

subsumes the right to a reconcilable verdict and both

classes of cases have employed the same test for determin-

ing whether jury answers to special verdicts are

inconsistent:

This court has stated that the test to be applied

in reconciling apparent conflicts between the

jury’s answers is whether the answers may fairly

be said to represent a logical and probable deci-

A-14

sion on the relevant issues as submitted, even

though the form of the issue or alternative selec-

tive answers prescribed by the judge may have

been the likely cause of the difficulty and largely

produced the apparent conflict.

Griffin v. Matherne, 471 F.2d at 915.!

In applying this test, we have acknowledged a con-

stitutional requirement ‘‘to make a concerted effort to

reconcile apparent inconsistencies if at all possible.”’

Mercer v. Long Mfg. N. C., Inc., 665 F.2d 61, 65 (5th

Cir.1982) (citing Atlantic & Gulf Stevedores, Inc. v. Eller-

man Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7

L.Ed.2d 798 (1962), and Griffin v. Matherne). If reconcilia-

tion is possible, then it is reversible error for a trial court

to have entered judgment on a resubmitted verdict. See

McCollum v. Stahl, 579 F.2d 869, 870-71 (4th Cir.1978),

cert. denied, 440 U.S. 912, 99 S.Ct. 1225, 59 L.Ed.2d 460

GOs Gene and approved in Perricone, 704 F.2d at

1380).

1 Judge Godbold’s opinion in Griffin v. Matherne is the leading case in

this circuit for determining whether judgment has been improperly

entered on an inconsistent verdict. For resubmission cases quoting the

Griffin test as set out above, see Perricone, 704 F.2d at 1379; Fugitt v.

Jones, 549 F.2d 1001, 1005 (5th Cir.1977).

2 Before today, the only case from our circuit to review a trial court’s

decision to resubmit a verdict form containing answers not legally incon-

sistent was Perricone v. Kansas City S.Ry. There, we flatly rejected af-

fording the trial court discretion in such circumstances, 704 F.2d at

1379 (distinguishing Morrison v. Frito-Lay, Inc., 546 F.2d 154 (5th

Cir.1977), and held that the defendant had a constitutional right to the

verdict as returned after the original submission. Jd. at 1380. The defen-

dant, however, was held to have waived that right by failing to object

contemporaneously to the resubmission. My review of the record in the

instant case reveals that Firestone entered a timely objection and re-

quested the judge to enter judgment on the original verdict.

A-15

The basic question in the instant case, then, is

whether it is possible to create a consistency between the

answers contained in the verdict before the trial court

resubmitted it. This case went to the jury on the following

questions and reappeared the first time with the following

responses:

Interrogatory No. 1:

Has plaintiff, Michael Lynn Richard, established

by a preponderance of the evidence:

a) That the Firestone multipiece rim was

defective?

Yes X No_

b) That the injury plaintiff suffered was caused

by a defective condition in Firestone’s rim

and such injury might reasonably have been

anticipated by the manufacturer?

Yes__ No X

(footnote 2 continued)

Authorities cited by the majority are not to the contrary. In Nance

v. Gulf Oil Co., we did not defer to the trial court’s discretion to deter-

mine the existence of an inconsistency. Rather, we ourselves attempted

to reconcile the verdict, concluding that “our imagination does not

stretch so far as to harmonize the findings that Gulf was neither

negligent nor strictly liable with the finding rendered against Gulf on

the issue of comparative fault. Because the answers in the first verdict

were irreconcilable, there was no seventh amendment violation by the

resubmission of the verdict form.’’ 817 F.2d at 1178 (emphasis added).

Likewise in Landry v. Offshore Logistics, Inc., 544 F.2d 757, 761 (5th

Cir.1977), resubmission was proper because the inconsistency was ir-

The jury both had found the plaintiff not contributorily

negligent and, in a subsequent issue, had assessed the degree of his con-

tributory negligence at 75%. Further, as in Perricone, the defendant

made no objection when the jury was sent back for further deliberations.

Id.

A-16

c) There was actual damage to plaintiff's

person?

Yes X No _

If your answer to A or B is ‘‘No” go no further.

If your answer to A and B is ‘“‘Yes’’ then you must answer

one or more of Interrogatory No. 2 a-d “Yes”.

Interrogatory No. 2:

a) Is the Firestone multipiece rim assembly

defective because the risk of hazards of the

product outweighs the utility of the product?

Yes _ No X

b) Is the Firestone multipiece rim assembly

defective in design because alternative pro-

ducts were available to serve the same needs

with less risk of harm?

Yes __ No X-

c) Is the Firestone multipiece assembly defec-

tive because there was a feasible way to

design the product with less harmful

consequences?

Yes __ No X

d) Is the Firestone multipiece rim assembly

defective because Firestone failed to ade-

quately warn about the dangers of the pro-

duct and the methods of avoiding those

dangers?

Yes X No _

A-17

Interrogatory No. 3:

Was the fault or negligence of the plaintiff,

Michael Lynn Richard, a cause of his injury?

Yes X No _

Interrogatory No. 4:

Express in terms of a percent, the degree of the

parties’ fault or negligence.

Plaintiff 90%

Defendant 10%

Total 100%

(Note, the percentages above must total 100%).

Interrogatory No. 5: .

In terms of dollars, without reducing this damage

figure by any percentage of negligence of which you may

have found plaintiff guilty, how much in total damages

did the plaintiff sustain as a result of the accident?

a) Injury, pain, disability, disfigurement, loss

of capacity for enjoyment of life.

$150,000

b) Medical expenses.

$200,000

c) Lost earnings, lost earning capacity.

$279,000

A-18

(Fill in each blank with a dollar amount or with a “O”’ if

you find no damages for a particular category.)

Manifestly, the jury found that the rim was defective

(Interrogatory 1(a)) but that Richard’s injury was not prox-

imately caused by the defect (Interrogatory 1(b)).

Disregarding its instruction not to proceed further if it

found either no defect or no proximate cause, the jury went

on to express the degree of Firestone’s fault in terms of a

ten percent figure (Interrogatory 4).

Whether resubmission was proper, then, depends

upon whether it is possible to reconcile a finding of com-

parative fault with a finding of no proximate cause. Stated

alternatively, does a finding of comparative fault necessari-

ly imply a finding of proximate cause? If if does not, then

the trial court should have entered judgment exonerating

Firestone on the first set of answers.

In attempting to reconcile special verdicts, the court

must also look to the instructions given the jury therein.

Griffin, supra; Mercer, supra. As to the definition of

“fault,” the trial judge instructed the jury that “‘the plain-

tiff must establish by a preponderance of the evidence that

the defendant has engaged in sub-standard conduct and is

thus, in legal terms, ‘at fault’”’. Fault, therefore, as defined

in the instruction, does not contain a causation component.

Fault simply equates to sub-standard behavior, which may

or may not have been the legal cause of plaintiff's injury.®

3 It is not unusual for a defendant to be found negligent, because of

substandard behavior, but to be completely exonerated because its

negligence was not the cause of the plaintiff's injury. In Cooper v. Mar-

riott Corp., 851 F.2d 1419 (5th Cir.1988) (per curiam), for example, the

plaintiff sued a hotel for injuries he sustained as a result of an assault

in the hotel’s parking garage. The jury concluded that the hotel was

negligent in that its security system was inadequate. But it also

A-19

The conceptual separation of fault and causation is further

borne out by the logical structure of Interrogatory No. 3,

which expressly assumes Richard’s fault and then ques-

tions the jury as to whether such fault was the cause of

Richard’s injury.

Accordingly, there is an easily-found view of this

case that the jury’s allocation of fault to Firestone is entire-

ly consistent with its finding that Firestone did not legally

cause Richard's injury. The jury could have seen the fault

allocation issue as asking for a comparison—in percentage

terms—of the extent to which each party’s behavior was

substandard, or ‘‘at fault.’’ Firestone was at fault because

it had sent a product into the stream of commerce without

giving warning of the dangers inherent in its foreseeable

use and without instructing use of the product in a way

calculated to minimize those dangers.

Richard, however, was already aware of the dangers

of which Firestone was under a duty to warn and of the pro-

cedures for avoiding them. Since he failed to follow those

procedures in assembling the rim, his fault was found to be

proportionately much greater than Firestone’s. Further-

more, by viewing Richard’s fault as a superseding cause of

his own injury, the jury could consistently find no causal

link between Firestone’s fault—its failure to warn—and

Richard’s injury.

(Footnote 3 continued)

answered that. such negligence was not the cause of plaintiff's injury,

based upon the hotel's assertion that because of the quickness of the at-

tack and plaintiff's proximity to an entrance, even adequate security

measures would not have prevented the attack. Rejecting plaintiff's_

argument that the jury’s answers were inconsistent, we affirmed the

judgment rendered in favor of the hotel.

A-20

The majority holds that the trial court acted within

its discretion in drawing the permissible inference of prox-

imate cause from a finding of comparative fault. In effect,

the court is retreating from its previous recognition of a

seventh amendment right to judgment on a verdict where

there is “some view of the case that makes the jury's

answers consistent."’ Nance, 817 F.2d at 1178.

This rule is turned on its head by affording the trial

judge ‘‘wide discretion” to resubmit a verdict whenever, in-

stead, there is some view of the case that makes the jury's

answers inconsistent, or even worse, when something

about the jury’s answers alerts the trial judge to the

possibility that the jury might have been confused in

rendering its verdict. Although I am in full agreement with

the majority that the trial judge is in a much better posi-

tion than we to evaluate whether the answers reflect confu-

sion or uncertainty, I believe, as I have pointed out, that

the potential for off-the-record interference with the jury's

constitutional function is too great to permit the type of

free-wheeling procedure which the majority today

endorses.

Il.

Additionally, as a second, independent ground for

reversing and rendering judgment on the jury’s first ver-

dict, I would hold that anytime an inconsistency is created

by a jury response given in violation of a proceed-no-

further instruction, that response should be treated as

mere surplusage and disregarded. The proceed-no-further

instruction should protect a defendant’s right to a

favorable finding on a liability issue by preventing juries

from inconsistently answering apportionment or damage

issues that have been structured to assume the existence of

the requisite elements of libility. See White v. Grinfas, 809

A-21

F.2d 1157 (5th Cir.1987).4

To resubmit the verdict after the jury has disregard-

ed the court’s instruction is unfair to the defendant. If, for

example, the jury is unaware of the legal effect of its

answers at the time of first submission but is predisposed

to award the plaintiff damages, then there is always a

substantial possibility, so long as the jury remains unin-

formed, that it will answer a liability issue favorably to the

defendant. Afterwards, it may create an “inconsistency”

by answering an issue that requires it to state the amount

of damages necessary to compensate the plaintiff for the

defendant’s actionable conduct.

4 In White, we confronted a judgment which, appellant contended, had

been entered on the basis of irreconcilable answers to special inter-

rogatories. The problem was caused by the jury's failure to abide by a

proceed-no-further instruction. This instruction directed the jury not to

answer further questions if it found that the counterclaim-defendants

did not know of structural defects they had allegedly concealed. Because

all questions subsequent to Question 3 were predicated on an affir-

mative response to that question—and thus, expressly assumed that the

counterclaim-defendants had possessed culpable knowledge—the subse-

quent answers necessarily conflicted with Question 3.

Acknowledging our seventh amendment duty “to reconcile the

answers, if possible, in order to validate the jury's verdict” (not the

lower court's judgment), we devised a rule “‘[t}o effectuate best the in-

tent of the jury’’: “[ijf the district court has correctly found that the

jury's answer to a question that was supposed to terminate further in-

quiry is clear and disposes of legal issues, on review we must ignore the

jury's necessarily conflicting answers to other questions."’ Jd. at 1161

(emphasis added)

From this premise, the majority concludes that ‘ ‘in White we recogniz-

ed the broad discretion the district court enjoys to refuse to consider in-

terrogatories answered in violation of the court's instructions."’ This

conclusion is erroneous, however, because it wrongly assumes that our

seventh amendment obligation to reconcile jury answers whenever

possible does not apply with equal force when the district court does not

reconcile them. Moreover, I find nothing in White to indicate that a

district court has discretion to consider extraneous answers returned by

a jury in violation of a proceed-no-further instruction.

A-22

When the inconsistent verdict is then resubmitted

with renewed emphasis by the judge that damages cannot

be assessed unless the jury “‘reconsiders”’ its answer on the

liability issue, the risk of an informed sympathy verdict is

great. This risk should not fall on the defendant when the

jury creates an inconsistency in violation of the court’s in-

structions. In other words, it is wrong to reward one party

(in this case, the plaintiff) and penalize the other party (in

this case, the defendant) for the sole reason that the jury

disobeyed the clear instructions given by the court.

For the foregoing reasons, I would reverse and

render judgment for the defendant.

x A-23

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Filed

Oct 12 1988

No. 87-4815

MICHAEL LYNN RICHARD,

Plaintiff-Appellant-

Cross-Appellee,

versus

THE FIRESTONE TIRE & RUBBER CO.,

Defendant-Appellee-

Cross-Appellant,

versus

HARDESTY TIRE REPAIR,

Intervenor-Appellee.

Appeals from the United States District Court for the

Western District of Louisiana

ON PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

(Opinion SEPTEMBER 7, 1988,

5 Cir., 198_, F.2d__)

Before GEE, DAVIS and SMITH, Circuit Judges.

A-24

PER CURIAM:

(.) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc, (Federal Rules of Appellate Procedure

and Local Rule 35) the Suggestion for Rehearing En Banc

is DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it,

(Federal Rules of Appellate Procedure and Local Rule 35)

the Suggestion for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/__W. Eugene Davis

United States District Judge

A-25

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

Filed

Sep 28 1987

MICHAEL LYNN RICHARD,

versus CIVIL ACTION NO.

86-0046

FIRESTONE TIRE & RUBBER CO.,

JUDGMENT

IT IS ORDERED, ADJUDGED and DECREED

that judgment is entered in favor of plaintiff, Michael Lynn

Richard, and against defendant, Firestone Tire & Rubber

Co. in the amount of $62,900 plus interest from date of

judicial demand until paid; and

IT IS FURTHER ORDERED, ADJUDGED and

DECREED that judgment is entered in favor of in-

tervenor, Hardesty Tire Repair, in the amount of $4,226.54

against plaintiff, Michael Lynn Richard, plus judicial in-

terest from the date of intervention until paid.

THUS DONE AND SIGNED at Monroe, Louisiana,

this 28th day of September, 1987.

/s/ Donald E. Walter

DONALD E. WALTER

UNITED STATES DISTRICT JUDGE

Judgment Entered 9-29-87

A-26

APPENDIX D

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

MICHAEL LYNN RICHARD

VERSUS : CIVIL ACTION

No. 86-0046-LC

FIRESTONE TIRE &

RUBBER COMPANY, ET AL

INTERROGATORIES TO JURY

Interrogatory No. 1:

Has plaintiff, Michael Lynn Richard, established by

a preponderance of the evidence:

a) That the Firestone multipiece rim was

defective?

Yes Cal No

b) That the injury plaintiff suffered was caused

by a defective condition in Firestone’s rim

and such injury might reasonably have been

anticipated by the manufacturer?

Yes pe

c) There was actual damage to plaintiff’s

person?

Yes ial No

A-27

If your answer to A or B is ‘‘No”’ go no further.

If your answer to A and B is “Yes’’ then you

must answer one or more of Interrogatory No.

2a-d “Yes.”

Interrogatory No. 2:

a) Is the Firestone multipiece rim assembly

defective because the risk of hazards of the

product outweighs the utility of the product?

Yes No “

b) Is the Firestone multipiece rim assembly

defective in design because alternative pro-

ducts were available to serve the same needs

with less risk of harm?

Yes No -

c) Is the Firestone multipiece assembly defec-

tive because there was a feasible way to

design the product with less harmful

consequences?

Yes No ~

d) Is the Firestone multipiece rim assembly

defective because Firestone failed to ade

quately warn about the dangers of the pro-

. duct and the methods of avoiding those

dangers?

Yes ” No

Interrogatory No. 3:

Was the fault or negligence of the plaintiff, Michael

Lynn Richard, a cause of his injury?

Yes od No

(If your answer to Interrogatory No. 3 is ‘“‘No’’, go to Inter-

rogatory No. 5).

Interrogatory No. 4:

Express, in terms of a percent, the degree of the par-

ties’ fault or negligence.

Plaintiff 90 %

Defendant 10 %

Total 100 %

(Note, the percentages above must total 100%).

Interrogatory No. 5:

In terms of dollars, without reducing this damage

figure by any percentage of negligence of which you may

have found plaintiff guilty, how much in total damages did

the plaintiff sustain as a result of the accidnent{sic]?

a) Injury, pain, disability, disfigurement, loss

of capacity for enjoyment of life.

$150,000

b) Medical expenses.

$200,000

A-29

c) Lost earnings, lost earning capacity.

$279,000

(Fill in each blank with a dollar amount or with a “‘0”’ if you

find no damages for a particular category).

Lake Charles, Louisiana this 22nd day of September,

1987.

/s/ Carol A. Hess

FOREPERSON

A-30

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

Filed

Sep 22, 1987

MICHAEL LYNN RICHARD

VERSUS : CIVIL ACTION

No. 86-0046-LC

FIRESTONE TIRE &

RUBBER COMPANY, ET AL

INTERROGATORIES TO JURY

Interrogatory No. 1:

Has plaintiff, Michael Lynn Richard, established by

a preponderance of the evidence:

a) That the Firestone multipiece rim was

defective?

Yes al No

b) That the injury plaintiff suffered was caused

by a defective condition in Firestone’s rim

and such injury might reasonably have been

anticipated by the manufacturer?

Yes - No

c) There was actual damage to plaintiff's

person?

Yes v No

A-31

If your answer to A or B is “‘No”’ go no further.

If your answer to A and B is “Yes’”’ then you

must answer one or more of Interrogatory No.

2a-d “Yes.”

Interrogatory No. 2:

a) Is the Firestone multipiece rim assembly

defective because the risk of hazards of the

product outweighs the utility of the product?

Yes No al

b) Is the Firestone multipiece rim assembly

defective in design because alternative pro-

ducts were available to serve the same needs

with less risk of harm?

Yes No a

c) Is the Firestone multipiece assembly defec-

tive because there was a feasible way to

design the product with less harmful

consequences?

Yes No “

d) Is the Firestone multipiece rim assembly

defective because Firestone failed to ade-

quately warn about the dangers of the pro-

duct and the methods of avoiding those

dangers?

Yes - No

A-32

Interrogatory No. 3:

Was the fault or negligence of the plaintiff, Michael

Lynn Richard, a cause of his injury?

Yes at No

(If your answer to Interrogatory No. 3 is ‘“‘No’’, go to In-

terrogatory No. 5).

Interrogatory No. 4:

Express, in terms of a percent, the degree of the par-

ties’ fault or negligence.

Plaintiff 90. %

Defendant 10 %

Total 100. %

(Note, the percentages above must total 100%).

Interrogatory No. 5:

In terms of dollars, without reducing this damage

figure by any percentage of negligence of which you may

have found plaintiff guilty, how much in total damages did

the plaintiff sustain as a result of the accident?

a) Injury, pain, disability, disfigurement, loss

of capacity for enjoyment of life.

$150,000

b) Medical expenses.

$200,000

A-33

c) Lost earnings, lost earning capacity.

$279,000

(Fill in each blank with a dollar amount or with a ‘‘0”’ if you

find no damages for a particular category).

Lake Charles, Louisiana this 22nd day of September,

1987.

/s/ Carol A. Hess

FOREPERSON

A-34

APPENDIX F

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

RICHARD, MICHAEL LYNN °

VERSUS ° No. 86-0046

THE FIRESTONE TIRE & °

RUBBER CO.,

[EXTRACT FROM COURT TRANSCRIPT

JURY CHARGES]

In this case the Plaintiff, Michael Richard, claims damages

for personal injuries alleged to have been caused by a defec-

tive condition in the multipiece rim manufactured by

Firestone Tire and Rubber Company. Specifically, the

Plaintiff alleges that while he was working on a tire and

rim, which were to be remounted on a large diesel truck, the

multipiece rim upon which the tire was mounted disengag-

ed and struck the plaintiff. You are instructed as a matter

of law that the plaintiff must establish by a preponderance

of the evidence that the defendant has engaged in substan-

dard conduct and is thus in legal terms at fault. In this case

involving alleged damage from a product, the basic stan-

dard applicable to the manufacturer is: The manufacture of

a product which involves a risk of injury to the user is liable

to any person, whether the purchaser or a third person,

who, without fault on his part, sustains an injury caused by

a defect in the design, composition or manufacture of the

product, if the injury might reasonably have been an-

ticipated. The product may be defective in its design for

any one of three reasons. First, that a reasonable person

would conclude that the danger in fact, or risk of harm

A-35

posed by the design outweighs the benefits which flow

from it. Second, even if the benefits which flow from the

product outweigh the danger in fact, the manufacturer is

liable if alternative products were available to serve the

same needs with less risk of harm. Or third, if it were feasi-

bie to design the product with less harmful consequences,

the manufacturer is liable. The plaintiff must establish by

a preponderance of the evidence three essential elements in

order to recover on this claim. First, that the product made

by the defendant had a defect which existed at the time the

defendant made it. Second, that the injury which the plain-

tiff suffered was in fact caused by the defect in the defen-

dant’s product and might reasonably have been an-

ticipated. And third, that there was actual damage to the

plaintiff's person. The first element of the plaintiff's case is

that the product made by the defendant has a defect which

existed at the time the defendant made it. When I use the

word defect, I mean something more than a flaw or an im-

perfection. The law recognizes that manufacturers need not

make a foolproof or accident proof product with no flaws

whatsoever. Therefore, we use the word defect to describe

some flaw that makes the product unreasonably dangerous

when it is in normal use. Normal use is a manner of

foreseeable use and may include something broader than

operation exactly in accordance with the manufacturer’s in-

structions. In determining whether danger or risk of harm

is unreasonable, probability and magnitude of risk are to be

balanced against the utility of the product. A product is

defective or unreasonably dangerous when a reasonable

seller would not sell the product if he knew of the risk in-

volved, or if the risks are greater than a reasonable buyer

would expect. Included within this rule is the principle that

a product may be defective by a failure of a manufacturer

to give warning. A manufacturer of a product must give

warning of any danger inherent in a product made by it, or

in its use of which it knows or should know in which the

A-36

user of the product would not ordinarily discover. The

warning should be such that if followed it would make the

product safe for users. To comply with this duty the

manufacturer must give adequate warning, giving due con-

sideration to the likelihood of an accident and the

seriousness of the consequences from the failure to warn of

any dangers that are inherent in and its use, or that may

arise from improper handling or use of the product. In

determining whether a manufacturer has fulfilled its duty

to provide an adequate warning, a manufacturer is presum-

ed to keep abreast of scientific knowledge, discovery and

advances. However, the duty of the manufacturer to warn

goes only to those dangers which are not obvious. A

manufacturer is not compelled to warn knowledgeable

users of the dangers of which they either know or should be

aware. Also, a manufacturer can not be held liable for in-

juries caused by a defect where the defect was created by

an alteration or change in the product that amounts to an

intervening or superseding event. If you are convinced that

the product was defective according to this definition, then

the plaintiff need not prove any particular carelessness by

the maker in its manufacturer. The manufacturer is

presumed to know of the defects in the things he makes,

whether or not he has actual knowledge of them. It is not

necessary for plaintiff to prove the precise nature of the

defect, only that a defect existed and caused the injure

complained of. But in order to return a verdict for the plain-

tiff without proof of carelessness on the part of the maker

of the product, you must be convinced by a preponderance

of the evidence that the product was defective, that the

risks inherent in the product were greater than the

reasonable buyer would expect. As to the requirements

that the plaintiff’s injury be caused by the defendant’s pro-

duct. I don’t mean that the law recognizes only one cause

of any injury consisting of only one factor or thing or the

conduct of only one person. On the contrary, many factors

A-37

or things may operate at the same time, either independently or

together, to cause injury or damage. If you find a defect, you

should resolve the question of causation by deciding whether the

plaintiff would probably not have suffered the claimed injuries in

the absence of the defect in the defendant’s product. If the plain-

tiff probably would have suffered those injuries, regardless of

the defect in the product, then you must conclude that the in-

juries were not caused by the defendant, and render a verdict for

the defendant. If on the other hand, plaintiff probably would not

have suffered the claimed injuries in the absence of the defect in

the product, then you must conclude that the defect did play a

part in the plaintiff’s injury, and you must proceed to the next

element of the plaintiff’s case.

A-38

APPENDIX G

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

RICHARD, MICHAEL LYNN °

VERSUS ? No. 86-0046

THE FIRESTONE TIRE & °

RUBBER CO.,

[EXTRACT FROM COURT TRANSCRIPT]

(WHEREUPON, THE JURY RETURNED TO THE

COURTROOM, AFTER WHICH, THE FOLLOWING

OCCURRED:

THE COURT: Okay, Ms. Hess, Y'all have reached a

verdict?

MS. HESS: Yes, your honor, we have.

THE COURT: _ If you will hand it to the Marshall, please.

All right. Ladies and gentlemen, I am going

to let you retire for a minute longer and I

will be right back with Y'all. All right?

WHEREUPON, THE JURY LEFT

THE COURTROOM, AFTER WHICH,

THE FOLLOWING OCCURRED:

THE COURT: Gentlemen, the verdict is improper. They

answer one of the interrogatories yes. On in-

terrogatory number one they answer one of

A-39

them yes and one of them no, out of the first one. And then

they proceed to answer the rest of them. I will listen to sug-

gestions before I do what I am going to do.

MR. HAMLIN: You don’t want to tell us.

THE COURT: I will tell you what they did

on the first one. They said, in answer to ‘‘A”’ they said yes.

And in anwer to “‘B” they said no. And with “C’’ they said

yes. All right, Mr. Hamlin, you are up.

MR. HAMLIN: Your honor, I think that’s a defense

verdict.

THE COURT: And?

MR. HAMLIN: According to your verdict form.

THE COURT: What do you suggest I do?

MR. HAMLIN:I would move to have a judgment

entered in accordance with the verdict.

THE COURT: All right. Mr. Lundy, what’s your

suggestion?

MR. MASSEY: Your honor, if they answered the inter-

rogatories on the next page yes, then it would seem to me

that rather than being a defense verdict, it would in fact be

a plaintiff's verdict.

A-40

THE COURT: And so you think I ought to accept this

verdict and make of it what I can? Think about it, I will be

back in a second.

(WHEREUPON, COURT WAS RECESSED FOR

A SHORT PERIOD OF TIME AND THEN RETURNED

AND THE FOLLOWING OCCURRED:

THE COURT: I am going in myself, I assume there are

no objections? All right. I propose to go in there and tell

them to re-read page one and follow that instruction at the

bottom of the page. I will take your objection to that first.

MR. MASSEY: Your honor, I don’t have any objections,

but I would ask that one additional thing be told to the jury

and that is that there verdict is inconsistent because they

have not in fact followed the instruction that if they, if they

put answer ‘‘B’”’ No, that they should not.

THE COURT: I am just going to say you have not

followed the instructions on page one. Please try to do so.

MR. HAMLIN: My objection is that.

THE COURT: Wait. Don’t.

MR. MASSEY: My objection is that I think the court

should fully explain how they have not followed the

instruction.

THE COURT: It’s plain as the nose on your faces down

at the bottom.

A-41

MR. MASSEY:I think they obviously didn’t

understand.

THE COURT: I will underline ‘““OR’’.

MR. MASSEY:I still would like to have a more

elaborate instruction.

THE COURT: Well, tell me.

MR. MASSEY: I would like the jury to be told that by

answering question ““B’’ no, that they are thereby pro-

hibited from going any further, and that they can not

answer any questions on page 2, 3 or 4, once they have

answered either “‘A’’ or “B”’.

THE COURT: Keep talking, I am listening.

MR. MASSEY: And that’s my request.

THE COURT: I am going to write them a note, your

verdict, as written, is not correct. Underline ‘‘NOT’’. Please

note the directions at the bottom of page one. If your

answer to “‘A’”’ or, and I have underlined ““OR”’ twice, ““B”’

is no, you should not, underline ““NOT’’, answer any other

questions. If both are““YES” you should answer further as

directed.

MR. MASSEY: I will go with that your honor.

THE COURT: All right.

MR. HAMLIN: I strongly object to that. Your note, by

its very terms, implies that you disagree with the verdict.

I, first of all, want to move for judgment in accordance with

the verdict where the defense, a judgment for the defense

A-42

in accordance with the verdict. This jury has been out now

for five and a half hours, has sent one note that indicated

they didn’t find a defect in the product. They have now

returned a verdict that finds for the defendant. They have

gone forward, they have gone beyond page one when they

should not have. But in accordance with their answer to

‘““B”’, it is a defense verdict. They have found that no injury,

that the injury was not caused by a defective condition.

And I think to further encourage them to deliberate,

Judge, is asking them to come back with a plaintiff's

verdict.

THE COURT: All right, sir.

MR. HAMLIN: Short of your agreeing with everthing I

would just said I would ask that you do nothing more than

say-

THE COURT: Frankly, I think it doesn’t make any dif-

ference for me not to agree with you. I think whatever you

have preserved you can still argue when it’s over because

I have made a true and correct copy of the thing as it now

stands. And I will put it under seal in the record until after

that jury leaves. And you may all look at what they first

sent back.

MR. HAMLIN: All right, but further, in addition to

what I have said, Judge, I think what you are going to say

is highly prejudicial to me.

THE COURT: All right, so what do you want me to

say?

MR. HAMLIN: In addition to what I have just said it

seems to me like you need to simply call their attention to

the bottom sentence on page one.

A-43

THE COURT: Your verdict as written is not correct in

form.

MR. HAMLIN: Not proper in form.

THE COURT: In proper form.

MR. HAMLIN: The word correct is the word I would

most strongly disagree with. :

THE COURT: Your verdict is not in proper form.

MR. HAMLIN: Please refer to the sentence at the bot-

tom of page one.

THE COURT: Your verdict, as written, is not in proper |

form. Please note, somebody stop me any time, the direc-

tions at the bottom of page one.

MR. HAMLIN: Stop.

MR. MASSEY: Continue.

THE COURT: No, I have to. If your answer to “A’”’ or

“B”’ is no, you should not answer any other questions.

MR. MASSEY: On the following pages.

MR. HAMLIN: Any further questions, period.

THE COURT: On the following pages, if both ‘‘A”’ and

‘“‘B”’ are yes, you should continue as directed.

MR. HAMLIN: Judge, that last sentence is highly

prejudicial.

A-44

THE COURT: You should continue as directed?

MR. HAMLIN: No, but you are suggesting that they

ought to think about putting yes for “A” and “B’’. That’s

a strong suggestion from the court what in the world is

necessary? This is a not a, this is an intelligent jury, Judge.

You have a school teacher. They can read that last sentence

just like I can. They don’t need that last sentence from you.

That suggests to them that the Court wants them to go

back and reconsider number “‘B’’. No other way to read

that kind of a note.

THE COURT: If your answer to “A” or “B”’ is no, you

should not answer any of the other questions.

MR. HAMLIN: You don’t need that sentence or the

next one.

THE COURT: If both “A” and “B” are yes, you

should continue as directed.

MR. HAMLIN: Why put either one of those, Judge?

This is an intelligent jury.

THE COURT: I am going to do it. All right. Anything

else?

MR. HAMLIN: My point is, Judge, you are suggesting

that they change an answer. I think-

THE COURT: I am going to walk in there and say, I do

not mean to suggest an answer to Y’all. No, I’m not. I am

going to leave it just like this. Okay.

WHEREUPON, COURT WAS RECESSED FOR A

SHORT PERIOD OF TIME AND THEN RETURNED

AND THE FOLLOWING OCCURRED:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.