Petition for Writ of Certiorari — Dresser Industries, Inc. v. Fahy

f* Supreme Court, US.

Sk Tay . iS

SPs bs, 44 FILLED

JOSEPH F. SPANREL aR,

CLERK

No. %

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

DRESSER INDUSTRIES, INC.,

Petitioner,

VS.

TERRENCE J. FAHY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSOURI

SHEPHERD, SANDBERG AND

PHOENIX, P.C.

JOHN C. SHEPHERD

GERALD D. Morris

One City Centre, Suite 1500

St. Louis, Missouri 63101

(314) 231-3332

Attorneys for Petitioner

St. Lours Law Printing Co., Ine., 13305 Manchester Road 63131 314-231-4477

QUESTION PRESENTED

Whether a state supreme court denies a defendant its due pro-

cess right to a meaningful hearing by issuing an opinion which

orders that judgment be entered for the plaintiff when that opi-

nion is based upon facts contrary to those presented at trial.

LIST OF PARTIES

The parties to this proceeding are petitioner, Dresser In-

dustries, Inc., and respondent, Terrence J. Fahy. In com-

pliance with Rule 28, petitioner attaches Appendix A as a list of

its parents, subsidiaries and/or affiliates.

TABLE OF CONTENTS

ee La ead aude ek doles 6.6e 6 60%

I GS

ee os aa aw ac Saaknceeuunss sess

ee Se oe eng aueecéeebesssa sees

Cn REERESE SPELT TERETE EORET CET

ee edb eeu ebecececsese

Reasons for Granting the Writ ............c.cecceees

ee ego Vek Ghadeeddeccau neues

Appendix:

Appendix A - List of parents, subsidiaries and/or

affiliates of Dresser Industries, Inc. .............

Appendix B - Text of Fahy v. Dresser Industries,

Inc., 740 S.W.2d 635 (Mo. banc 1987).......

Appendix C - Motion for Rehearing of Dresser

ee oss asec cé baeeseeeee sss

Appendix D - Letter from Clerk of Supreme Court

of Missouri indicating Motion for Rehearing Over-

ruled (formally reflected in Supreme Court of

Missouri opinion, Appendix B).................

Page

A-2

A-40

iV

TABLE OF AUTHORITIES

Page

American Surety Co. v. Baldwin, 287 U.S. 156 (1932) .. 6

Baltimore & Ohio R.R. Co. v. United States, 298 U.S.

RI PEE PRON A Amt ay SAD 6

Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673

PC. to abo GCE ae ka ee eee ee eS 7

Fahy v. Dresser Industries, Inc., 740 S.W.2d 635 (Mo.

NS ea Eb oe eee ais l

Goldberg v. Kelly, 397 U.S. 254 (1970) ............... 6

Pee . Pe, Be Be tc PP CUP cove vccckacaccaucs 6,7

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .. 6

Mullane v. Central Hanover Bank & Trust Co., 339

i EE es ewe aan pak seems 6

Wolff v. McDonnell, 418 U.S. 539 (1974). ............ 11

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1987

DRESSER INDUSTRIES, INC.,

Petitioner,

VS.

TERRENCE J. FAHY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSOURI

The Petitioner, Dresser Industries, Inc., respectfully prays

that a Writ of Certiorari issue to review the judgment and opi-

nion of the Supreme Court of Missouri entered in the above-

entitled proceeding on November 17, 1987.

OPINION BELOW

The opinion of the Supreme Court of Missouri is reported at

740 S.W.2d 635 (Mo. banc 1987) and is reprinted as Appendix

B.

JURISDICTION

This is a products liability action in which Respondent Fahy,

as plaintiff, is seeking damages for personal injuries he allegedly

sustained while using an asphalt roller manufactured by Peti-

tioner, Dresser Industries, Inc. The trial court entered judg-

ment on a jury verdict in the amount of $3,000,000 in favor of

Respondent and against Petitioner. Petitioner then appealed to

the Missouri Court of Appeals, and that court issued a

unanimous opinion which reversed the judgment of the trial

court.

The Supreme Court of Missouri subsequently accepted

transfer of the case, and, in an opinion issued on November 17,

1987, a divided court reversed the decision of the Missouri

Court of Appeals and ordered that the judgment on the jury

verdict be reinstated. See, Appendix B. Following the issuance

of that opinion, Petitioner filed a motion for rehearing in the

Supreme Court of Missouri, alleging, infer alia, that the deci-

sion by the Supreme Court of Missouri denied Petitioner's due

process rights under the fourteenth amendment to the United

States Constitution. See, Appendix C. The Supreme Court of

Missouri denied Petitioner’s motion for rehearing on December

15, 1987. See, Appendix D. This Petition is therefore timely fil-

ed.

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

§1257(3).

CONSTITUTIONAL PROVISION

Constitution of the United States

Amendment 14

Section |. Citizens of the United States.

All persons born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or immunities of

cnizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protec-

uuon of the laws.

STATEMENT OF THE CASE

This ts an action brought by Respondent, as plaintiff, seeking

damages for personal injuries he allegedly sustained while

operating an asphalt roller. That roller was manufactured in

1980 by a company later acquired by Petitioner Dresser In

dustries, Inc. (Dresser) and Dresser now stands in the position

of the ongimal manufacturer. The case was submitted under a

theory of strict lability in tort

The case was tried to a jury in the Circuit Court for the City

of St. Lours, Missourt, and on July 3, 1985, the jury returned a

verdict in the amount of $3,000,000 in favor of Respondent and

against Petitioner. The trial court denied Petitioner's timely fil

ed post-trial motions, and entered judgment upon the verdict

Petitioner appealed the decision to the Missouri Court of Ap

peals, kastern District. On appeal, Petitioner argued, infer alia,

that plaintiff had failed to make a case against Dresser in that

insufficient evidence was presented on a number of grounds

Many of the issues regarding the sufficiency of plaintiff's

evidence arose because there were no witnesses to the accident in

which plaintiff was injured and plaintiff himself cannot recall

the circumstances of the accident. Certain witnesses did place

the plaintiff in the area of the machine within minutes of the ac-

cident, but no one actually saw how the accident occurred. The

evidence did show, however, that plaintiff was run over by the

rollers of the machine, and that the machine was found some

distance from plaintiff, with its engine operating and propelling

it Slowly away from plaintiff.

There was also evidence that the roller had undergone a

number of changes since the time of its manufacture. The un-

disputed evidence revealed that:

the operator’s seat and guard rail had been removed and a too!

had been replaced with a more powerful engine, that the contro!

—

panels had been moved from the front of the operator’s posi-

tion to the exterior right side of the machine, that the operator's

steel platform had been cut away exposing the back roller, that

the automatic roller cleaning system was not working, and that

the emergency or hand brake once broken had not been

repaired. 740 S.W.2d at 647.

There was also evidence indicating that the directional lever

on the machine was so badly worn that the vibration of its new,

more powerful engine could cause it to iump from neutral into

gear. (R. 159-161). Furthermore, the iransmission of the

machine had been repaired by the installation of a new drive

gear and when the old engine had been removed and replaced, it

was disassembled from the transmission and clutch assembly.

(R. 142, 185).

Plaintiff's theory of the case was that the roller was in a

defective condition unreasonably dangerous in that it did not

have a ‘“‘deadman switch’’ and thus could operate if the driver

had left the operator’s position. - Plaintiff attempted to prove

that he had been atop the roller in the operator’s position and

had somehow fallen beneath the roller.

On appeal, Petitioner claimed that Respondent had failed to

present sufficient evidence to permit a finding that the lack of a

deadman switch on the machine was the proximate cause of

plaintiff’s injuries, and had also failed to prove that the

machine was in substantially the same condition at the time of

the incident as the time it was manufactured and sold. The

Missouri Court of Appeals reviewed the evidence presented at

trial and, in a unanimous opinion, reversed the judgment

entered by the trial court.

The case was then transferred to the Supreme Court of

Missouri for review. A divided court reversed the decision of

the Missouri Court of Appeals and reinstated the jury verdict

and judgment in favor of plaintiff. In addressing Petitioner’s

proximate cause argument, the court based its decision upon

_—_

=

testimony of plaintiff’s expert witness that a deadman switch

could have been designed to apply the brakes of the machine

and simultaneously return the roller’s directional lever to

neutral when the driver left the operating position. The court

also determined that, despite the modifications outlined above,

the machine was not in a substantially changed condition from

the time it had been manufactured. The court based this deter-

mination on its finding that, ‘‘. . . there is no indication that this

roller’s directional lever was modified in any way . . .’’ 740

S.W.2d at 640.

~

Dresser then filed a motion for rehearing in the Supreme

Court of Missouri, indicating, inter alia, that the majority opi-

nion of the Supreme Court of Missouri was based upon “‘facts”’

contrary to those in the record and thus deprived Dresser of its

due process rights to a meaningful hearing. On December 15,

1987, the Supreme Court of Missouri denied Dresser’s motion

for rehearing without elaborating the reasons therefor.

TTS

pee Ghee

REASONS FOR GRANTING THE WRIT

The Decision of the Supreme Court of Missouri which

ordered that judgment be entered against Petitioner was

based upon ‘‘facts’’ which were not contained in, and were

actually contrary to, the evidence presented at trial and

thus, the Supreme Court of Missouri rendered the trial in

this case a nullity and denied Petitioner its due process

rights to a meaningful hearing.

It is clear that the due process clauses of the fifth and four-

teenth amendments require, at a minimum, that deprivation of

life, liberty or property by adjudication be preceded by notice

and an opportunity for hearing appropriate to the nature of the

case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 313 (1949). Moreover, the hearing required cannot be a

futile exercise, but must be given, ‘‘. . . at a meaningful time and

in a meaningful manner.’’ Goldberg v. Kelly, 397 U.S. 254, 267

(1970) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

In determining whether the hearing given a litigant is mean-

ingful, this Court has stated on several occasions that a party

facing deprivation of a property interest by adjudication must

be given the right to present defenses and rebut evidence.

Goldberg, supra, 397 U.S. at 268 - 269; American Surety Co. v.

Baldwin, 287 U.S. 156, 168 (1932). Furthermore, parties are en-

titled to have the court render judgment based on evidence in

the record. See, Baltimore and Ohio R. R. Co. v. United States,

298 U.S. 349, 369 (1935) and cases cited therein.

This Court has, on a great number of occasions, granted cer-

tiorari in order to study judicial or quasi-judicial proceedings to

determine whether the requirements outlined above have been

met. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982) and cases cited therein. In fact, the very essence of pro-

cedural due process law has come about through decisions

rendered in this manner. More specifically, in Helis v. Ward,

308 U.S. 365, 370 (1939), this Court granted a writ of certiorari

Pag, See

to the Court of Appeals for the Fifth Circuit on the ground that,

‘* . . the Circuit Court of Appeals had decided the merits on

facts not contained in the record and on a theory which had

never been tried by the litigants.’’ Although the Court in Helis

determined that the findings of fact made by the appellate court

were supported by the record, the case clearly stands for the

proposition that this Court will review findings of ‘‘fact’’ made

by an appellate court which are contrary io the evidence at trial

to examine whether procedural due process requirements have

been met.

Petitioner does not claim that the trial, as originally held in

this action, was insufficient to meet the ‘‘meaningful hearing”’

requirement of the due process clause. Nor does Petitioner

assert that the procedure by which it appealed the trial court

decision to the Missouri Court of Appeals was insufficient. The

procedure followed by the Missouri Court of Appeals was pro-

per in that the appellate court determined whether plaintiff had

made a submissible case under Missouri law given the evidence

presented at trial. The court studied the evidence presented by

all parties during the trial and held that plaintiff was not entitled

to recover.

Petitioner states that its procedural due process rights to a

meaningful hearing were effectively denied, however, by the

Supreme Court of Missouri when that court reversed the

unanimous decision of the Missouri Court of Appeals using as

grounds therefore ‘‘facts’’ which were clearly not supported by

any evidence at trial.' -By going outside of the record and

‘‘creating’’ support for its decision, the Supreme Court of

Missouri has rendered the trial and appellate process given Peti-

tioner in this case a meaningless and futile exercise.

' These due process infirmities were properly and timely raised

before the Supreme Court of Missouri in Petitioner’s Motion for

Rehearing. Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673, 677-78

(1930).

_—

=

The majority opinion of the Supreme Court of Missouri

acknowledged that a plaintiff in a products liability action must

prove both that the alleged defect was the cause of the injury

and that the product, at the time of the accident, was in substan-

tially the same condition as when the product left the hands of

the manufacturer defendant. 740 S.W.2d at 638-639. The ma-

jority found that the plaintiff in this case had proven each of

these elements, but in so doing the Court relied on a set of

‘*facts’’ wholly foreign to the undisputed evidence presented at

trial.

Plaintiff’s theory at trial was that the roller was defective in

that it did not have a ‘‘deadman’’ switch which would have

stopped the movement of the roller when the driver left the

operating position, and thus have prevented the roller from in-

juring an operator who had fallen in its path. 740 S.W.2d at

638. In holding that the plaintiff had shown that the lack of a

deadman switch was the proximate cause of plaintiff’s injury,

the majority opinion relied on expert testimony that the dead-

man switch could have been designed to apply the brakes of the

roller at the same time it disengaged the drive of the machine.

740 S.W.2d at 639. The Court then reasoned that ‘‘. . . if this

roller had had a deadman switch which also applied the brakes,

it seems that the roller would have stopped in much less than ‘a

couple of feet’ after Fahy left the driver’s position and thus ac-

tivated the switch.’’ /d.

In making this determination the basis of its holding the ma-

jority opinion had to assume that: (1) the deadman’s switch

would apply the brakes; and, (2) the brakes would stop the

machine.

The undisputed evidence at trial, however, is that the brakes

on this 29 year old machine were not operable. The evidence

that the hand (emergency) brake, the on!/y brake on the

machine, had once been broken and not repaired is absolutely

undisputed. (R. 140-141, 172, 604-605). The majority opinion,

a

therefore, granted relief based upon the “‘fact’’ that engaging

the brake would have stopped the machine in this case, but that

is wholy contrary to the evidence. The evidence is that the

machine had no brakes. There is no evidence that the machine

had brakes at the time of the occurrence. The Court thus held

that Petitioner must give up $3,000,000 based upon ‘‘evidence’”’

not adduced at a hearing. This clearly violates Petitioner’s due

process rights to a meaningful hearing.

Moreover, the majority opinion recognized that a product

must be shown to be in substantially the same condition at the

time of the incident as when it left control of the defendant. The

court made the finding that the condition of this machine had

not been substantially changed. 740 S.W.2d at 640. The un-

disputed evidence at trial, however, revealed that,

** . . the operator’s seat and guard rail were removed and a

tool box substituted for the operator’s seat; the original

engine had been replaced with a more powerful engine,

which resulted in the control panels being moved from in

front of the operator to the exterior right side of the

machine; the operator’s steel platform floor had been cut

away, exposing the back rollers; the automatic roller clean-

ing system was not working, which required the operator

to perform pedal or manual roller cleaning either with the

operator’s foot on the roller while the rolier was moving or

with his hand while positioned on the ground; and, the

emergency brake once broken had not been repaired.’’

740 S.W.2d at 647.

In spite of these modifications, the court held that the

machine had not been ‘‘substantially’’ changed because, “‘. . .

there is no indication that this roller’s directional lever was

modified in any way... .”’ 740S.W.2d at 640. Contrary to this

finding by the Supreme Court of Missouri, however, the only

evidence presented at trial on this point was part of the

plaintiff’s case and was that the directional lever had been

changed.

ion i cl

Donald Thoele, the machine’s owner and _plaintiff’s

employer, testified that the directional lever mechanism on the

roller at the time of the accident was worn such that vibration of

the roller’s new, more powerful engine could cause it to move

from neutral into gear, despite the fact that the directional lever

would not change positions due to vibrations when he acquired

the machine several years before. (R. 120, 159-161). Thus,

there is clear and undisputed evidence of change or modifica-

tion to the directional lever.

Further, Thoele also testified that the transmission of the

machine had been repaired by installation of a new drive gear in

the 1960’s by an independent mechanic. (R. 185). Likewise,

when the new engine unit was installed some years before the ac-

cident, the old engine was removed and the engine was

disassembled from the transmission and clutch assembly. (R.

142). Common knowledge dictates that since the directional

lever is part of the power train system of the machine, it must

have been connected and disconnected during the repairs to the

transmission and disassembly of the engine from the clutch and

transmission. Not only does common knowledge dictate that

the forward and reverse lever would be directly linked to the

transmission and clutch assemblies, the instruction manual for

the machine which was introduced as evidence, leaves no doubt

about the question. (R. 751, Dresser’s Exhibit T). The manual

makes clear that the directional lever controls both forward and

reverse clutches which are enclosed in the transmission

assembly. Thus, it is clear that when the transmission was

overhauled and when the roller engine was changed there had to

be intervention in the lever/linkage/clutch system. There is

evidence in the case that the lever worked differently than when

manufactured. There is no evidence in the case that it was un-

changed from the time of manufacture.

Despite this uncontroverted evidence, contained mostly in

evidence introduced by plaintiff, the majority opinion held,

‘“*{(G]iven that there is no indication that this roller’s directional

dal RS

lever was modified in any way, Fahy’s evidence that the roller

could have been designed with a neutral safety gives rise to the

reasonable inference that the modifications to the roller did not

put it in a substantially changed condition.’’ 740S.W.2d at 640.

These ‘‘findings of fact,’’ which were the basis of the majori-

ty opinion, are completely contrary to the evidence presented at

trial. There was, in fact, no indication that the seller’s direc-

tional lever had not been modified. By ignoring, and in fact go-

ing beyond, the record of the evidence presented at trial, the

Supreme Court of Missouri has effectively denied Petitioner its

right to a meaningful hearing.

‘‘The touchstone of due process is protection of the in-

dividual against arbitrary action of government.’ Wolff v.

McDonnell, 418 U.S. 539, 558 (1974). The majority decision, if

left standing, will stand for the proposition that regardless of

the uncontroverted evidence presented at trial, an appellate

court in Missouri can create ‘‘facts’’ in order to impose liability

on a defendant in a products liability action. This ‘‘review’’ has

rendered the trial in this case a nullity and thus violated Peti-

tioner’s due process. rights. As was pointed out by one member

of the Supreme Court of Missouri in his dissenting opinion,

‘‘(t]his is but another of this Court’s transfers for the sole pur-

pose of changing the result.”’ 740 S.W.2d at 646.

Petitioner respectfully prays, therefore, that this Court issue a

Writ of Certiorari to review the decision of the Supreme Court

of Missouri.

A ee

a

CONCLUSION

For the reasons stated above, this Petition for Writ of Cer-

tiorari should be granted. The Supreme Court of Missouri

denied Petitioner’s due process right under the fourteenth

amendment to the United States Constitution by issuing its deci-

sion and mandate contrary to the facts presented at trial. Peti-

tioner, therefore, asks that this case be remanded to the

Supreme Court of Missouri for proper disposition.

Respectfully submitted,

SHEPHERD, SANDBERG AND

PHOENIX, P.C.

John C. Shepherd

Gerald D. Morris

One City Centre, Suite 1500

St. Louis, Missouri 63101

(314) 231-3332

Attorneys for Petitioner

CERTIFICATE OF SERVICE

1, Gerald D. Morris, a member of the bar of this Court,

hereby certify that on the 14th day of March, 1988, three copies

of the Petition for Writ of Certiorari in the above entitled case

were mailed, first class postage pre-paid to Mr. Douglas R.

Dowd, 314 N. Broadway, Suite 1910, St. Louis, Missouri 63102,

counsel for the Respondent herein. | further certify that all par-

ties required to be served have been served.

APPENDIX

APPENDIX A

Public Subsidiaries and Affiliates of Petitioner

iretool and Yost Superior Realty, Inc.

artil, Inc.

oad Machinery Company

J Titan Services Company

resser-Rand Company

I-I Drilling Fluids Company

resser-Cullen Venture

/estern Atlas International, Inc.

waco Geolograph Company

aycee Bentonite Partnership

21 International Corporation

oo

APPENDIX B

Terrence J. FAHY,

Plaintiff-Respondent,

v.

DRESSER INDUSTRIES, INC., et al.,

Defendants-Appellants.

No. 69287.

Supreme Court of Missouri,

En Banc.

Nov. i7, 1987.

Rehearing Denied Dec. 15, 1987.

Plaintiff brought suit for injuries suffered when he was run

over by asphalt roller. The Circuit Court of the City of St.

Louis, Brendan Ryan, J., rendered $3 million judgment in favor

of plaintiff, and successor manufacturer of roller appealed.

The Court of Appeals, Eastern District, reversed, and transfer

was granted. The Supreme Court, Billings, C.J., held that: (1)

evidence was sufficient to prove that plaintiff was in driver’s

position of asphalt roller immediately before accident and fell off

and was run over; (2) whether plaintiff’s injuries were prox-

imately caused by absence of deadman switch on asphalt roller

was for jury; (3) whether roller was in substantially the same

condition at time of accident as when it was sold and was being

used in manner reasonably anticipated at time of accident was

for jury; (4) trial court did not abuse its discretion in refusing to

declare mistrial after striking plaintiff's expert’s accident

reconstruction testimony; (5) plaintiff’s attorney’s improper

argument was invited; (6) trial court did not abuse its discretion

in denying new trial on basis of newly discovered evidence; and

(7) verdict was not excessive.

Affirmed.

— =

Robertson, J., concurred in result.

Blackmar, J., concurred in part and dissented in part and fil-

ed an opinion.

Donnelly and Weiliver, J.J., filed separate dissenting opi-

nions.

Gerald D. Morris, lan P. Cooper, David A. Boresi, St. Louis,

Mo., for defendants-appellants.

Douglas P. Dowd, St. Louis, Mo., for plaintiff-respondent.

BILLINGS, Chief Justice.

Defendant Dresser Industries, Inc. (Dresser) appeals from a

$3,000,000 jury verdict in this products liability action finding it

100% at fault for injuries suffered by plaintiff Terrence J. Fahy

when he was run over by an asphalt roller. The jury found in

favor of Dresser’s co-defendant, Machinery, Inc., an alleged

seller of the roller. The Missouri Court of Appeals, Eastern

District, concluded that Fahy had failed to prove that his in-

juries were caused by any defect in the roller and reversed and

entered judgment for Dresser. This Court granted transfer,

Mo. Const. art. V, sec. 10. Affirmed.

The asphalt roller at issue here was manufactured in 1950 by

Galion Iron Works and Manufacturing Co. Galion was later

acquired by Dresser and Dresser therefore now stand in the

position of original manufacturer. The roller is known as a 3 to

5 ton Tandem Roller. It has two rolls which are hollow and can

be filled with water to increase its weight, and therefore the

compression capability, of the machine. The total weight of the

roller unballasted, i.e., without water in the rolls, was in excess

of 7000 pounds.

After the roller had passed through an indeterminate number

of owners, County Asphalt and Paving Co. purchased it in 1964

or 1965. Hired to repave the drives of St. Trinity Cemetery in

—

South St. Louis County, County Asphalt had the roller at the

cemetery on August 23, 1979. The operator of the roller that

day was plaintiff Fahy. Fahy, aged nineteen, had been a regular

roller operator for County Asphalt for a year and a half. On

this day, Fahy’s job was to compress previously spread gravel

into hot oil with the Galion roller. At about two in the after-

noon, something went awry and Fahy was caught under and run

over by the roller. Although several co-workers saw Fahy

within a few minutes of the accident, no one witnessed it. Mir-

aculously, Fahy survived, albeit with catastrophic injuries.

Fahy brought this products liability suit against Dresser,

alleging that the roller had been designed defectively. There is

some controversy as to exactly what design defect Fahy was at-

tempting to prove at trial. Fahy states that he was trying to

show that the roller was defective because it was designed so

that that it was able to operate even when no one was in the

driver’s position. Dresser urges that Fahy tried to prove that the

defect was that the roller should have been designed with a

deadman switch. A deadman switch is a control which will shut

off the motive force of a machine in the event that the operator

leaves the driver’s position. The positions taken by Fahy and

Dresser are simply alternative verbal formulations of the same

defect. If the roller here had had a deadman switch it could not

have operated if no one was in the driver’s position. Any device

that would have prevented the roller from operating when no

one was in the driver’s position would have been, by definition,

a deadman switch.

[1] Dresser’s principal point on appeal is that Fahy failed to

make a submissible case. In order for a plaintiff to recover

under a products liability theory for an injury caused by an

allegedly defective product, he must establish each of the

following:

(1) defendant sold the product in the course of its

business;

—*

(2) the product was then in a defective condition

unreasonably dangerous when put to a reasonably an-

ticipated use;

(3) the product was used in a manner reasonably an-

ticipated;

(4) plaintiff was damaged as a direct result of such defec-

tive condition as existed when the product was sold.

MAI 3d 25.04. See also Nesselrode v. Executive Beechcraft,

Inc. 707 S.W.2d 371, 375-76 (Mo. banc 1986); Keener v. Dayton

Elec. Mfg. Co., 445 S.W.2d 362, 366 (Mo. 1969).

In reviewing a challenge to the submissibility of a case, the

evidence is to be considered in the light most favorable to plain-

tiff, plaintiff is to receive the benefit of all inferences reasonably

drawn from the evidence, and defendant’s evidence that does

not support plaintiff's case is to be disregarded. E.g., Hansome

v. Northwestern Cooperge Co., 679 S.W.2d 273, 274 (Mo. banc

1984).

Dresser argues Fahy failed to make a submissible case because

Fahy introduced insufficient evidence to prove that the absence

of a deadman switch was the proximate cause of Fahy’s injuries

and thereby failed to prove the fourth element of a products

liability case.

An expert witness for Fahy, Boulter Kelsey, testified that in

his opinion the roller was defective because it lacked a deadman

switch. He further testified that ‘‘the defect was the direct

cause”’ of the accident because, ‘‘had the roll stopped when Mr.

Fahy left the operating position, it would not have rolled over

him.’’ An assumption underlying these opinions by Kelsey was

that, immediately before the accident, Fahy had been in the

driver’s position on the roller and had then fallen from this posi-

tion into the path of the roller. Dresser asserts that these expert

opinions do not constitute sufficient evidence to submit the case

because Kelsey’s opinions were based on evidence insufficient to

aa aaa iain. |

site’ Sill ies

prove that Fahy had been in the driver’s position immediately

before the accident and had then fallen from this position.

[2, 3] It is true that an expert’s opinion must have a substan-

tial basis in facts actually established. E.g., Schears v. Missouri

Pac. R.R. Co., 355 S.W.2d 314, 321 (Mo. banc 1962).

However, the Court concludes the evidence, viewed most

favorably to Fahy, was sufficient to prove Fahy was in the

driver’s position immediately before the accident and he fell off

and was run over by the roller. Scott Thoele, a co-worker of

Fahy who was apparently the last person to see Fahy before the

accident, testified that he saw Fahy off the roller cleaning tar

and gravel from the roller wheels about five minutes before the

accident. After that, within a minute or two of the accident,

Scott saw Fahy back on the roller, operating it. This testimony

that Fahy was operating the roller within a minute or two of the

accident, coupled with the evidence that Fahy’s crushed body

was discovered lying behind the still moving roller, gives rise to

the reasonable inference that Fahy fell from the driver’s posi-

tion to the ground and was crushed by the roller.

The testimony of Kent Thoele does not nullify this reasonable

inference. Kent, also a co-worker of Fahy, testified that he saw

Fahy off the roller cleaning its wheels ‘‘no more than a minute

before the accident, I guess.”’ (Emphasis added.) Kent’s

testimony that he guessed Fahy was cleaning the roller no more

than a minute before the accident is not necessarily inconsistent

with Scott’s testimony he saw Fahy operating the roller within a

minute or two of the accident because both were only estimating

the time. Making allowances for the subjectiveness of these

time estimates, the jury could reasonably have believed Fahy

finished cleaning the roller wheels about a minute before the ac-

cident and then climbed back on the roller only to soon fall off

it.

Moreover, further evidence indicated that Fahy had finished

cleaning the roller wheels before the accident. Kent testified

a, ee

Fahy was using gasoline and a rag and maybe a thin metal scrap-

er to clean the tar and gravel from the roller wheels. Kent also

testified Fahy normally kept the can of gasoline near him while

he cleaned the wheels and would put the can to the side of the

road when he finished cleaning and was ready to start to work

again. The can of gasoline, the rag, and the scraper were all

discovered after the accident sitting by a tree off to the side of

the road. Lonnie Lucas, another co-worker of Fahy, testified

that he had talked with Fahy ‘‘a few minutes,’’ another subjec-

tive time estimate, before he became aware of the accident.

Fahy told Lucas he was finished cleaning the roller wheels and

ready to proceed with the paving job. The testimony as to

Fahy’s normal cleaning procedure and the testimony from

Lucas, when combined with Scott Thoele’s testimony, is

substantial evidence that Fahy finished cleaning the roller

wheels, got back on the roller, began to compress gravel into the

hot oil, and then, for whatever reason, fell into the path of the

roller.

[4] Dresser also contends that Kelsey’s expert opinion that

Fahys’ injuries were directly caused by the absence of a dead-

man switch is not supported by sufficient evidence that, even

had the roller been equipped with such a control, it would have

stopped its motion before rolling over Fahy. This contention is

without merit because Scott Thoele testified that he ran to the

roller after it had run over Fahy to turn it off and that the roller

rolled ‘‘a couple of feet’’ after he shut the engine off. There

was also testimony from Kelsey that a deadman switch could be

designed to apply the brakes at the same time it disengages the

drive of a machine. Thus, if this roller had had a deadman

switch which also applied the brakes, it seems that the roller

would have stopped in much less than ‘‘a couple of feet’’ after

Fahy left the driver’s position and thus activated the switch.

Viewing this evidence most favorably to Fahy, a jury would

reasonably infer that the roller would have stopped in the time it

would have taken Fahy to fall from the roller.

—_ =o

Because there was substantial evidence that Fahy was in the

driver’s position immediately before the accident and then fell

and that the roller would have come to a stop before rolling over

Fahy had it been equipped with a deadman switch, Kelsey’s ex-

pert opinion that the absence of a deadman switch was the

direct cause of Fahy’s injuries was based on substantial evidence

presented at the trial. Thus, Kelsey’s opinion provided suffi-

cient evidence to allow a jury to decide whether Fahy’s injuries

were proximately caused by a defect in the roller.

Dresser also argues that Fahy failed to provide sufficient

evidence that the absence of a deadman switch was the prox-

imate cause of his injuries in that, even if the roller had had such

a switch, Fahy’s evidence is not sufficient to prove that it would

not have been circumvented by modifications made to the roller

subsequent to its manufacture. The Court declines to require a

plaintiff to provide evidence that a safety device, which was not

incorporated into a machine, would not have been cir-

cumvented had it been so incorporated.

[5, 6] Dresser’s last argument with respect to the sufficiency

of the evidence on the issue of proximate cause is that the trial

court violated its constitutional due process rights by submitting

this case to the jury. This is bacause submission of this case

‘‘would allow a jury to decide the issue of liablity without any

legally fixed standards.’’ In order to preserve a constitutional

question for review, however, it must be presented to and pass-

ed upon by a lower court. E.g., Atkins v. Department of Bidg.,

Regs., 596 S.W.2d 426, 433 (Mo. 1980). Dresser first raised this

constitutional argument in its brief before this Court and

thereby failed to preserve it. Even had the argument been

preserved, it would have been meritless. Jury instructions, con-

forming to the law and approved by this Court, informed the

jury of the standards it was required to apply.

Dresser next argues that Fahy failed to make a submissible

case because there was no evidence that the roller was in substan-

==" yo

tially the same condition at the time of the accident as it was

when sold by Dresser. Because the fourth element of a products

liability case requires the plaintiff to prove that he was damaged

as a direct result of a defective condidtion of a product which

existed when the product was sold, see MAI 3d 25.04, Fahy did

have the burden to prove that the roller was in substantially the

same condition at the time of the accident as it was when sold by

Dresser. See Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d

362, 364 (Mo. 1969).

[7] The roller was modified in several respects after it was

purchased by Fahy’s employer, County Paving. The question

here, however, is whether any of the changes were substantial.

Fahy’s theory at trial was that the roller was defective because it

did not have a deadman switch. Fahy presented evidence that

the roller could have been designed with a directional lever, call-

ed a neutral safety, which would automatically return to neutral

when released. Given Fahy’s theory at trial, any modification

of the roller which would not have altered such a deadman

switch, had it been installed, would have been insubstantial. In

other words, if the roller had had a neutral safety which had not

been circumvented, Fahy’s accident would have been avoided

despite the other modifications to the roller. Given that there is

no indication that this roller’s directional lever was modified in

any way, Fahy’s evidence that the roller could have been design-

ed with a neutral safety gives rise to the reasonable inference

that the modifications to the roller did not put it in a substan-

tially changed condition.

Dresser’s final argument pertaining to the submissibility of

Fahy’s case is that Fahy presented no evidence that the roller

was being used in a manner reasonably anticipated at the time of

the accident. There is no merit to this argument. As discussed

above, Scott Thoele, apparently the last person to see Fahy

before the accident, testified that he saw Fahy using the roller to

compress gravel into hot oil within a minute or two of the acci-

dent. When the accident was discovered, Fahy’s mangled body

— A-10 —

was found lying in the middle of the driveway being paved. Im-

mediately after the accident tar and bits of gravel were clinging

to Fahy. This evidence, viewed most favorably to Fahy, gives

rise to the reasonable inference that Fahy was still using the

roller to compress gravel into hot oil at the time of the accident.

This was the job for which the roller was designed. Use of the

roller in a job for which it was designed is a reasonable an-

ticipated use. Consequently, there was sufficient evidence to

prove that the roller was being put to a reasonably anticipated

use at the time of the accident.

Dresser seeks to avoid this simple conclusion by arguing that,

as a matter of law, it could not have reasonably anticipated that

the roller would be used in its modified condition. There is

nothing unforeseeable, however, about an owner of a machine

making modifications to it and then continuing to use it after

doing so. See Love v. Deere and Co., 684 S.W.2d 70, 76

(Mo.App. 1985.)

Dresser’s second point relied on is that the trial court erred in

refusing to declare a mistrial after striking the accident

reconstruction testimonay of Fahy’s expert witness, Boulter

Kelsey. Kelsey was initially permitted to testify that in his opi-

nion the accident occurred after Fahy had finished cleaning the

roller wheels and had returned to the diver’s position of the

roller. While in this position, Kelsey continued, Fahy leaned

forward and over the right side of the roller, most likely to reach

the engine control panel located on the right side of engine cas-

ing. Fahy then lost his balance, Kelsey concluded, probably

because the roller jerked, and fell off the right side and into the

path of the rear roller wheel. Kelsey stated that Fahy could have

been run over by the roller after falling off the side of the roller

because, if the steering wheel was turned, the rear of the roller

would swing out to enable it to make the turn. Subsequent to

the admission of this reconstruction testimony, the trial court

determined that it should not have been admitted and instructed

the jury, orally and by written instruction, to disregard this

— A-ll —

evidence. The court refused to grant a mistrial at Dresser’s re-

quest.

The decision as to whether to grant a mistrial rests in the

sound discretion of the trial court and, absent a manifest abuse

of that discretion, an appellate court should not interfere. E.g.,

Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479, 485

(Mo. 1972). Additionally ‘‘the withdrawal and exclusion of er-

roneously admitted evidence [ordinarily] leaves no ground for

reversing the judgment on account of such admission because it

is, in the absence of exceptional circumstances, to be assumed

that the jury obeyed the trial court’s direction and considered

only legal evidence.’’ Pender v. Foeste, 329 S.W.2d 656, 662

(Mo. 1959).

[8] There are no exceptional circumstances here which lead to

the conclusion that the jury ignored the withdrawal instruction.

Kelsey’s testimony as to product defect and causation and his

reconstruction testimony were discrete enough so that the jury

would have had little difficulty in knowing which testimony it

could consider and which testimony was withdrawn. Ample ad-

missible evidence was available for the jury to reach the conclu-

sion it did. Besides, Kelsey’s reconstruction testimony added

nothing to Fahy’s case. As discussed above, in order for Fahy

to make his case he needed to prove that he had finished clean-

ing the roller wheels and was back in the driver’s position im-

mediately before the accident and then had fallen somehow and

been run over by the roller. The evidence from Scott and Kent

Thoele and Lonnie Lucas already gave rise to the reasonable in-

ference that this was what happened. The only thing added by

the reconstruction testimony was a hypothesis as to what caused

Fahy’s fall. Proof of the cause of the fall, however, was un-

necessary to Fahy’s case because, according to Kelsey’s

unstricken opinion, Fahy’s injuries would have resulted from a

fall from the roller regardless of the cause. The trial court did

not abuse its discretion in denying Dresser’s motion for mistrial.

— A-12 —

Dresser’s third assignment of error is that Fahy’s lawyer

misstated the law during closing argument when he asserted that

Dresser could have had Teledyne Wisconsin Motors and Allied

Construction Company included on the verdict form so that the

jury could assess a percentage of fault to them. Teledyne

Wisconsin had manufactured the replacement engine which

County Asphalt had placed in the roller. Allied Construction

had sold the replacement engine to County Asphalt. These two

companies had originally been defendants in this suit but they

reached settlements with Fahy before trial and were dismissed

from the suit with prejudice. Dresser argues that it could not

legally have forced the inclusion of these settling entities on the

verdict form.

[9-12] Misstatements of law are impermissible during closing

argument and a trial court has the duty, not discretion, to

restrain and purge such arguments. E.g., White v. Gallion, 532

S.W.2d 769, 771 (Mo.App. 1975). In Missouri, fault is only to

be apportioned among those at trial. E.g., Jensen v. ARA Ser-

vices, Inc., 736 S.W.2d 374, 377 (Mo. banc 1987). Therefore,

Fahy’s lawyer’s comment that Dresser could have included the

two settling entities on the verdict form for apportionment of

fault is a misstatement of law. However, a party is not entitled

to assign as error improper arguments or remarks made at the

trial by adverse counsel, where they were called forth by equally

improper arguments or remarks made by his own counsel.

Bobos v. Krey Packing Co., 323 Mo. 224, 232, 19 S.W.2d 630

633 (banc 1929); 5 C.J.S. Appeal and Error sec. 1508 (1958).

See also Hesse v. Wagner, 475 S.W.2d 55, 59 (Mo. 1971); Ed-

dings v. Keller, 400 S.W.2d 164, 171-72 (Mo. 1966).

[13] Here, Fahy’s lawyer’s improper argument was called

forth by improper argument made by Dresser’s lawyer. During

Dresser’s portion of closing argument the trial court ruled that

Teledyne Wisconsin and Allied Construction were not to be

referred to as having previously been defendants in the case. Im-

mediately thereafter, Dresser’s lawyer stated:

— A-13 —

I submit that the evidence was that at one time Teledyne

and Allied were party Defendants in this lawsuit. They’re

not in the lawsuit today. I’m not at liberty to explain why,

but again, I have no objection . . . if [Fahy’s lawyer] wants

to explain... .

This appears to have been a deliberate attempt by Dresser to im-

properly inject the settlement that Fahy had reached with

Teledyne Wisconsin and Allied Construction into the jury’s

deliberations, despite clear direction from the trial court that it

not do so. In was in retaliation to the improper argument by

Dresser’s lawyer that Fahy’s lawyer made his improper argu-

ment that Dresser could have had Teledyne Wisconsin and

Allied Construction included on the verdict form, but did not

because Dresser knew it was at fault. Dresser cannot now assign

error to this argument because it was invited by its own lawyer’s

improper argument.

Dresser’s fourth point on appeal is that it should have been

permitted to read into evidence allegations from petitions by

Fahy which had been superseded. In the portions of the

pleadings which Dresser desired to read Fahy alleged that

Teledyne Wisconsin and Allied Construction directly caused his

injuries because they manufactured and sold a replacement

engine for the roller which was defective and unreasonably

dangerous in that it was not equipped with a deadman switch.

Dresser asserts that these allegations were admissions against in-

terest by Fahy because they are admissions that some entity

other than Dresser was liable for his injuries.

[14-16] A superseded pleading is admissible against the party

in whose behalf it was orginally filed if it contains admissions or

statement of fact against the interest of such party. E.g., Carter

v. Matthey Laundry & Dry Cleaning Co., 350 S.W.2d 786, 791

(Mo. 1961). General allegations that simply state that plaintiff’s

damages were caused by some conduct on the part of defen-

dant, however, are legal conclusions, not admissions of fact

> ett

and, as such, are not admissible as admissions against interest.

Wors v. Glasgow Village Supermarket, Inc., 460 S.W.2d 583,

590 (Mo. 1970). The allegations Dresser sought to read into

evidence were general allegations of the type discussed in Wors.

Thus, they are not admissible as admissions against interest.

Dresser’s fifth point on appeal is that Fahy’s lawyer should

not have been permitted to read into evidence the deposition

testimony of Fahy’s expert witness, Dr. Frank Arnold, that it

was his opinion that the roller was defective because it was

capable of moving when no one was on it. Dresser contends

that this opinion is inadmissible because it lacked foundation in

that the question eliciting the opinion omitted facts showing

similarity in the roller’s condition at the time of manufacture

and at the time of the accident and showing that Fahy was using

the roller in a reasonably anticipated manner at the time of the

accident.

[17, 18] Any objection to deposition testimony is waived if

the ground of the objection is one which might have been ob-

viated if presented at the time the testimony is elicited. Rule

57.07(d)(3). Dresser did not object to the question at issue here

at the deposition. Had Dresser objected then, the ground for

the objection could have been obviated by reformulation of the

question to provide the proper foundation for Dr. Arnold’s opi-

nion. Dresser’s failure to object at the deposition resulted in a

waiver of the objection. See Schiles v. Schaefer, 710 S.W.2d

254, 262 (Mo.App. 1986). In any event, admission of Dr. Ar-

nold’s opinion did not prejudice Dresser because it was

cumulative of the testimony of Boulter Kelsey who had also

stated that the roller was defective in that it could operate

without anyone on it. See Mercantile Trust Co. v. Harper, 622

S.W.2d 345, 352 (Mo.App. 1981).

Dresser’s sixth point on appeal is that the trial court abused

its discretion in not granting a new trial on the basis of newly

discovered evidence. At the trial, Dennis Collins, an employee

— A-15 —

of the City of St. Louis, testified that he operated an eight to

twelve ton Ferguson asphalt roller for the city which had a direc-

tional lever, called a neutral safety, which automatically return-

ed to neutral and stopped the roller when it was released by the

operator’s hand. Seventy days after the entry of judgment in

this case, Dresser submitted a supplemental motion for a new

trial accompanied by an affidavit and sworn statement attesting

that the city operated an eight to twelve ton Ferguson asphalt

roller which did not have a neutral safety. Dresser asserts that

this new evidence that the city operated a Ferguson roller with a

neutral safety and generally refutes the notion that a neutral

safety is a practical feature on a roller.

{19, 20] The grant of a new trial on the basis of newly

discovered evidence is not favored and rests largely in the sound

discretion of the trial court. E.g., Desloge v. County of St.

Louis, 431 S.W.2d 126, 135 (Mo. 1968). Questions as to the

diligence of Dresser in procuring this evidence and the timeliness

of the motion for new trial aside, the trial court did not abuse its

discretion here in denying a new trial because the ‘‘new’’

evidence here is not material. The party seeking a new trial on

the basis of newly discovered evidence must show that the new

evidence is so material that it would probably produce a dif-

ferent result if a new trial were granted. E.g., Young v. St.

Louis Public Service Co., 326 S.W.2d 107, 111 (Mo. 1959).

Here, there is no indication that the Ferguson roller un-

covered by Dresser is the same Ferguson roller which is operated

by Dennis Collins. It is quite possible that the City of St. Louis

operates two eight to twelve ton Ferguson asphalt rollers. With-

out any indication that the two Ferguson rollers are, in reality,

the same machine, the evidence that the Ferguson roller un-

covered by Dresser has no neutral safety in no way contradicts

the testimony of Dennis Collins or refutes the practicality of a

neutral safety. Therefore, this evidence would have little effect

on a jury.

— A-16 —

Dresser’s final assignment of error is that the trial court

should have ordered a new trial because the $3,000,000 verdict

was So excessive as to be obviously the result of passion and pre-

judice on the part of the jury. Alternatively, Dresser argues that

the judgment against it should have been reduced by the amount

of the settlement between Fahy and Teledyne Wisconsin and

Allied Construction.

Fahy suffered grave injuries from a seven thousand pound

asphalt roller running over the full length of his body. Fahy’s

skull was fractured into multiple pieces. Brain tissue and spinal

fluid came out of his nose. His brain swelled, causing extremely

high brain pressure. Fahy’s facial bones were essentially

separated from his skull. His nose and jaw were broken and

some teeth were knocked out. He suffered a severely fractured

pelvis and a fracture of the lumbar spine. His urethra was

severed and blocked.

Fahy received extensive medical treatment for these and other

injuries. A hole was drilled in his skull so that the pressure on

his brain could be measured. He was given drugs to reduce this

brain pressure. His facial bones were wired back to his skull.

Doctors performed a tracheostomy, to help Fahy breath more

easily, and exploratory abdominal surgery. Pins were placed in

Fahy’s pelvis, which was itself placed in a sling, to stablize it so

that it could heal. He was in traction for months. Three times

doctors performed surgery to repair Fahy’s urethra. A prosthe-

sis was implanted in his penis to alleviate impotency caused by

the accident. For months, Fahy underwent extensive physical

therapy to learn to walk again.

Fahy has permanent brain damage. He is unemployable. He

suffers from irritability, depression, confusion, dizziness, head-

aches, backaches, pain and stiffening in his hips, insomnia, and

incontinence. He has no sense of smell, little appetite, a con-

stant ringing in his ears, double vision, and blurred vision. He

fatigues easily. He limps because his left leg is now about one

~ Al? —

inch shorter than his right leg due to a tilted pelvis. His face is

now somewhat asymmetrical. He may have future problems

with his urethra. Fahy used to lead an active life which included

such things as working as much as he could and playing on soft-

ball and soccer teams. He now cannot undertake any strenuous

activity and does little besides watch television and help his

mother around the house.

[21] The size of a verdict in and of itself does not indicate

that a verdict is a result of passion and prejudice, without some

additional showing that there was some trial incident or error

which would have engendered the passion or prejudice. E.g.,

Blevins v. Cushman Motors, 551 S.W.2d 602, 615 (Mo. banc

1977). Because Dresser makes no attempt to argue that some in-

cident at trial caused the jury to act out of passion or prejudice,

there is nothing to indicate that the $3,000,000 verdict here was

the result of such improper considerations. Given Fahy’s grave

injuries, the extensive medical procedures and therapy he has

had to undergo, and the effect the injuries have had on his life,

a $3,000,000 verdict is not excessive.

[22] This Court also rejects Dresser’s alternative argument

that the judgment should have been reduced by the amount of

the settlement between Fahy and Teledyne Wisconsin and Allied

Construction. This allegation of error was not preserved for ap-

pellate review because it was not presented to the trial court in a

motion for new trial. See Rule 78.07; McConnell v. Pic-Walsh

Freight Co., 432 S.W.2d 292, 301 (Mo. 1968).

RENDLEN and HIGGINS, JJ., concur.

ROBERTSON, J., concurs in result.

BLACKMAR, J., concurs in part and dissents in part in

separate opinion filed.

DONNELLY, J., dissents in separate opinion filed.

WELLIVER, J., dissents in separate opinion filed.

— A-18 —

BLACKMAR, Justice, concurring in part and dissenting in

part.

| am not fully satisfied that the error in initially admitting the

reconstruction testimony was cured by an instruction to

disregard. The trial court essentially allowed the plaintiff to

make a mid-trial summation on a vital issue. But I defer to the

trial court’s conclusion that mistrial was not necessary.

The prinicipal opinion convinces me that a submissible prod-

ucts liability case was made. Causation is demonstrated with

the requirements by Jackson v. Kruse Const. Co., 708 S.W.2d

664 (Mo. banc 1986).

I am not persuaded by the method of submission for design

defect cases suggested by Judge Donnelly is superior to the sub-

mission prescribed by MAI 25.04. In this connection I note the

comments by Professor Nicolas P. Terry, ‘‘Stricter Products

Liability,” 52 Mo.L.Rev. 1, 55 (Winter, 1987), who makes

some observations similar to Judge Donnelly’s. We place great

responsibility on the jury in products liability cases. All of the

factors suggested by Judge Donnelly may be presented to the

jury, in support of the position that there is no ‘‘defective con-

dition unreasonably dangerous.’’ In some jurisdictions the jury

is charged in greater detail. See 3 Devitt, Blackmar & Wolff,

Federal Jury Practice and Instructions, 4th Ed., Sections 82.03,

82.06, 82.08. The additional instructions lack legal precision

and may assume an argumentative tone. I see no reason to

make a change.

Just as the court of appeals does, however, I believe that the

trial court was required to reduce the judgment by reason of the

settlement with other defendants, in accordance with Section

$37.060, RSMo 1986. The error is not waived by failure to in-

clude it in a motion for new trial because it does not require a

new trial and could not be corrected by the granting of a new

trial. It is also the plainest of plain error.

1

— A-19 —

I would modify the judgment to allow the credit, and affirm

as modified.

DONNELLY, Justice, dissenting.

I respectfully dissent.

First, it defies common sense to permit the jury to conclude

that, had this machine been designed with a kill switch, such a

device would not have been removed sometime during the roller

machine’s thirty years of use.'

Second, in my view, this case points up the need to limit or

redirect the cause of action we first espoused in Blevins v.

Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977), else the

parameters of recovery for a defective product design will be

skewed too far to the protection of the user or consumer. Cf.

Holford, The Limits of Strict Liability for Product Design and

Manufacture, 52 Tex.L.Rev. 81 (1973) (general articulation of

policies undergirding limitations on product liablity). I con-

tinue to maintain ‘‘a court should strive for fairness ‘in assign-

ing rights and duties and in defining the appropriate division of

social advantages.’ ’’ Lippard v. Houdaille Indus., Inc., 715

' The appeals court noted the modifications to the roller:

The evidence revealed that the operator’s seat and guard rail

were removed and a tool box substituted for the operator’s seat;

the original engine had been replaced with a more powerful

engine, which resulted in the control panels being moved from in

front of the operator to the exterior right side of the machine;

the operator’s steel platform floor had been cut away, exposing

the back roller; the automatic cleaning system was not working

which required the operator to perform pedal or manual roller

cleaning either with the operator’s foot on the roller while the

roller was moving or with his hand while positioned on the

ground; and, the emergency brake once broken had not been

repaired.

740 S.W.2d 635, 637 (Mo.App. [E.D.], 1987).

ici aie

— A-20 —

S.W.2d 491, 500 (Mo. banc 1986) (Donnelly, J., dissenting)

(quoting J. Rawls, A Theory of Justice 10 (1971)). To this end,

I would give conceptual content to ‘‘unreasonably dangerous,”’

Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 378

(Mo. banc 1986) notwithstanding.’

Courts have grappled with the ‘‘unreasonably dangerous’”’

component in design defect cases because section 402A was

‘‘drafted at a time when manufacturing defects were perceived

as the primary sources of causes of action in strict liability.”’ P.

Sherman, Products Liablity for the General Practitioner * 716,

p. 222 (1981). Determining at what point a ‘‘reasonably

dangerous product design’’ becomes one ‘‘unreasonably

dangerous’’ also is complicated by abstract and speculative no-

tions of what could have been done to a product to make it ‘‘not

unreasonably dangerous.’’ For the majority, when that focal

point is reached is left to the fact-finder’s prerogative. This

renders irrelevant the question of whether the designer is /egally

responsible and merely invites, for all we know, an arbitrary

jury determination.

it must be remembered that to speak of reasonableness is to

speak of shades or degrees of status. The concept always has

suggested balancing rather than static observation. Cf. Hender-

son, Judicial Review of Manufacturers’ Conscious Design

Choices: The Limits of Adjudication, 73 Colum.L.Rev. 1531,

? That this may be a ‘‘ ‘hook in a transcendental lure that will snag

an appellate court,’ ’’ Nesselrode v. Executive Beechcraft, Inc., 707

S.W.2d at 378 (citations omitted), can be no worse than appellate

review without clear choice of standard, as this conjures a fishing ex-

cursion with rod and reel but no line.

— A-21 —

1540 (1973).’ Taken as true, I would adopt the following nonex-

clusive list of factors to apply in defective design case’ to deter-

mine whether, as a matter of law, a claimed danger in a

product’s design is unreasonable, emphasizing that the focus is

on the product itself:

1. What is the product’s utility to the general public?‘

2. What is the likelihood that the product, as designed, will

cause injury?*

3. Are there less unsafe alternative designs available?®

4. Can alternative designs be pursued-without impairing the

product’s usefulness, with respect to function, or feasibiiity,

reference cost?’

> Professor John Wade has observed that ‘‘a coherent analysis in

design defect cases requires a balancing process. An absolute test for

liability is not feasible unless one seeks to impose an insurer’s

liability.’”” Wade, On Product ‘‘Design Defects’? and Their Ac-

tionability, 33 Vand.L.Rev. 551, 570 (1980); compare Azzarello v.

Black Bros., Inc., 480 Pa. 547, 391 A.2d 1020 (1978) (manufacturer

the guarantor of product’s safety).

* Wade, On the Nature of Strict Tort Liability for Products, 44

Miss.L.J. 825, 837 (1973).

* This will be recognized as a derivative of Judge Learned Hand’s

much-cited formulation in Conway v. O’Brien, 111 F.2d 611, 623 (2d

Cir. 1940), rev’d on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85

L.Ed.2d 969 (1941), whether ‘‘the cost of injuries [a product] will

cause, discounted by the probability that they will occur, exceeds the

cost of eliminating the risky features.’’ Holford, The Limits of Strict

Liability for Product Design and Manufacture, 52 Tex.L.Rev. at 92

(citing Conway). See also Wade, supra note 4 at 837.

* See Wade, supra note 4, at 837.

"Id.

— A-22 —

5. Is the claimed danger open and obvious to the user of the

product, or is the dangerous character of the product widely

——___regarded by the general public?

6. If the product has been modified after leaving the

manufacturer, did such modifications increase the likelihood of

injury?°®

I would reverse and remand for consideration of the sub-

missibility question in light of the above.

WELLIVER, Justice, dissenting.

I respectfully dissent.

Our jurisdiction to transfer this case from the court of ap-

peals is set forth in Mo. Const. art V., § 10.

* Stevens v. Durbin-Durco, Inc., 377°S.W.2d 343, 347-48 (Mo.

1964); see also Wade, supra note 4, at 842-43; Restatement (Second)

of Torts § 402A comment i (1965). Circumstances underlying a cause

may point up ‘‘patent perils’’ inherent in a product or its use; these

circumstances need not amount to an assumption of risk to

be ‘‘material to the issue whether a product is ‘unreasonably

dangerous.’ ’’ McGowne v. Challenge-Cook Bros., Inc., 672 F.2d

652, 663 (8th Cir. 1982). This follows from the common sense notion

that one who purchases or uses a product presenting open and obvious

dangers doubtless has entertained whether the risk of harm is

outweighed by the benefits of use or purchase, and concluded that it

is. Delvaux v. Ford Motor Co., 764 F.2d 469, 474 (7th Cir. 1985).

* In my view, this suggested component is equally pertinent to the

‘‘unreasonably dangerous’’ determination as the ‘‘open and obvious”’

inquiry noted above. Modifications not amounting to ‘‘substantial

change’”’ as characterized in Restatement (Second) of Torts § 402A

comment p (1965) still may be relevant to the larger question. It

should be recognized that, while it may be fair to require the manufac-

turer to conduct ‘‘an open-ended evaluative task that requires him to

anticipate every injury that any use of his product might cause,’’

Holford, supra note 5 at 84, it is patently unfair to require him to an-

ticipate risk-incrementing alterations effected once the product has

been sold. If the subsequent modifications become an efficient cause

of injury, this should enter the equation.

— A-23 —

Cases pending in the court of appeals shall be transferred

to the supreme court . . . because of the general interest or

importance of a question involved in the case, or for the

purpose of reexamining the law, or pursuant to supreme

court rule.

Rule 83.03 provides:

In any case in which a motion for rehearing has been over-

ruled and an application for transfer under Rule 83.02 has

been denied, the case may be transferred by order of this

court on application of a party for any of the reasons

specified in Rule 83.02, or for the reason that the opinion

filed is contrary to a previous decision of an appellate

court of this state.

The reasons for transfer specified in Rule 83.02 are: ‘‘because

of the general interest or importance of a question involved in

the case, or for the purpose of reexamining the existing law.’’

In neither the Court of Appeals, Eastern District opinion nor

in the principal opinion does there appear grounds for transfer

of this case as specified in the Constitution and our Rules. This

is but another of this Court’s transfers for the sole purpose of

changing the result. The result reached by the principal opinion

with reference to this ‘‘cannibalized’’ roller with hardly a iden-

tifiable part remaining cannot do other than mark Missouri as

the favorite state in which to file lawsuits and the state to be

most avoided by those who would manufacture durable goods.

I adopt the opinion of the Eastern District Court of Appeals

as my dissenting opinion. The opinion authored by James A.

Pudlowski, Presiding Judge, and concurred in by Crandali, Jr.,

J. and Karohl, J., follows versatim.

‘*Respondent Terrence J. Fahy obtained a judgment in a jury

tried case in the Circuit Court of the City of St. Louis against

a! th

Dresser Industries, Inc. (Dresser), in a products liability action. '

On appeal, Dresser contends that the trial court erred: (1) in

submitting the case to the jury because there was no evidence

the alleged defect caused respondent’s injuries, in that there was

no evidence the product was in substantially the same condition

at the time of the accident (1979) as it was when sold by Dresser

(1950), and in that there was no evidence the product was being

used in a reasone“!y anticipated manner at the time of the acci-

dent: (2) by not declaring a mistrial after the reception of inad-

missible testimony; (3) by not declaring a mistrial after allegedly

improper closing argument by respondent; (4) by refusing to

allow appellant to read certain of respondent's abandoned

pleadings; (5) in allowing testimony which lacked foundation by

an expert witness; (6) by not granting a new trial on the basis of

newly discovered evidence; and (7) by not granting a new trial

based on an excessive verdict, or in the alternative, by not

reducing respondent’s award by the amount of the settlement

between respondent and dismissed co-defendants Teledyne

Wisconsin Motor and Allied Construction Equipment Com-

pany. We reverse because we find that appellant failed to make

4 submissible case on the element of causation. As a result, we

do not address the remaining issues.’

‘‘The evidence revealed that in 1950, Galion Iron Works and

Manufacturing Co., later acquired by Dresser, produced an

asphalt roller. Defendant Dresser stands in the position of

original manufacturer. Years later, respondent’s employer,

| The jury found for co-defendant Machinery, Inc., the alleged

seller of the defective asphalt roller.

> However, regarding the alternative contention to point relied on

#7, we invite the parties attention to RSMo 537.060 (1984 Supp.)

which states that settlement agreements shal/ reduce the claim by the

stipulated amount of the agreement. (Emphasis provided).

— A-25 —

County Asphalt, acquired it. While in the possession of County

Asphalt, the used roller underwent numerous changes. The

evidence revealed that the operator’s seat and guard rail were

removed and a tool box substituted for the operator’s seat; the

original engine had been replaced with a more powerful engine,

which resulted in the control panels being moved from in front

of the operator to the exterior right side of the machine; the

operator’s steel platform floor had been cut away, exposing the

back roller; the automatic roller cleaning system was not work-

ing, which required the operator to perform pedal or manual

roller cleaning either with the operator’s foot on the roller while

the roller was moving or with his hand while positioned on the

ground; and, the emergency brake once broken had not been

repaired.

“On August 23, 1979 respondent was the operator of this

cannibalized roller. His principal duty that day was to compress

previously spread pea gravel onto hot oil with the roller. Depo-

sitional testimony by plaintiff’s witness, Scott Thoele, respon-

dent’s co-worker, indicated that five minutes before the acci-

dent he saw respondent cleaning the roller and the last time he

saw the respondent was a minute or two before the accident,

running the roller up and down the straightway. He further

testified that respondent was standing while operating the roller.

The depositional testimony of plaintiff’s witness, Kent Thoele,

another co-worker was that the last time he saw the respondent

was not more than a minute before the accident and Fahy was

down on the ground cleaning the roller wheels and the engine

was not running. No one saw the accident actually occur, nor

does the plaintiff recall how it happened. Rather the various

witnesses testified as to seeing plaintiff lying injured on the

roadway, the roller proceeding away from the plaintiff at a

speed of three to five miles per hour approximately 150 feet

toward a grassy area. Two men chased after the roller. One of

them caught up to it and ‘hit the kill switch’ which stopped the

roller in a couple of feet.’ The plaintiff was severely injured.

AO6

“At trial, the plaintiff presented Boulter Kelsey the ubiqui-

(OUS expert witness. Plaintiff presented a very lengthy

hypothetical question to Kelsey to prove product defect(s) and

causation of the injury. The pertinent inquiry for this opinion

tollows:

(Attorney for Plaintiff): Assume, that the last men to

see Mr. Fahy (plaintiff) iestified that the roller’s engine

was otf and that the operator has to put the roller in gear

for the roller to move: . . . that the roller wouldn't run over

‘he operator if the operator had started it from the ground

inadvertently leaving the roller in gear with the direction

level engaged; . that the roll [sic] control panel was on

che mght side of the roller if the operator were in the

operating position facing the power roll [sic] and this

machine was manutactured, designed, and sold in such a

wav tn the event the operator left the operating position it

would centinue to roll under its own power without any

human agency; . . . the last time [Scott Thoele] saw [Fahy]

before he was discovered on the ground, Scott Thoele saw

him on the roller: . . . when {the engine} was shut off [the

roller} came to a stop in a couple of feet; . . . the roller

[was] traveling . . . at approximately a walking speed, or

some two miles per hour... . Assume further that the

roller was not designed with an emergency control device

that would effectuate its cessation in the event the operator

left the operating position.

(Attorney for plaintiff): Let me ask you the following

questions, if | may. Do you have an opinion, first, within

a reasonable degree of scientific certainty, as to whether or

not the roller I’ve described in this incident is defective and

unreasonably dangerous for its intended use?

(Attorney for Defendant): Before he answers, Your

Honor, in addition to the same objection | made previous-

ly, | would also like to point out that in my opimon Mr.

A-27 —

Dowd has assumed facts that are either not in evidence or

that he has mischaracterized facts that are into evidence.

Murther, he has omitted facts that are in evidence. For ex-

ample, he has omitted in his hypothetical question that the

plaintiff was seen one minute prior to the accident on the

ground cleaning the roller. That fact, along with other

facts is omitted, and I feel that makes the question im-

proper.

“The court took the objection under advisement as he did tO

previous objections made in limine and after piainuff’s attorneys

asked for another opinion of the expert, the court asked plain-

uilt’s attorney (o restate the question. Plaintiff's attorney again

posed this question, ‘‘Whether or not he had an opinion, with

reasonable degree of scientific certaintv, whether or nor thus

machine was defective and unreasonably dangerous as designed

and manufactured.

‘The witness replied that ‘‘the machine is defective ir design

cause it does not have a contro] which will Stop the

nachine in case the operator leaves the oe position

That is the defect in this machine.”’ He contin ued, after objec-

tion, that “‘the defect was a direct cause of the inc ie

Decause given al] facts that we have about the accident. had the

Toll [sic] stopped when Mr. Fahv left the Operating position, it

would not have rolled over him.”

“The expert witnes $ stated: [T]he machine was unsafe since

the control system did not incorporate a deadman contro! such

‘hal ihe machine would be stopped if the operator. for whatever

reason, was incapable of being present on the machine.”’ Keises

expiained the workings of various deadman svsiems. One

sysiem was a foot treadle that the operator would be required to

Noid Gown in order to run the machine. Once the operaior’s

foot left the position, the treadle would spring upward and

custngage the drive and/or apply the brake. The witness stated

inal ine same deadman concept could be applied to the

— A-28 —

operator’s seat. Further, he discussed a spring loaded direc-

tional lever control which would require the operator to grasp

the control so that when the operator let go, the lever would

spring back into neutral and deprive the roller of its power. The

witness did not say whether this would also engage the brake nor

did he opine an estimate as to the distance it would take to stop

the roller after the mechanism was activated.

‘*Plaintiff’s expert witness went on to provide an extended

detailed accident reconstruction testimony. Dresser requested

an order in limine, prior to the expert’s taking the stand, to pre-

vent Kelsey’s reconstruction testimony because it would be bas-

ed on speculation and conjecture. The trial court stated that he

was going to permit the testimony but ‘‘since he did not know

what Kelsey was going to say,’’ he told Dresser’s counsel, ‘‘if

you are correct . . . and if at some point in time I sustain the mo-

tion, one of two things is going to occur. Either, (a) mistrial or

(b) the case is over,’’ — a directed verdict. Dresser renewed its

objection at the close of plaintiff's case. The trial court sustain-

ed Dresser’s objection at the close of the entire case, but con-

trary to its previous declaration, neither declared a mistrial or

granted a directed verdict. Rather, the court instructed the jury

to ‘‘disregard the witness’ testimony as to how the accident oc-

curred and any opinions based on that as there was no evidence

to support the reconstruction testimony.’’ It permitted the ex-

pert’s testimony as to the defect and the unreasonably

dangerousness of the product to stand.’

‘*Before addressing the substantive legal issues, we must con-

sider the contention of the plaintiff that Dresser failed to file a

motion for a directed verdict at the close of all the evidence, and

* We believe that the reception of the inadmissible evidence was pre-

judicial to Dresser. Because we make disposition of this appeal on

Dresser’s first point, we will not address this contention.

— A-29 —

therefore these issues have not been preserved for review. Plain-

tiff contends that since Dresser submitted and argued such a

motion before the close of all the evidence it was ineffective to

preserve review.

‘‘On the morning of the last day of trial, after conference

where instructions were prepared and the motions for a directed

verdict argued in camera, the trial court called for the jury and

allowed brief rebuttal evidence by plaintiff. This was done as a

matter of accommodation and judicial efficiency to which

plaintiff’s attorney did not object. Hypertechnically, plaintiff is

correct, but we see no prejudice in the judge’s decision not to

first call the rebuttal witness for plaintiff, and then waste the

jury’s time by breaking for a lengthy instructional and motion

conference.‘ The purpose of requiring the motion is to afford

the trial court the opportunity to rule on the issues at that stage

of the proceedings. That was done and the issue of submissibili-

ty was not waived. We deny respondent’s motion to dismiss.

‘‘Where failure to grant a directed verdict for Dresser is the

error asserted, we must determine whether or not plaintiff

presented substantial evidence at trial supporting his theory of

recovery. In reaching this determination, we must review the

evidence in the light most favorable to the respondent, giving

him the benefit of all reasonable inferences, and disregarding

the appellant’s evidence except as it aids the respondent’s case.

Strebler v. Rixman, 616 S.W.2d 876, 877 (Mo.App. 1981).

‘*Missouri has adopted the Restatement (Second) of Torts, §

402A (1976) as its standard of liability in products liability cases.

Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362,

364 (Mo. 1969). One essential element that the respondent must

* The rebuttal testimony consumed slightly more than two of 962

pages of transcript.

- 30 —

prove in a products liabilty case is that the defect in the product

was the proximate cause of injuries sustained by plaintiff while

he was using the product in a reasonably anticipated manner.

Garrett v. Joseph Schlitz Brewing Co., 631 S.W.2d 652, 654

(Mo.App. 1982). M.A.1. 25.04 (1978). As Judge Billings said

in Nesselrode, “‘although obviously abbreviated, the foregoing

explanation describes the heart and soul of a strict tort liability

design defect case — unreasonable danger and causation.”

Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 376

(Mo. banc 1986).* The dispositive issue in this appeal is whether

the plaintiff's evidence proved that the alleged defect caused the

injury. We believe that in two regards, it did not.

A.

‘Plaintiff's evidence revealed that the last witness to see the

respondent was ‘“‘less than a minute before the incident and at

that time plaintiff was on the ground cleaning the roller wheel

and the engine was off.’ No one saw the accident and plaintiff

cannot and did not explain how the accident occurred. The trial

court struck the expert witness’ reconstruction testimony. So

we must look solely to expert’s testimony to determine if there

was substantial proof the defect caused the injury. For that

endeavor we look closely at his testimony and specifically at the

question and reply to plaintiff's attorney’s hypothetical ques-

tion.

‘The facts upon which an expert's opinion is based, like the

facts sufficient to support a verdict, must measure up to the

legal requirements of substantiality and probative force and the

question whether such opinion is based on and supported by

‘ In strict product liability cases, the tortious aspect of the defen-

dant’s conduct or activity is the defect in the particular product, and it

is clear that the defect must be the cause of the injury. Richard W.

Wright, Causation in Tort Law, Calif.L.R., Vol. 73, No. 6, p. 1770,

Dec. 1985.

— A-31 —

sufficient facts or evidence to sustain the same is a question of

law for the court. Craddock v. Greenberg Mercantile, 297

S.W.2d 541, 548 (Mo. 1957). Mr. Kelsey’s opinion does not

measure up to these standards. Of course, an expert’s opinion

is in the nature of a conclusion of fact, but it must have a

substantial basis in the facts actually established. We therefore

meticulously review the expert answers and the hypothetical.

**Mr. Kelsey was asked to assume that the plaintiff was last

seen on (emphasis added) the roller and the roller engine was

off, that no one actually had seen the incident and that the

plaintiff's body was lying face down and severely injured. He

then was asked whether he had an opinion within a reasonable

degree of scientific certainty of whether or not this machine was

defective and unreasonably dangerous as designed and

manufactured. His answer: ‘‘In my opinion the machine is

defective in design.’ ‘‘Why do you have that opinion?’’ His

answer: ‘‘because it does not have a control which will stop the

machine in case the operator leaves the operating position.

That is the defect in this machine.’’ In reply the plaintiff's at-

torney asked, will the machine “‘continue to operate without the

operator in the operating position?’’ His answer ‘‘that’s cor-

rect.’ Later, he said: I believe that ‘‘The defect was the direct

cause of the incident.”’

**These conclusions were entirely too tenuous. They were not

supported by plaintiff's own evidence and are either speculative

or immaterial. The evidence clearly indicated that the plaintiff

was last seen on the ground prior to the accident with the engine

off. There was no evidence that plaintiff left his operating posi-

tion.

‘*Respondent contends that Scott Thoele testified that he saw

plaintiff on the roller and operating the machine one to two

minutes before the accident and we should ignore his brother

Kent’s testimony that the plaintiff was on the ground and the

engine was not running. If we were to do that then we must also

——————

— A-32 —

recognize that when Scott saw plaintiff, he testified the ‘‘plain-

tiff was standing and operating the roller.”’ Plaintiff is not

bound by the testimony of any one of his witnesses, if such

testimony is contradicted, but they are bound by the uncon-

tradicted testimony of their witnesses. DeLay v. Ward, 262

S.W.2d 628, 633 (Mo. banc 1953). Stark v. American Bakeries

Co., 647 S.W.2d 119, 121 (Mo. bane 1983).

‘**These facts are crucial to the answer of plaintiff's expert to

the question of how this accident happened and why the defect

caused the injury. He replied ‘‘Mr. Fahy (plaintiff), according

te the witnesses, had finished cleaning the roll at sometime prior

to the accident and had climbed up onto the rolling machine to

Start it, to move it, because he had started it, to move it, because

had he started it on the ground he would mot have been run

over. In other words, if he’d been down on the side of the

machine and started it and the machine had been in gear, it

would not have run over his body.’’ He reiterated that ‘‘it’s my

belief he was on fop of the roller when the accident scenario

began.” (Emphasis added).

*‘We repeat, there was absolutely no evidence that the plain-

tiff was on top of the roller just prior to the incident which was

the keystone to the expert’s conclusion and the gravamen of the

plaintiff's claim.

“‘This unwarranted assumption was not supported by the

evidence. However, it was the basis of the gravamen of plain-

tiff’s claim. Without it, the expert’s conclusions are not suffi-

cient. We realize that from the evidence many scenarios could

be theorized which could be assumed by inferences, guesswork

and surmise. When the cause of an injury is left to speculation

— A-33 —

and conjecture and when sound reasoning does not point to the

liability of the defendant there may be no recovery.°

‘‘Our holding above alone is sufficient grounds to reverse.

However, there is a second, independent ground for reversal

which we will address in reply to plaintiff’s contentions. There

is no evidence to support ‘‘but for’’ causation. We cannot infer

that had Dresser installed a deadman switch, a device that

causes the machine to come to a stop when the operator leaves a

safe position, that plaintiff’s injuries still would not have occur-

red. This is because we have positively no evidence of how or

where plaintiff came into contact with the roller and whether

* A recent opinion of the District Court of Appeals of Florida, Sec-

ond District presents similar facts. There the court noted:

The plaintiff sustained head injuries when he fell, and he has no

recollection of what caused the accident. One coworker was pre-

sent at the time of the accident, and testified that the plaintiff

was on the platform which was being raised or had been raised

to its extended position when the coworker turned away to look

at something across the street. When he heard a noise, he turned

back around and saw plaintiff falling through the air. He did

not see what caused the fall. There is no indication in the record

of how long a time passed between the coworker looking away

and the beginning of the fall.

There, the plaintiff urged that it had to be assumed that plaintiff was

standing on the platform inside the railing and for some reason, he

fell. Causation occurred in that the railings were too low to prevent

this fall. The court noted, like the case at hand, that equally

reasonable assumptions were possible, such as the plaintiff sitting,

standing or climbing on the railing, in which case, the higher railings

would not have prevented the fall. Adkins v. Economy Engineering

Co., 495 So.2d 247, 248 (Fla.App. 1986).

i eh an

any deadman switch would have served to bring the machine to

a halt before it ran over plaintiff.’

‘*Plaintiff vigorously disagrees. First, he contends that it is

not his burden to prove that the roller could have been rendered

safer than it was. To support his position, he cites E/more v.

Owen-lllinois, Inc., 673 S.W.2d 434 (Mo. banc 1984). Specif-

ically, he refers to this passage:

Thus, plaintiffs establised that Kaylor was ‘‘defective’’

when they proved that it was unreasonably dangerous as

designed; they were not required to show additionally that

the manufacturer or designer was ‘‘at fault,’’ as that con-

cept is employed in the negligence context.

Id. at 438.

‘*Plaintiff mischaracterizes the import of Elmore. Elmore

held that ‘‘state of the art’’ evidence has no bearing on the out-

come of a strict liability claim; Jd. at 438. In Elmore, the defen-

dant had argued that there was insufficient evidence to support

a finding of defect since it could be shown that, at the time of

manufacture, defendant could not have known of the product’s

unreasonable danger. /d. at 437. Dresser does not argue here

that it could not have known of the harm the Galion roller could

cause when it was made in 1950 and therefore state of the art, as

applied to the issues of this case, is irrelevant. The issue is

causation.

’ In his brief, plaintiff asserts that the defect was not the failure to

install a deadman’s switch, but, rather, that the roller would continue

to operate with the operator not in the operating position. We find

this to be a distinction without a difference. First, throughout trial,

plaintiff centered his thrust on the failure to install a deadman switch

(e.g. Boulter Kelsey’s lengthy discussion on types of deadman’s swit-

ches and the argument that a 10¢ spring would have prevented the ac-

cident). Second, how else does a roller stop when the operator leaves

the operating position? Perhaps there are other names for emergency

stopping devices which sense that the operator no longer is in the

operating position and therefore cause the cessation of locomotion

but the theory is still the same.

— A-35 —

‘*Plaintiff then asserts that he did adduce sufficient evidence

for the jury to infer that the deadman switch would have

prevented the accident. First, he says that the witness who ran

after the machine, which was traveling three to five miles an

hour, testified that when he turned it off, it stopped in a couple

of feet.* While plaintiff believes that the evidence in and of

itself was sufficient, he ignores the key fact that there is no

evidence that respondent’s body was more than ‘‘a couple of

feet’’ away from the roller wheel or when a deadman switch, if

present would be triggered. Certainly had the evidence in-

dicated respondent had been a good distance away, a jury could

infer that ‘‘a couple of feet’’ stopping distance was sufficient to

establish causation. But, here, the jury could only speculate

where and how respondent came into contact with the roller.

When the roller began operating without the operator in the

operating position was he far enough away so that, had there

been a deadman’s mechanism it would have stopped the roller

in time? Or was he so close to the roller that a deadman’s

mechanism would not have stopped the roller soon enough to

save him? In fact, was his position such that an emergency stop-

ping device would have resulted in the roller coming to a stop

upon the respondent? The evidence does not permit a finding

of fact on these questions.

* What his deposition actually stated was:

Question: How far did the roller go after you hit the kill switch?

Answer: Just stopped or—a couple of feet—or—

Question: Was it on grass or something?

Answer: Yes, It was.

We do not believe that the above is sufficiently precise to have any

significant probative value; especially in light of the fact that the roller

was stopped by throwing the gear into reverse.

Also, when stopped, the roller was on grass, not asphalt.

— A-36 —

‘‘Respondent’s second bit of evidence is the testimony

previously stated of his expert who, in response to counsel’s

question opined:

Q. Do you have an opinion within a reasonable degree of

scientific certainty whether that defect you just described

and that defect of the unreasonably dangerous design of

this machine was causally connected with the plaintiff be-

ing run over by the roller?

MR. PERRYMAN: Same objection.

MR. BECKEMEIER: We join.

THE COURT: Very well. It’s overruled. You may

answer.

THE WITNESS: Yes, I believe that the defect was the

direct cause of this incident.

Q. (By Mr. Dowd) Why is that? -

A. Because, given all the facts that we have about the acci-

dent, had the roll [sic] stopped when Mr. Fahy ieft the

operating position, it would not have rolled over him.

‘*His answer is predicated on ‘‘all the facts that we have about

the accident’’ and that ‘‘Mr. Fahy left the operating position.”’

His predicament is that he did not have ‘‘all the facts’’ nor have

“any evidence when or if he left the operating position. ‘‘An ex-

pert’s opinion as to the cause of damage must be a conclusion of

fact and must have a substantial basis in the facts actually

established by the evidence.’’ Garrett, 631 S.W.2d at 655. Once

the expert’s reconstruction testimony was stricken, all that re-

mained is evidence the roller can be stopped in a couple of feet

and an injured plaintiff, who if he fell at all, fell either within or

outside the stopping distance.

‘*Respondent calls our attention to Uder v. Missouri Farmers

Association, Inc., 668 S.W.2d 82 (Mo.App.1983). While that

=e —

case involved expert testimony and circumstantial evidence to

allow the jury to infer defect and causation, the case is

distinguishable since, unlike here, there was substantial evidence

to support the inferences. There, the deceased was found en-—

tangled in the plastic shield of the power take off of a fertilizer

spreader. The expert based his conclusion on the examination

of parts of the equipment and the twisting damage of the

shield.’

**Plaintiff’s reliance on McClanahan v. Deere & Co., 648

S.W.2d 222 (Mo.App.1983) is also misplaced. Even though

there were no eye witnesses to the accident, there was substan-

tial evidence for the jury to infer that a ‘‘hair-line crack’’ in the

switch on a combine header caused the accident. In Mc-

Clanahan there was evidence by an expert witness and a lay per-

son who testified to the hair-line crack and the reaction of the

combine header when the switch was bumped. Our brethren in

the Southern District concluded that there was sufficient

evidence to show causation.

‘Plaintiff also cites us to McGowne v. Challenge-Cook

Bros., Inc., 672 F.2d 652 (8th Cir.1982) for the proposition that

an unwitnessed fall is properly submittable as to defect and

causation. McGowne, however, is distinguishable as it was tried

as a failure to warn and not a design defect case. Jd. at 658. As

the Eighth Circuit concluded ‘‘it could reasonably be inferred

from the evidence that in the absence of a warning a worker

could fall into the charging hopper and be injured.’’ /d. at 662.

(Emphasis provided). Here again, although this is a failure to

warn case, the court concluded there was sufficient evidence to

support an inference for the jury that the manufacturer failed to

warn.

* No test was performed on the roller. Soon after the accident it was

dismantled. Interestingly, Boulter Kelsey, respondent’s expert, had

run tests on another roller. These tests, using a switch rigged to the ig-

nition switch, indicated that the stopping distances ranged from five

to ten feet.

— A-38 —

‘*Plaintiff next brings to our attention the recent case of Klein

v. General Electric Company, 714 S.W.2d 896 (Mo.App. 1986)

where this court said ‘‘[t]he testimony of an expert that a defect

in a product was the probable cause of an incident may con-

stitute substantial evidence.’’ /d. at 900. We strongly agree.

The distinction, between the case sub judice and Klein,

however, is that, in K/ein, the expert testified that a safety

device, which detects the temperature of a coffeemaker and

shuts off the flow of electricity when the temperature reaches an

unsafe level, did not work properly. He further testified that

failure to stop the flow of electricity can overheat the cof-

feemaker and ignite it and the adjacent flammable materials. /d.

at 901. It is reasonable for a jury to infer that this mechanical

failure of the safety device to deiect and stop the flow of elec-

tricity caused the fire. This is unlike this asphalt roller, where

we have no evidence for the jury to infer that a safety device

could have disengaged the power drive and overcome the iner-

tial forces to stop the movement of the roller and not cause the

injury. Further, it must be noted that the expert in K/ein based

his testimony on, among others, two vital laboratory ex-

periments. As a result of the tests the expert testimony in Klein

was based on facts which constituted substantial evidence.

Here, there were no experiments save the results of an experi-

ment on another roller, not introduced into evidence by Fahy,

which indicated stopping distance of five to ten feet. In fact, as

the K/ein court taught, expert testimony is not always substan-

tial evidence, but rather, it ‘‘may constitute substantial

evidence.”’

‘*The issue is further complicated by the alterations made by

County Asphalt on the roller. The changes may not be

superceding causes. However, the fact that an operator would

have to lean over to the side of the machine to adjust the con-

trols, or that he had to sit on a toolbox or stand instead of sit-

ting on a seat with a rail, or the fact that manual cleaning of the

machine was necessary, or the fact that part of the operator’s

platform was cut away, exposing the operator to the rear wheel,

— A-39 —

or that he could start the roller while standing on the ground

means that a jury would be even less able to infer that the roller

would have come to a stop in time to prevent the accident.

‘‘In summary, as plaintiff’s witnesses’ opinion on causation

was not based on evidence in the record and as there was no

evidence for a jury to determine whether plaintiff came into

danger within or beyond the possible stopping distances of a

roller equipped with a deadman’s switch, plaintiff failed to

make a submissible case that the defect caused plaintiff’s injury.

As plaintiff failed to establish the necessary element of causa-

tion, we reverse and enter judgment for Dresser.”’

I do not believe that evidence upon which two courts can dif-

fer to such a wide degree is either the type of evidence, the quan-

tum of evidence or the quality of evidence which we should say

is sufficient to justify saddling anyone with $3.0 million of

liability.

The cause should be retransferred to the Court of Appeals,

Eastern District as improvidently transferred for entry of and

publication of the Court of Appeals opinion, or, this Court

should reverse the cause and enter judgment for Dresser.

_

ai iia

APPENDIX C

IN THE

SUPREME COURT OF MISSOURI

EN BANC

No. 69287

Terrence J. Fahy,

Plaintiff-Respondent,

VS.

Dresser Industries, Inc.,

Defendant-Appellant.

On Appeal From The Circuit Court Of The City Of St. Louis

State Of Missouri

The Honorable Brendan Ryan, Judge

Appellant’s Motion For Rehearing

And

Appellant’s Suggestions In Support

Of Its Motion For Rehearing

APPELLANT'S MOTION FOR REHEARING

I.

The Majority Opinion Overlooked Material Matters Of

Law And Fact In That It Failed To Apply The Correct

Standard Of Review In Determining That The Plaintiff

Made A Submissible Case And Ignored Uncontradicted

Evidence Supporting The Inference That Plaintiff Was On

The Ground Immediately Before The Accident.

The majority opinion overlooked the law and failed to apply

the proper standard of review in this case on the issue of causa-

tion. Also, the majority failed to review critical facts in deter-

mining the sufficiency of plaintiff’s proof on the issue of causa-

tion. Central to plaintiff’s theory of causation was that plaintiff

|

was up on the roller and then fell off of the roller immediately

prior to the accident. However, no one witnessed the plaintiff

fall from the roller and, under established law concerning cir-

cumstantial evidence, it was the plaintiff’s burden to introduce

sufficient evidence having a tendency to exclude every other

reasonable inference other than that plaintiff was up on che

roller. The majority opinion failed to apply the circumstantial

evidence standard of review requiring examination of the proof

to determine whether the evidence tended to exclude other

reasonable inferences.

The majority opinion ignored uncontradicted testimony of

Kent Thoele, Lonnie Lucas, and other witnesses, introduced by

the plaintiff, which supported the inference that the plaintiff

was on the ground immediately before the accident. The cir-

cumstantial evidence, even when viewed most favorably to

plaintiff, had no tendency to exclude the reasonable possibility

that plaintiff was on the ground immediately before the acci-

dent. The verdict of the jury was, therefore, a product of

speculation, conjecture, and guess-work. This portion of the

majority opinion should therefore be withdrawn and judgment

should be entered for Dresser.

The Majority Opinion Misinterpreted And Misapplied

Missouri Law When It Held That The Plaintiff Was Not

Required To Prove That The Proposed Deadman Device

Would Have Survived The Numerous Alterations To The

Roller.

The majority misapplied Missouri law when it failed to re-

quire plaintiff to prove that the alleged defect (the absence of a

‘“‘deadman device’’) was the ‘‘proximate,’’ ‘‘direct,’’ or

‘*substantial’’ cause of plaintiff’s accident. The uncontroverted

evidence established, as a matter of law, that even had the roller

involved in this case been equipped with a ‘‘deadman’’ device as

proposed, plainiiff’s accident would have occurred anyway due

-

ee ye

to the numerous substantial alterations to the machine which

would have circumvented any proposed device. Since the claim-

ed defect could not, as a matter of the physical realities of this

case, have produced plaintiff’s injuries, Dresser is not liable and

the court should enter judgment for Dresser.

The Majority Opinion Overlokked The Material Fact That

The Roller Brake Was Inoperative.

The majority overlooked the material fact that the roller’s

brake was inoperative in holding that: ‘‘Thus, if this roller had

had a deadman switch which also applied the brakes, it seems

that the roller would have stopped in much less than ‘a couple

of feet’ after Fahy left the drivers position and thus activated

the switch.’’ (Majority opinion, at p. 6).

The only evidence in the record, all in plaintiff’s case, was

that the roller hand/parking brake was inoperative and had

been for a number of years before the accident. Yet, the ma-

jority held that there was sufficient evidence for a jury to find

that a deadman switch would have stopped the machine because

plaintiff’s expert, Boulter Kelsey, testified that such a switch

could have been designed to apply the brakes at the same time it

disengages the drive of the machine. This, concludes the ma-

jority, is sufficient proof for the jury to find that the machine

could have been stopped in much less than ‘‘a couple of feet’’

and thus prevent harm to plaintiff. The majority overlooked

the fact that this machine had no brake. The brake had been in-

operative for a long time before this accident. There is no

evidence in the whole record that, at the time of the accident,

the machine had any brake whatsoever which could have been

activated by a deadman switch. (R. 140-141, 172-173). Thus, by

the court’s own analysis, without the necessary brake, there was

no evidence from which a jury could reasonably conclude that a

deadman switch would have stopped the machine in time to

have prevented injury to plaintiff even though plaintiff fell from

—

the machine as theorized by the majority. The court should

enter judgment for Dresser.

IV.

The Majority Opinion Overlooked The Material Fact That

The Evidence Showed The Directional Lever Of The Roller

Was Modified And There Was No Evidence That It Was

Unmodified.

At pages 8 and 9 of its opinion, the majority found that plain-

tiff sustained his burden of proving that he was damaged by a

defective condition of the machine which existed when the

machine was sold because plaintiff presented evidence that the

roller could have been designed with a directional lever, called a

neutral safety, which would automatically return to neutral

when released. The majority further held that there was no in-

dication that this roller’s directional lever was modified ‘‘in any

way.’ Since there was no modification of the directional lever,

concludes the majority, a reasonable inference arises that the

modifications to the roller did not put it in a substantially

changed condition. (Majority opinion, at p. 9).

In fact, plaintiff’s evidence clearly shows that the directional

lever of the machine had been modified and was defective at the

time of the accident. (R. 120-121, 142, 159, 160, 161, 165, 185).

The transmission of the machine had been repaired, and the

transmission and clutch assembly was disassembled from the

engine when the new engine unit was installed. (R. 142). The

directional lever mechanism itself was so worn that even if the

lever was in the neutral position, vibration from the engine

would cause it to drop into gear or engage itself. (R. 160). There

is no evidence in the record that the directional lever was un-

modified. Therefore, on this centrally crucial issue of substan-

tial change the majority overlooked the fact that the evidence

clearly shows modification of the directional lever and that the

machine was substantially changed. The Court, it is submitted,

should withdraw that portion of its opinion and order judgment

to be entered for defendant Dresser.

=

Vv.

In Holding That The Trial Court Was Within Its Sound

Discretion In Failing To Grant A Mistrial After Striking

The Boulter Kelsey Reconstruction Testimony, The Ma-

jority Opinion Overlooked The Material Fact That No

Evidence Supported Kelsey's Conclusions And That It

Was Impossible For The Jury To Disregard The Stricken

Testimony Because It Could Not Reasonably Be Separated

From The Unstricken Testimony.

On pages 10-11, the majority opinion holds that the trial

court did not abuse its discretion in failing to grant defendant's

request for a mistrial because the reconstruction testimony of

Boulter Kelsey, which was admitted but subsequently stricken,

added nothing to the plaintiff’s case and further, because there

were no exceptional circumstances giving rise to an assumption

that the jury ignored the court’s instruction to disregard the

stricken Kelsey testimony.

That holding by the majority opinion ignores the material

fact that the stricken Kelsey testimony supplied crucial details of

the manner in which plaintiff claims this accident occurred, not

otherwise in evidence. Further, the stricken and unstricken

testimony was so intermixed and intertwined as to be in-

separable.

Because the court overlooked these material facts, it is sub-

mitted that the majority opinion should be withdrawn and the

case remanded for a new trial.

VI.

The Majority Opinion Overlocked And Misstated

Missouri Law In Holding That Dresser Invited Plaintiff's

Misstatement Of Law In Closing Argument.

The majority opinion recognized that plaintiff’s counsel

misstated the law during closing argument when he argued that

= Al —

Dresser could have had Teledyne Wisconsin and Allied Con-

struction included as defendants on the verdict form. (Majority

opinion, at p. 12). The majority held, however, that Dresser

cannot complain of any error concerning the argument because

counsel for Dresser invited plaintiff's counsel’s argument. This

holding overlooks and misstates Missouri law which provides

that misstatements of the law made during argument may not be

invited by improper arguments of the complaining party. Under

established Missouri law, the trial court has the absolute, non

discretionary duty to correct misstatements of the law.

Vil.

The Majority Opinion Misinterpreted The Law In Deter-

mining That Dresser’s Argument That The Judgment

Should Have Been Reduced By The Amount Of The Set-

tlement Between Plaintiff And Teledyne Wisconsin And

Allied Construction Was Not Preserved For Appellate

Review Because It Was Not Presented To The Trial Court

In A Motion For New Trial.

The majority opinion states that the court need not address

Dresser’s claim of error regarding the trial court’s failure to

reduce the judgment by the amount of the plaintiff’s settlements

with Dresser’s co-defendants. (Majority opinion, at p. 18). The

majority Opinion states that this point has not been preserved

because it was not included in a motion for new trial. /d.

Such an error, however, does not have to be included in post-

trial motions. The contribution statute mandates that a judg-

ment shail be reduced by the amount of settlement, and the

Supreme Court Rules provide that an error in failing to reduce

an award pursuant to law may be remedied by either the trial

court or an appellate court before which the error is raised.

Furthermore, Missouri appellate courts have, on a number of

occasions, addressed such errors under the plain error rule. It is

clear that the award should have been reduced by the trial court,

=

and that the failure to reduce the judgment has resulted in a

‘*windfall’’ to the plaintiff at the expense of Dresser.

This court should remand the case to the trial court for an ex-

press finding as to the amount of the settlements and a reduc-

tion of the judgment in that amount.

Vill.

The Majority Opinion Has Denied Dresser Due Process Of .

Law In Violation Of Its Rights Under The U.S. And

Missouri Constitutions.

The defendant has not waived its due process challenge,

because the violation of the defendant’s due process rights oc-

curred, not at trial or in court of appeals, but rather in the

Supreme Court of Missouri when the Supreme Court acted as

the trier of fact in violation of Missouri procedure and when the

Supreme Court allowed recovery under a strict liability theory

without requiring a showing of causation and substantially same

conditions.

Where the undisputed facts are that the roller had no brake

and that the forward/reverse lever was severely worn and had

been disconnected on various occasions, it is a violation of due

process and reversible error for the Supreme Court of Missouri

to find that the roller had a working brake which could have

stopped the roller and that the forward/reverse lever was in

substantially the same condition as when the product was

manufactured and sold thirty years earlier.

In Missouri, showing of causation and substantially same

condition is required for recovery under a theory of strict pro-

duct liability. When the Supreme Court of Missouri permits

recovery of damages under a strict product liability theory, in

the absence of either a showing of causation or substantially

same condition, the Supreme Court of Missouri has violated the

due process rights of the defendant by allowing the jury to

decide the issue of liability without satisfying any legally fixed

standard.

— A-47 —

CONCLUSION

For the reasons stated herein, Dresser respectfully prays the

Court to withdraw the majority opinion and enter judgment for

Dresser. In the alternative, Dresser respectfully prays the Court

to remand the case for a new trial. Finally, and in the event the

Court fails to grant any of the above requested relief, defendant

Dresser prays the Court to rehear arguments in this case and

reconsider the decision herein handed down.

~ Ade

APPENDIX D

CLERK OF THE SUPREME COURT

STATE OF MISSOURI

Post Office Box 150

Jefferson City, Missouri

65102

Thomas F. Simon Telephone

Cierk (314) 751-4144

December 15, 1987

Mr. Gerald Morris

One City Center

St. Louis, Missouri 63101

Re: Terrence J. Fahy vs. Dresser Industries, Inc., et al.,

No. 69287

Dear Mr. Morris:

This is to advise that the Couri iris day entered the following

order in the above entitled cause:

‘*Appellants’ motion for rehearing overruled.”’

Very truly yours,

/s/ Thomas F. Simon

Clerk

cc: Mr. Douglas P. Dowd

ya