Petition for Writ of Certiorari — Lear Siegler, Inc. v. Kirby

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

LEAR SIEGLER, INC., a Delaware Corporation,

. Petitioner,

v.

RANDALL SCOTT KIRBY,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

WILLiAM H. Cosy *

SHOOK, HARDY & BACON

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

(816) 474-6550

WENDELL E. KOERNER, JR.

BROWN, DOUGLAS AND BROWN

Pioneer Building

510 Francis Street

St. Joseph, Missouri 64501

(816) 232-7748

Counsel for Petitioner

March 18, 1991 * Counsel of Record

' =

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the court of appeals in this diversity case de-

parted from settled principles governing federal court de-

terminations of state law by expressly rejecting and

refusing te follow the latest decision from a state inter-

mediate appellate court.

ii

LIST OF PARTIES

The caption of the case contains the names of all

parties.

TABLE OF CONTENTS

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STATUTES AND RULES INVOLVED ...........0.......

STATEMENT OF THE CASE. ........................................

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REASONS FOR GRANTING WRIT .....0. oo...

I. THE COURT OF APPEALS PLAINLY VIO-

LATED THE FUNDAMENTAL PRINCIPLES

ESTABLISHED BY THIS COURT FOR DE-

TERMINING STATE LAW WWW...

A. The Court of Appeals Ignored Controlling

| Ee

B. The Court of Appeals Error Raises Issues of

Fundamental Importance .............00000.0......0.0.--

ES

(iii)

Page

iv

TABLE OCF AUTHORITIES

Cases: Page

Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3

6 SRNR eran e ye eel oP vn TROON LI” ROR A 6

Duke v. Gulf & Western Manufacturing Co., 660

S.W.2d 404 (Mo. App. 1988) ~..........002. ee. 9

Erie R. Co. v. Tompkins, 304 U.S. 64 (1988) ......... 5-6, 10

Ferens v. John Deere Co., 110 S. Ct. 1274 (1990)... 6

Fidelity Trust Co. v. Field, 311 U.S. 169 (1940)... 7

Freeport McMoRAN, Inc. v. K.N. Energy, Inc.,

ES RR ee ree 6

Gibson v. Phillips Petroleum Co., 352 U.S. 874

6 PRR Rate yioa eI cs RR AO 0 oe 6

Gomez v. Clark Equipment Company, 743 S.W.2d

Or 4, 7-10

Guaranty Trust Co. v. York, 326 U.S. 99 (1945)... 6

Hales v. Green Golonial, Inc., 490 F.2d 1015 (8th

RRR EE ARRAS SR aires ete See 8

Hanna v. Plumer, 380 U.S. 460 (1965) ...000000 0... 6

Hicks v. Feiock, 485 U.S. 624 (1988) -....000000000000... 7-9

Jarrell v. Fort Worth Steel & Manufacturing Co.,

666 S.W.2d 828 (Mo. App. 1984) -.......0220 en... 9

Nesselrode v. Executive Beechcraft, Inc., “707

S.W.2d 871 (Mo. banc 1986) ....................000000.... 9

Six Companies v. Highway District, 311 U.S. 180

| RSPR Maes bs Cs Ree ae Oe Te Pe Se 5

Stoner v. New York Life Ins. Co., 311 U.S. 464

I ia eae re a ee: 5

Vanskike v. ACF Industries, Inc., 665 F.2d 188

(8th Cir. 1981), cert. denied, 455 U.S. i000

a Pict SN RA hee EE SNe Ses ek 8-9

West v. A. T. & T. Co., 311 U.S. 223 (1940) . eee 7

Younger v. Harris, 401 U.S. 87 (1971) —.......00.2..... 5

Constitution and Statutes:

a cesacaieniioniebieninnaas 1

Other Authorities:

$9 Defense L. J. 279 (1990) ......................... ee . 2)

76 A.B.A. Journal 35 (Mar. 1990) ....0..-o ee. 9

L. 1987 H.B. No. 700 § C, effective July 1, 1987... 9

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1990

No.

LEAR SIEGLER, INC., a Delaware Corporation,

. Petitioner,

RANDALL SCOTT KIRBY,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

”?)

Lear Siegler, Inc. (“Lear Siegler’) respectfully peti-

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eighth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-2a) is unreported. The opinion of the district court

(App. B, infra, 3a-10a) is also unreported.

JURISDICTION

The judgment of the court of appeals was entered in

November, 1990. The court denied a timely petition for

rehearing on December 13, 1990 (App. D, infra, 16a).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254/1).

2

STATUTES AND RULES INVOLVED

T preduct liability suit involved the application of

Miss. ri common law, as set out fully below, by a federal

_ court,

STATEMENT OF THE CASE

A. The Accident

This is a product liability action arising from an acci-

dent in 1986. Respondent Randall Kirby was injured

while using a fifty-one foot long portable grain auger

manufactured by petitioner Lear Siegler. A grain auger

is a simple farm implement used to transport seed or

grain. A long rotating corkscrew encased in protective

housing carries grain or seed from an intake area on

the auger to the auger downspout. It is a familiar scene

on farms to see a stream of grain or seed pouring from

the top of an auger into a waiting grain truck or silo.

Lear Siegler manufactured the auger involved in this

case in 1979. When it left the factory, the auger had a

guard over the intake opening at the bottom of the auger

as well as protective guards mounted over the entire

length of the drive shaft. These guards were designed to

be easily removable for routine maintenance, including

tubrication. The guards also had to be removed to clear

the auger if it became clogged.

On the day of his accident, Kirby was loading grass

seed into a grain truck from the warehouse of his em-

ployer, the Empire Seed Company. Empire Seed loaded

grass seed onto trucks through an opening high on the

wall of the warehouse by use of the portable grain auger.

The process of loading seed with the auger required two

tractors. One tractor had a power take off (“PTO”)

shaft connected to the auger, which supplied the power

to drive the auger. Empire Seed used the second tractor

to load grain into the intake end at the bottom of the

auger.

3

Empire Seed jury-rigged the storage of seed at this

warehouse to help dry it. Along one wall of this ware-

house it mounted dryers at floor level. Along another

wall it laid large concrete blocks on the floor, and stacked

hollow wooden pallets on top of the blocks. It then spread

cheesecloth over the top of the pallets to prevent the seed

from falling through the pallets and cinder blocks, and

the seed was piled on top of the cheesecloth. Under-

standably, the auger from time to time became clogged

with cheesecloth, broken pallet boards and even pieces of

breken concrete block. Such a clog caused the auger or

its power unit to shut down and the operator had to clear

the clog before the auger could operate again.

On the day of his accident, Kirby was loading seed into

the intake opening on the auger using the tractor equipped

with a front-end loader. Kirby noticed that the auger

had clogged and left the loading tractor to turn off the

power. He then cleared the clog by sliding a metal sleeve

covering an inspection hole on the auger down the auger

tube to expose the hole. Kirby reached into the auger

and pulled out a piece of cheesecloth. Kirby did not have

to remove the guards over this part of the drive shaft to

clear the clog on this day, however. Empire Seed had

removed the guards earlier and they were missing at the

time of the accident.

Once Kirby cleared the clog, he restarted the power

drive tractor. After he had determined that the auger

was once again running normally, Kirby got off the power

drive tractor and left it running. Because the auger was

operating and the inspection hole was not covered by its

sleeve, seed was coming out of this hole. Kirby approached

the auger intending to slide the sleeve or cover back up

the auger to cover the inspection hole. As he reached

over the top of the unguarded, rotating drift shaft, with

the inspection hole open, Kirby’s shirt sleeve was caught

and his left arm was drawn into the drive shaft and

injured.

4

Kirby admitted repeatedly, as did his experts, that the

accident would not have happened if the guards furnished

with the auger had not been removed.

B. Proceedings in the Lower Courts

In December of 1987, Kirby filed a complaint against

Lear Siegler in federal court in Missouri claiming under

both negligence and strict liability theories. Kirby claimed

that Lear Siegler had defectively designed its auger in

a variety of ways and that it failed to warn of these

defects. Kirby also sought punitive damages.

After substantial discovery, Lear Siegler moved for

summary judgment. Lear Siegler contended that under

clear Missouri law a manufacturer has no liability when

a purchaser modifies a safe product and that modification

makes the product unsafe. See Gomez v. Clark Equip-

ment Company, 743 S.W.2d 429 (Mo. App. 1987). The

manufacturer is absolved even when the modification is

foreseeable. 7d. at 432. As discussed fully below, the

trial judge denied the summary judgment motion (App.

C, infra, 1la-15a), concluding that the three Missouri

appellate judges in Gomez had incorrectly interpreted

Missouri law regarding modification.

The case then went to trial solely on the issue of strict

liability for design defect and failure to warn, and the

jury returned a verdict of $500,000. The trial judge sub-

sequently denied Lear Siegier’s motion for judgment not-

withstanding the verdict and alternative motion for a

new trial. The federal judge again ruled that the Mis-

souri appellate judges had incorrectly interpreted Mis-

souri law. App. B, infra, at 6a-8a.

Lear Siegler appealed the case to the Eighth Circuit.

That court affirmed the trial judge’s rulings by unpub-

lished per curiam order. App. A, infra, at la-2a.

5

REASONS FOR GRANTING WRIT

The concept of “our federalism” represents a delicate

balancing of legitimate state and federal interests.

Younger v. Harris, 401 U.S. 37, 44 (1971). The federal

courts here have failed that balancing miserably.- A sin-

gle federal trial judge in the court belew ruled that a

panel of three Missouri appellate judges, which decided

the dispositive Missouri decision, simply did not under-

stand and therefore misinterpreted and misapplied Mis-

souri law. He therefore refused to follow the only Mis-

souri law on point. The Eighth Circuit affirmed the trial

court without explanation or opinion. The Eighth Circuit

decision is therefore directly contrary to the most recent

pronouncement of Missouri law by a Missouri appellate

court.

The affront to principles of federalism is obvious. Fed-

eral courts are required to follow decisions of state ap-

pellate courts. Without more, this Court has ample

ground to review this decision. But the practical conse-

quences are likewise dramatic. A product manufacturer

sued in Missouri state court has a complete defense if a

consumer modifies a product and later suffers an injury.

The same manufacturer in federal court has no such

defense. This erroneous ruling will lead to widespread

forum shopping by plaintiffs who can satisfy diversity

jurisdiction. The very existence of this split in authority

demands intervention by this Court.

It is the primary responsibility of state courts, not the

federal courts, to construe and apply state statutes and

common law. The express refusal of a federal court to

follow state law as announced by a state appellate court

has long been grounds for review of the federal deci-

sion. See, e.g., Six Companies v. Highway District, 311

U.S. 180 (1940); Stoner v. New York Life Ins. Co., 311

U.S. 464, 467 (1940). Indeed, in certain instances the

Court has acted summarily to preserve the integrity of

these principles of federalism announced in Erie R. Co.

6

v. Tompkins, 304 U.S. 64 (1938). See, eg., Day &

Zimmermann, Inc. v. Challoner, 423 U.S. 3 (1975);

Gibson v. Phillips Petroleum Co., 352 U.S. 874 (1956).

The instant case deserves similar treatment. The deci-

sion of the court of appeals is so plainly wrong that it

should not be allowed to stand, and summary reversal is

justified. See, e.g., Freeport McMoRAN, Inc. v. K.N.

Energy, Inc., 111 S.Ct. 858 (1991).

I. THE COURT OF APPEALS PLAINLY VIOLATED

THE FUNDAMENTAL PRINCIPLES ESTAB-

LISHED BY THIS COURT FOR DETERMINING

STATE LAW

A. The Court of Appeals Ignored Controlling State

Court Decisions

This Court ruled in Erie that federal courts must fol-

low state substantive law in cases in which state law is

the source of the cause of action. The Erie principle

“expresse[s] a policy that touches vitally the proper dis-

tribution of judicial power between state and federal

courts” that is “so important to our federalism.” Guar-

anty Trust Co. v. York, 326 U.S. 99, 109-10 (1945).

Its purpose is to ensure that the state and federal courts

in a state apply the same substantive law irrespective of

the happenstance of federal jurisdiction. Such even-

handed justice discourages forum shopping and avoids

unfair discrimination between state and federal litigants.

See Hanna v. Plumer, 380 U.S. 460, 468 (1965) (“the

twin aims of the Erie rule... [are] discouragement of

forum-shopping and avoidance of inequitable administra-

tion of the laws”). “The Erie rule remains a vital ex-

pression of the federal system and the concomitant in-

tegrity of the separate States.” Ferens v. John Deere

Co., 110 S. Ct. 1274, 1280 (1990).

The duties of federalism are not limited to state su-

preme courts. A federal judge must follow and apply the

decision of state intermediate appellate courts just like

7

state supreme courts. The decision of an intermediate

state appellate court “ ‘is not to be disregarded by a fed-

eral court unless it is convinced by other persuasive data

that the highest court of the state would decide other-

wise.’” Hicks v. Feiock, 485 U.S. 624, 630 n.38 (1988),

quoting West v. A.T. & T. Co., 311 U.S. 223, 237-38

(1940). It is

“the duty of the federal courts, where the state law

supplies the rule of decision, to ascertain and apply

that law even though it has not been expounded by

the highest court of the State. An intermediate state

court in declaring and applying the state law is

acting as an organ of the state and its determina-

tion, in the absence of more convincing evidence of

what the state law is, should be followed by a fed-

eral court in deciding a state question.”

Fidelity Trust Co. v. Field, 311 U.S. 169, 177-78 (1940).

The federal courts here flatly disregarded these guid-

ing principles laid down by this Court. The federal trial

judge reviewed Gomez v. Clark Equipment Co., 743

S.W.2d 429 (Mo. App. 1987), the most recent and clear-

est pronouncement by a Missouri appellate court of the

law applicable to this case, and unabashedly pronounced

that these three Missouri judges had simply misunder-

stood Missouri law.

Gomez is remarkably similar to the present case. In

Gomez the operator of a lift truck crushed several fingers

while maneuvering her truck. Her employer had modi-

fied the lift truck by removing the fuel tank supplied by

the manufacturer and adding a larger tank, which ob-

structed the vision of the driver. The Gomez court fully

reviewed Missouri law. It concluded that, in Missouri, if

the modification of a product makes a safe product unsafe

then the manufacturer is not liable, even if the modifica-

tion was foreseeable. 743 S.W.2d at 432. The modifica-

tion acts as a supervening cause which absolves the man-

ufacturer of any liability. Jd. The court made clear that

8

this issue is one for the court not the jury. The modifica-

tion bars plaintiffs’ claim as a matter of law. Gomez,

743 S.W.2d at 433; see also Hales v. Green Colonial, Inc.,

490 F.244615, 1021 (8th Cir. 1974).

The federal trial judge here openly acknowledged that

“Gomez is the last Missouri case which addresses this

particular issue |[modification].” App. B, infra, 6a.

The judge nonetheless refused to apply the law of Gomez

to the modification in this case. He examined the same

cases that the three Missouri appellate judges examined

in Gomez, and simply pronounced their analysis of Mis-

souri law wrong:

“While the Vanskike and Hales language is awk-

ward using a double or triple negative, this Court is

of the opinion that Vanskike and Hales hold that if

the modification is foreseeable and if it is foreseeable

that modification will make the product unsafe, then

the manufacturer is not relieved from liability.”

App. C, infra, 14a; see also App. B, infra, 6a.

A federal judge may not disregard a state appellate

decision unless there is “persuasive data that the highest

court of the state would decide otherwise.” Hicks, supra,

485 U.S. at 630 n.3. No such data is present here. In

the first place, the federal judge relied primarily on the

federal cases quoted above to reject Gomez, not on Mis-

souri law. Moreover, the three Missouri judges under-

stood that the federal cases used confusing language.

Indeed, the Missouri judges in Gomez reviewed and dis-

tinguished these very cases and their confusing language

based on Missouri law. Gomez, 743 S.W.2d at 432-33.’

1In Hales v. Green Colonial, Inc., 490 F.2d 1015, 1020 (8th Cir.

1974), retailers sold a heater for use with natural gas. The retailers

also supplied a conversion kit to modify the heater for use with LPG

fuel. Gomez concluded that the modification of the heater using the

kit was not a superseding cause, because modification for use with

LPG fuel was intended by the retailei. S.W.2d 743 at 432-33.

Likewise in Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th

Cir. 1981), cert. denied, 455 U.S. 1000 (1982), removal of retaining

9

The Missouri appellate judges relied on Missouri law

to determine how modification of a product is treated in

Missouri.” The interpretation of Missouri law by these

judges is sensible, rational and in complete keeping with

the public policy of Missouri. Many state courts and

legislatures have grown increasingly dissatisfied in recent

years with the explosion of products liability lawsuits

and the treatment of manufacturers as near insurers of

their products. The Missouri law set out in Gomez is

fully defensible. But Missouri judges are not required to

defend their interpretation of Missouri law to federal

judges. A single federal judge cannot simply overrule

and reject the reasoned analysis of Missouri law by three

Missouri judges. That is exactly what happened here.*

And by rejecting Missouri law, the federal judge denied

Lear Siegler any access to its best defense under Mis-

souri law. Federalism demands more.

rings from a railroad car was not a superseding cause where there

was evidence that the hitch was completely defective so that it could

not hold the rings at all. Gomez, 743 S.W.2d at 443.

2 See Gomez, 743 S.W.2d at 432-33 (discussion of Jarrell v. Fort

Worth Steel & Manufacturing Co., 666 S.W.2d 828, 835 (Mo. App.

1984), and Duke v. Gulf & Western Manufacturing Co., 660 S.W.2d

404, 414 (Mo. App. 1983) ).

3 See, e.g., 76 A.B.A. Journal 35 (Mar. 1990) (discussing the

marked “decline in judicial receptivity to products cases’); 39

Defense L. J. 279 (1990). Missouri recently reformed its tort laws

to lend additional protection to manufacturers. See L. 1987 H.B.

No. 700 § C, effective July 1, 1987.

4 The federal trial judge here suggested that Gomez was “contra-

dictory to” Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371

(Mo. bane 1986). App. B, infra, 6a-7a. As stated above, the

federal courts must follow state intermediate courts unless “persua-

sive data” compels a departure from that court. Hicks, supra, 485

U.S. at 630 n.3. The Nesselrode case did not deal with or discuss

the modification of a product by a consumer. Nor did it discuss the

concept of intervening cause. It provides no suport for the action

of the federal court here. Certainly the Gomez court had access to

the Nesselrode decision and the general statements of black letter

law for products actions it contains.

10

Only one Missouri case, Gomez, deals directly with the

issue of modification of a product by a consumer. Under

Gomez, Lear Siegler is entitled to a determination as a

matter of law on the issue of modification. Lear Siegler

manufactured a grain auger that left its factory with

safety shields intact. Kirby’s employer removed these

safety shields. Lear Siegler does not dispute that the

shields were designed to be removabie for various

maintenance. Nonetheless, if the modification of this

auger by removing critical safety shields was a super-

vening cause of injury, then Lear Siegler is not liable

under any theory. The federal court here refused to even

address the issue. Under its interpretation of Missouri

law, Lear Siegler could not raise such a defense because

the modification was foreseeable. App. C, infra, 14a

(“The evidence in this case indicates that defendant fore-

saw and even observed farm equipment being operated

with guard devices removed .. .”). Missouri law de-

mands no such thing. Lear Siegler is entitled to a deter-

mination on the issue of modification, just as if it were

in state court. A federal court has denied Lear Siegler

this right. The court of appeals ruling is clearly wrong

and should not be allowed to stand.

B. The Court of Appeals Error Raises Issues of Funda-

mental Importance

The decision of the federal courts here violates all of

the principles of Erie. It will lead to inequitable admin-

istration of laws—one law in state court, the opposite in

federal. It will encourage blatant forum shopping by

Missouri plaintiffs lucky enough to meet diversity re-

quirements. And perhaps most egregious, it will allow

a single federal judge to overrule three Missouri appellate

judges and their interpretation of Missouri law. This

Court should not condone such blatant disregard for our

federalism.

11

CONCLUSION

The petition for writ of certiorari should be granted,

and the judgment below should be summarily reversed or

the case should be set for briefing and argument.

March 18, 1991

Respectfully submitted,

WILLIAM H. Coby *

SHOOK, HARDY & BACON

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

(816) 474-6550

WENDELL E. KOERNER, JR.

BROWN, DOUGLAS AND BROWN

Pioneer Building

510 Francis Street

St. Joseph, Missouri 64501

(816) 232-7748

Counsel for Petitioner

* Counsel of Record

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1410

RANDALL SCOTT KIRBY,

Appellee,

Vv.

LEAR SIEGLER, INC.,

Appellant.

Appeal from the United States District Court

for the Western District of Missouri

Submitted: October 10, 1990

Filed:

Before LAY, Chief Judge, BRIGHT and TIMBERS,*

Senior Circuit Judges.

*The HONORABLE WILLIAM H. TIMBERS, Senior Circuit

Judge, United States Court of Appeals for the Second Circuit, sitting

by designation.

2a

PER CURIAM.

Lear Siegler, Inc., appeals from the district court’s'

order in this diversity case denying its motion for judg-

ment notwithstanding the verdict and alternative motion

for a new trial. We construe the appeal as taken from

the final iudgment on the jury verdict. See McGowne v.

Challenge-Cook Bros. Inc., 672 F.2d 652, 658-59 (8th

Cir. 1982). Randall Kirby injured his left arm while

using a grain auger manufactured by Lear Siegler, and

the jury awarded him $500,000 on a theory of strict

products liability. After carefully reviewing the record

and hearing oral argument, we find no prejudicial error

of law or fact. We affirm the judgment of the district

court on the basis of its well-reasoned opinion. See 8th

Cir. R. 47B.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit

1The Honorable Russell G. Clark, United States District Judge

for the Western District of Missouri.

38a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

No. 87-3657-CV-S-4

RANDALL SCOTT KIRBY,

Plaintiff,

VS.

LEAR SIEGLER, INC.,

Defendant.

ORDER

| Filed Feb. 6, 1990]

On December 14, 1989 following a jury verdict, judg-

ment was entered in favor of plaintiff and against de-

fendant in the amount of $500,000.00.

On December 26, 1989 defendant filed a motion for

judgment notwithstanding the verdict and an alternative

motion for a new trial. While defendant’s motions were

filed on the 12th day after entry of judgment, the mo-

tions were timely filed in that the 10th day was a Sun-

day and the 11th day was Christmas Day. (F.R.C.P. 6).

Very briefly the facts are as follows: Plaintiff was an

employee of Empire Seed Company and was employed at

Rogers, Arkansas. At the time of his injury he was

engaged in transporting fescue seed from his employer’s

warehouse in Monett, Missouri to Arkansas. At the time

of the injury he was using a grain auger manufactured

4a

by defendant to load a grain trailer from seed which

was stored in the employer’s warehouse. The auger was

powered by the power take off of a farm tractor. The

auger became clogged and a coupler broke. The plaintiff

stopped the auger, removed the covering from the clean

out hole and pulled a handful of cheesecloth out of the

auger. He then repaired the coupler using a bolt and

restarted the auger. After restarting the auger he

reached over the top of it and the unguarded rotating

shaft to attempt to slide the cover back over the clean

out hole. His shirtsleeve and arm were pulled into the

drive shaft inflicting severe injuries to his arm.

When the auger left the manufacturer there were

shields or guards over the drive shaft; however, at the

time of plaintiff’s injury, these guards had been removed.

The guards were attached to the auger by means of

screws and were removable. As a matter of fact at least

one guard had to be removed in order to grease the auger.

At the time of plaintiff’s injuries the guards which had

been installed by the manufacturer at the intake part of

the auger had been removed and a modified guard in-

stalled in its place. Also near the intake portion of the

auger the manufacturer had placed a warning that the

auger should not be used without the guards in place:

however, this warning had become obliterated and worn

away long before plaintiff was injured. There was no

warning on the guards themselves and particularly no

warning in the area where plaintiff was working when

his arm got caught by the drive shaft.

The case was submitted to the jury on a strict liability

products theory that the auger was defective and un-

reasonably dangerous when put to a reasonably antici-

pated use and that it was unreasonably dangerous due

to defendant’s failure to give an adequate warning of the

danger. A contributory fault instruction was given on

behalf of defendant. In the plaintiff’s verdict directing

instructions the jury was told that they could find in

5a

favor of plaintiff if the defect “directly caused or directly

contributed to cause damage to plaintiff.”

The standard for granting a directed verdict and a

judgment notwithstanding the verdict are the same un-

der federal law. A directed verdict should be granted

only when all the evidence points one way and is sus-

ceptible of no reasonable inference sustaining the position

of the nonmoving party. Dill v. Janklow, 828 F.2d 481

(8th Cir. 1987). The evidence must be viewed in the

light most favorable to the nonmoving party and the

Court must assume that all conflicts in the evidence were

resolved in plaintiff’s favor and must assume as proven

all facts which plaintiff’s evidence tended to prove. Sunk-

yong International, Inc. v. Anderson Land and -Invest-

ment Company, 828 F.2d 1245 (8th Cir. 1987). The

authority to grant a new trial however is confined al-

most entirely to the exercise of discretion on the part of

the trial court. Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193

(1980). A trial court may grant a new trial for the

reason that the jury verdict is against the weight of the

evidence. In making such a determination the trial court

may makes its own evaluation of the evidence, may

weigh the evidence, may disbelieve witnesses and grant

a new trial even where there is substantial evidence

supporting the jury verdict. Brown By Brown v. Syntex

Laboratories, Inc., 755 F.2d 668 (8th Cir. 1985): and

Ouachita National Bank v. Tasco Corporation, 686 F.2d

i291 (8th Cir. 1982),

In the motion for judgment notwithstanding the ver-

dict, defendant contends that there was not sufficient evi-

dence to make a submissible case that the auger at the

time of manufacture and sale was in a defective condi-

tion, unreasonably dangerous when put to a reasonably

anticipated use, whether such claim was based upon a

defect in design or on the inadequacy of the warning.

Defendant further contends that the evidence failed to

6a

disclose that the auger was being used in a manner rea-

sonably anticipated and that it had been modified by

removal of the drive shaft guards, enlargement of the

guard at the intake of the auger and by replacement

of roll pins and bolts in the drive shaft couplers.

There was sufficient evidence for the jury to find that

defendant knew that many farmers used the auger with

the drive shaft guards removed and also that it was a

common practice to replace the roll pins in the couplers

with bolts. There was also evidence that even with the

intake guard furnished with the auger by defendant it

had on occasion become clogged which necessitated the re-

moval of the drive shaft guards in order to unclog the

auger. The only real issue in defendant’s motion is

whether there had been such modification in the auger

to relieve the defendant of any liability. In this regard

defendant relies on the case of Gomez v. Clark Equip-

ment Co., 473 S.W.2d 429 (Mo. App. 1987) which in in-

terpreting language in Vanskike v. ACF Industries, Inc.,

665 F.2d 188, 195 (8th Cir. 1981) concluded that “‘if the

modification is foreseeable but the modification makes a

safe product unsafe, the manufacturer is not liable.”

Gomez is the last Missouri case which addresses this par-

ticular issue. However in denying defendant’s motion

for summary judgment in an order issued November 2,

1989, this Court ruled that the Gomez court misinter-

preted the Vanskike language. In Vanskike it was

stated: “Subsequent changes or alterations in the prod-

uct do not relieve the manufacturer of strict liability if

the changes were foreseeable and the changes did not un-

foreseeably render the product unsafe.” Jd. at 195.

A correct interpretation of that language would be that

the manufacturer is not relieved from liability if the

modification is foreseeable and if it could have been fore-

seen that such modification would create a hazard. In

this Court’s opinion the Gomez statement of Missouri

law is inconsistent with and contradictory to the law as

7a

expressed in Nesselrode v. Executive Beechcraft, Inc., 707

S.W.2d 371 (Mo. bane 1986) where the court stated that

the concept of reasonably anticipated use includes misuse

and abnormal use which is objectively foreseeable. The

Nesselrode court also stated that underneath the cun-

ceptual umbrella of proximate cause can be found the

concepts of misuse, abnormal use, reasonably anticipated

use, and contributory fault. The court concluded that the

manufacturer of the actuators could have reasonably an-

ticipated that Executive would make an abnormal use

of the actuators.

In Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392

(Mo. bane 1987) the court stated that a product may be

unreasonably dangerous and defective even though it

would not have caused injury when used properly if the

actual use is one reasonably anticipated by the manu-

facturer.

Without belaboring the issue as to whether a manu-

facturer is relieved from liability if the modification

makes a safe product unsafe, it is the opinion of the

Court that defendant is not entitled to a judgment not-

withstanding the verdict. The drive shaft guards were

designed so that they could be removed and in certain

circumstances had to be removed. Therefore, in this re-

gard there was no modification in the design of the

guards. Since the guards were designed to be removed,

the mere failure to replace them upon removal does not

constitute such a modification as to relieve the manufac-

turer of liability. The same can be said for substitution

of bolts for roll pins in the couplers.

The only warning placed on the auger by the manu-

facturer to not use it without the drive shaft guards in

place was located near the intake section of the auger.

This was several feet from the point where plaintiff suf-

fered his injury. In addition this warning had been

worn away or completely obliterated long before plain-

tiff’s injury. The place where the injury occurred was

8a

at a point where the manufacturer knew that it would

be most likely required that a guard would be removed

in order to unclog the machine, grease the drive shaft

or to replace coupler pins. It was clearly a jury issue

as to whether failure to place a warning in this specific

area rendered the product unreasonably dangerous. The

auger was being used to load grain which was the very

use for which it was manufactured and thus it was an

anticipated use. In addition there was evidence that de-

fendant knew that augers were used with the guards re-

moved and also knew that bolts were frequently sub-

stiuted for roll pins. Defendant’s motion for judgment

notwithstanding the verdict will be denied.

In the alternative to its motion for judgment notwith-

standing the verdict, defendant has moved for a new

trial. It set forth numerous issues for which it claims

a new trial would be appropriate. It alleges that there

was insufficient evidence for the submission of Instruc-

tion No. 5, plaintiff’s verdict directing instruction. The

Court has addressed this issue in denying defendant’s

motion for judgment notwithstanding the verdict and

will not address it further. The defendant also alleges

that there was insufficient evidence to submit Instruc-

tion No. 7, plaintiff’s verdict directing instruction, on the

issue of inadequate warning. The basis for this instruc-

tion is that the danger confronting plaintiff was open

and obvious and therefore defendant had no duty to

warn.

In a products liability case plaintiff’s contributory neg-

ligence is not an issue. Ponte v. Harley Davidson Motor

Co., 732 S.W.2d 561 (Mo. bane 1987). For contributory

fault to be a defense it must be shown that the user

discovered the defect and was aware of the danger but

nevertheless proceeded unreasonably to make use of the

product and was injured by it. White v. Thompsen Con-

crete Pump Company, 747 S.W.2d 655 (Mo. App. 1988).

Defendant relies on Haines v. Powermatic Houdaille, Inc.,

aici)

9a

661 F.2d 94 (8th Cir. 1981) as support for its position.

That case merely holds that it was not error for the

trial court to give a contributory fault instruction. One

was given in this case. The issue was one for the jury

which was decided adversely to defendant.

Defendant also claims that it is entitled to a new trial

as a result of the Court not admitting the admission by

plaintiff made to his employer Royal Carnes that the ac-

cident was his fault. At the time the statement was made

the evidence discloses that plaintiff was under heavy se-

dation and was in severe pain. It was not a statement

concerning a fact but at most was a conclusion. Ob-

viously the plaintiff did not know the law concerning

strict liability. He may have felt that he was contribu-

torily negligent which would not be a defense.

Defendant also alleges that it is entitled to a new trial

because of the admission of the testimony of plaintiff’s

economic expert Larry G. Cox. The testimony of Mr.

Cox set forth the average earnings of a high school grad-

uate and it was not restricted by the work history of

plaintiff; however, it is clear that the jury did rely upon

Mr. Cox’s testimony in returning his verdict. Any error

in permitting the testimony of Mr. Cox was at the worst,

harmless error.

Defendant also contends that it is entitled to a new

trial because of the admission of evidence concerning

prior accidents. These accidents involved an unguarded

rotating shaft which was the hazard presented in the in-

stant case. In addition this evidence was admissible to

show that defendant knew that such machines were being

operated by users without the benefit of a guard.

Defendant also buses its motion on the admission of

opinion testimony by experts concerning the inadequacy

of warnings, foreseeability, unreasonable danger and de-

fectiveness on the basis that such testimony invades the

province of the jury. Under Fed.R.Evid. 704(a) such

10a

testimony is not objectionable on the basis that it invades

the ultimate issue to be decided by the trier of fact.

Defendant also alleges that it is entitled to a new trial

because of the admission concerning designs and warn-

ings offered by another manufacturer, Mayrath, some

ten years after the auger in issue was manufactured.

The designs and warnings incorporated in Mayrath’s

product were well known in the engineering field prior

to the manufacture of the auger in this case. This tes-

timony was helpful to the jury in determining whether

the product in question was defective and whether there

was an adequate warning.

Plaintiff testified that while he knew he should not

touch the rotating_shaft, he was not aware that there

was a danger of a protrusion on the shaft catching his

shirt and thus wrapping his arm around the rotating

shaft. He also testified that had there been a warning

he would have abided by it.

As stated above in denying the defendant’s motion for

judgment notwithstanding the verdict, the only warning

placed on the equipment was completely obliterated long

before plaintiff’s injury. These issues were properly sub-

mitted to the jury and found by the jury against de-

fendant.

It is

ORDERED that defendant’s motion for judgment not-

withstanding the verdict is denied; and it is further

ORDERED that defendant’s alternative motion for a

new trial is denied.

/s/ Russell G. Clark

RUSSELL G. CLARK

Judge

United States District Court

Date: February 6, 1990

lla

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

No. 87-3657-CV-S-4

RANDALL ScoTT KIRBY,

Plaintiff,

VS.

LEAR SIEGLER, INC.,

Defendant.

ORDER

[Filed Nov. 2, 1989]

Defendant has moved for summary judgment on Count

I of plaintiff’s complaint. Count I alleges strict liability

by reason of defendant’s manufacture of a defective

grain auger.

There are well settled principles in ruling a motion for

summary judgment. Summary judgment is appropriate

when there is no genuine issue of material fact present

in the case and judgment should be awarded to the party

seeking the motion as a matter of law. Percival v. Gen-

eral Motors Corporation, 539 F.2d 1126, 1129 (8th Cir.

1976). However, because summary judgment remedy is

drastic, it should not be granted unless the moving party

has established the right to a judgment with such clarity

that there is no room for controversy. Jewson v. Mayo

Clinic, 691 F.2d 405, 408 (8th Cir. 1982). In addition,

the party opposing summary judgment motions may not

rest upon the allegations in their pleadings. The non-

12a

movant must resist the motion by setting forth specific

facts showing there is a genuine issue of fact for trial.

Fed.R.Civ.P. 56(e); Burst v. Adolph Coors Company, |

650 F.2d 930, 932 (8th Cir. 1981) In Green v. United

States Dept. of Labor, 775 F.2d 964, 973 (8th Cir. 1985),

the Court stated that such a motion is to be viewed in the

light most favorable to the opposing party who also must

receive the benefit of all reasonable inferences obtainable

from the material before the Court. In Butler v. MFA

Life Ins. Co., 591 F.2d 448 (8th Cir. 1979), the Court

held that summary judgment should not be granted un-

less the moving party has established his right to judg-

ment with such clarity that no room for controversy re-

mains and has demonstrated that the nonmoving party is

not entitled to recover under any discernible circum-

stances.

In ruling a motion for summary judgment, the Court

does not decide material factual issues, rather it deter-

mines whether or not they exist. Columbia Union Na-

tional Bank v. Hartford Accident and Indemnity Co.,

669 F.2d 1210 (8th Cir. 1982). Summary procedures

are appropriate where the issues for resolution are pri-

marily legal rather than factual. Lomar Wholesale Gro-

cery, Inc. Vv. Dieter’s Gourmet Foods, Inc., 824 F.2d 582,

585 (8th Cir. 1987), cert. denied, 108 S.Ct. 707 (1988).

Issues of fact must be material to a resolution of the

dispute between the parties; where the only disputed

issues of fact are immaterial to the resolution of the legal

issues, summary judgment is appropirate. Lomar, 824

F.2d at 585.

With these standards in mind, the Court will proceed

to consider defendant’s motion for summary judgment.

Very briefly, the facts are as follows: Plaintiff was

an employee of Empire Seed Company and was employed

at Rogers, Arkansas. At the time of his injury he was

engaged in transportation of fescue seed from his em-

ployer’s warehouse in Monett, Missouri to Rogers, Ar-

a eeaieianineernmemmmmiiaiiiiae

13a

kansas. At the time of his injury he was using the grain

auger manufactured by defendant to load a grain trailer.

The auger became clogged and a coupler broke. Plaintiff

stopped the auger, removed the cover from the clean-out

hole and pulled a handfull of cheese cloth out of the auger.

He then repaired the coupler using a bolt and restarted

the auger. After restarting the auger he reached over

the top of the auger and the unguarded, rotating drive

shaft to attempt to slide the cover back over the clean-out

hole. His shirt sleeve and arm were pulled into the drive

shaft, injuring him. When the auger left the manu-

facturer there were shields or guards over the drive

shaft; however, at the time of his injury, these guards

had been removed. Defendant contends that by removal

_ of the guards there was such a material change in the

auger as manutactured by it to relieve it of liability as

a matter of law.

The parties agree that the substanitve law of Missouri

applies in this case. They also agree that the essential

elements of a strict liability case are as follows: (1) the

defendant sold or manufactured the grain auger in the

course of its business; (2) the grain auger was then in

a defective condition unreasonably dangerous when put

to a reasonably expected use; (3) the grain auger was

used in the manner reasonably anticipated; and (4) plain-

tiff was damaged as a result of the defective condition

that existed when the grain auger was sold.

In support of its motion for summary judgment de-

fendant relies on only one Missouri case: Gomez v. Clark

Equipment Co., 743 S.W.2d 429 (Mo. App. 1987). In

Vanskike v. AFC Industries, Inc., 665 F.2d 188 (8th Cir.

1981) the court stated:

[S]ubsequent changes or alterations in the product

do not relieve the manufacturer of strict liability

if the changes were foreseeable and the changes did

not unforeseeably render the product unsafe.

l4a

Substantially the same language appears in Hales Vv.

Green Colonial, Inc., 490 F.2d 1015, 1020 (8th Cir. 1974).

Gomez interprets the Vanskike and Hales language to

hold:

If a modification is foreseeable but the modifications

make a safe product unsafe the manufacturer is not

liable.

While the Vanskike and Hales language is awkward using

a double or triple negative, this Court is of the opinion

that Vanskike and Hales hold that if the modification is

foreseeable and if it is foreseeable that the modification

will make the product unsafe, then the manufacturer is

not relieved from liability.

The evidence in this case indicates that the defendant

foresaw and even observed farm equipment being oper-

ated with guard devices removed and thus could foresee

that the auger which injured plaintiff would be used with

the guard shields removed. Since the guard shields were

removable, this Court is of the opinion that it becomes

a jury issue as to whether this constituted a material

modification of the auger. A jury might very well deter-

mine that operation of the auger without the shields was

nothing more than a misuse of the product. In Jarrell

v. Fort Worth Steel and Manu. Co., 666 S.W.2d 828

(Mo. App. 1984) the court held that where there is both

a design defect and a misuse of the product each of which

contributes to the accident, the misuse does not become

an intervening cause if the misuse was foreseeable. Plain-

tiff contends that the danger could have been eliminated

by various design changes in the product. It is a jury

issue as to whether failure to make one or more of these

possible changes rendered the product defective at the

time of its manufacture and its sale. There are genuine

issues of fact which are disputed in this case which make

granting defendant’s motion for summary judgment on

Count I inappropriate.

anemia

lda

It is

ORDERED that defendant’s motion fr summary judg-

ment on Count I of plaintiff’s complaint is denied.

/s/ Russell G. Clark

RUSSELL G. CLARK

District Judge

United States District Court

Dated: November 2, 1989

l6a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1410WM

RANDALL SCOTT KIRBY,

Appellee,

Vv.

LEAR SIEGLER, INC.,

Appellant.

Appeal from the United States District Court

for the Western District of Missouri

Appellant’s petition for rehearing has been considered

by the court and is denied.

December 13, 1990

Order Entered at the Direction of the Court:

/s/ Robert D. St. Vrain

Clerk

U.S. Court of Appeals

Eighth Circuit