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No. 11-4039
United States Court of Appeals for the Tenth Circuit DAVID CALDER, INDIVIDUALLY AND AS FATHER AND GUARDIAN OF HMP, A DECEASED MINOR,
Plaintiff-Appellee, v. BLITZ U.S.A., INC., Defendant-Appellant. On Appeal from the United States District Court for the District of Utah (Campbell, J.) Case No. 07-cv-00387 BRIEF OF DEFENDANT-APPELLANT Shawn McGarry Gary T. Wight KIPP & CHRISTIAN, P.C. 10 Exchange Place, 4th floor Salt Lake City, UT 84111 (801) 521-3773 Scott W. Sayler Jennifer M. Stevenson SHOOK HARDY & BACON LLP 2555 Grand Boulevard Kansas City, MO 64108 (816) 474-6550
Christopher Landau, P.C. Shelby Reitz KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 (202) 879-5000
[email protected]
ORAL ARGUMENT REQUESTED June 2, 2011
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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, I hereby certify that defendant Blitz U.S.A., Inc. is wholly owned by Blitz Acquisitions, LLC.
No
publicly held corporation owns ten percent (10%) or more of the stock of Blitz Acquisitions, LLC. /s/ Christopher Landau __ Christopher Landau, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000
[email protected]
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TABLE OF CONTENTS Page STATEMENT OF RELATED CASES ..................................................... vii INTRODUCTION ....................................................................................... 1 STATEMENT OF JURISDICTION ........................................................... 4 STATEMENT OF THE ISSUES ................................................................ 5 STATEMENT OF THE CASE AND THE FACTS .................................... 5 A.
Background............................................................................... 5
B.
Proceedings Below.................................................................... 9
SUMMARY OF ARGUMENT .................................................................. 15 STANDARDS OF REVIEW ..................................................................... 19 ARGUMENT ............................................................................................. 20 I.
The District Court Erred By Denying Blitz’ Motion For Judgment As A Matter Of Law On The Strict Liability, Negligence, Gross Negligence, And Warranty Claims Where Calder Failed To Prove That The Gasoline Container Was Unreasonably Dangerous. ............................................................... 20
II.
The District Court Erred By Denying Blitz’ Motion For Judgment As A Matter Of Law On The Negligent Misrepresentation Claim Where Calder Failed To Prove Any False Representation Or Actionable Omission. ............................. 34
III.
The District Court Erred By Allowing Calder To Introduce Evidence Of A Post-Sale Evaluation Of Flame Arrestors And Failing To Instruct The Jury On Utah’s “State Of The Art” Doctrine............................................................................................ 44 A.
Evidence of Post-Sale Evaluation.......................................... 45
B.
Refusal to Instruct Jury ......................................................... 49 ii
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The District Court Erred By Refusing To Remit The Jury’s Award Of Future Lost Earnings Damages To Zero Where Calder Failed To Prove Any Such Damages With Reasonable Certainty. ......................................................................................... 53
CONCLUSION ......................................................................................... 58 STATEMENT REGARDING ORAL ARGUMENT ................................. 58
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TABLE OF AUTHORITIES Page(s) Cases Ahrens v. Ford Motor Co., 340 F.3d 1142 (10th Cir. 2003) ....................................................... 31 Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293 (10th Cir. 2004) ............................... 19, 34, 42, 44, 52 Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) ....................................... 33, 34, 42, 44 Atkinson v. IHC Hosps., Inc., 798 P.2d 733 (Utah 1990)................................................................ 35 Brown v. Sears, Roebuck & Co., 328 F.3d 1274 (10th Cir. 2003) .................................. 2, 21-27, 31-33 Burrell v. Armijo, 603 F.3d 825 (10th Cir. 2010) ......................................................... 19 Clarksville-Montgomery County Sch. Sys. v. United States Gypsum Co., 925 F.2d 993 (6th Cir. 1991) ........................................................... 52 Clawson v. Walgreen Drug Co., 162 P.2d 759 (Utah 1945)................................................................ 56 Cook v. Rockwell Int’l Corp., 618 F.3d 1127 (10th Cir. 2010) ....................................................... 19 Corbett v. Seamons, 904 P.2d 229 (Utah Ct. App. 1995) ................................................. 53 English v. Suzuki Motor Co., No. 95-4177, 1997 WL 428565 (10th Cir. July 30, 1997) (unpublished) ................................... 36, 38
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Farrell v. Klein Tools, Inc., 866 F.2d 1294 (10th Cir. 1989) ........................................... 34, 42, 44 Giusti v. Sterling Wentworth Corp., 201 P.3d 966 (Utah 2009).......................................................... 53, 57 Gudmundson v. Del Ozone, 232 P.3d 1059 (Utah 2010).............................................................. 50 Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065 (10th Cir. 2002) ....................................................... 20 Henrie v. Northrop Grumman Corp., 502 F.3d 1228 (10th Cir. 2007) .................................. 2, 21-28, 32-33 Linn v. United Plant Guard Workers of Am., 383 U.S. 53 (1966) ........................................................................... 57 Moore v. Smith, 158 P.3d 562 (Utah Ct. App. 2007) ................................................. 35 Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221 (10th Cir. 1999) ................................................. 34, 42 Orient Mineral Co. v. Bank of China, 506 F.3d 980 (10th Cir. 2007) ......................................................... 36 Perlmutter v. United States Gypsum Co., 4 F.3d 864 (10th Cir. 1993) ....................................................... 19, 52 Rhodes v. Wells Fargo Home Mortg., No. 2:10-CV-393, 2010 WL 3222414 (D. Utah Aug. 16, 2010) .................................................................. 36 Salt Lake City Corp. v. Kasler Corp., 855 F. Supp. 1560 (D. Utah 1994) .................................................. 21 Sawyers v. FMA Leasing Co., 722 P.2d 773 (Utah 1986) (per curiam) ........................ 53, 54, 56, 57 SEC v. Peters, 978 F.2d 1162 (10th Cir. 1992) ....................................................... 19 v
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Slisze v. Stanley-Bostitch, 979 P.2d 317 (Utah 1999)................................................................ 24 Smith v. Frandsen, 94 P.3d 919 (Utah 2004)...................................................... 35, 36, 41 Stevens-Henager College v. Eagle Gate College¸ 248 P.3d 1025 (Utah Ct. App. 2011) ................................... 53, 54, 57 Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19 (1962) ........................................................................... 34 TruGreen Cos., LLC v. Mower Bros., Inc., 199 P.3d 929 (Utah 2008).......................................................... 53, 57 United States v. Rohde, 159 F.3d 1298 (10th Cir. 1998) ......................................................... 1 Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237 (10th Cir. 2009) ................................................... 6, 53 Werth v. Makita Elec. Works, Ltd., 950 F.2d 643 (10th Cir. 1991) ......................................................... 19 Statutes and Rules 28 U.S.C. § 1291.......................................................................................... 4 28 U.S.C. § 1332.......................................................................................... 4 Fed. R. Civ. P. 50 ........................................................................................ 4 Fed. R. Civ. P. 59 ........................................................................................ 4 Fed. R. Evid. 403....................................................................................... 10 Utah Code § 78-15-6(2) ............................................................................. 24 Utah Code § 78B-6-702....................................................................... 20, 24 Utah Code § 78B-6-703(1) ............................................................ 44, 46, 50
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STATEMENT OF RELATED CASES Pursuant to 10th Cir. R. 28.2(C)(1), defendant-appellant Blitz U.S.A., Inc. hereby states that there are no prior or related appeals.
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INTRODUCTION This case presents the question whether defendant Blitz, a manufacturer of plastic consumer gasoline containers, has a duty under Utah law to make it safe to pour gasoline directly from its containers onto a fire. The plaintiff, David Calder, admitted below that he knew it was “stupid” of him to have inserted the nozzle of a Blitz gasoline container inside a lit wood-burning stove in his trailer and poured gasoline directly onto a fire, causing a blaze that swept through the trailer and tragically killed his two-year-old daughter. He nonetheless sued Blitz on the ground that the container was “unreasonably dangerous,” and hence defective, because it did not include a “flame arrestor” that allegedly would have prevented the tragedy. The district court denied Blitz’ motion for judgment as a matter of law, and allowed the case to go to a jury, which awarded Calder over $4 million in damages. The judgment cannot stand.
There is a reason why “pouring
gasoline on a fire” is a common expression for igniting a conflagration. See, e.g., United States v. Rohde, 159 F.3d 1298, 1305 n.11 (10th Cir. 1998). There is no such thing as a consumer gasoline container from
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which it is safe to pour gasoline directly onto a fire, and if the law were to impose a duty to make such a container, there would be no more such containers.
And stamping out this business would not promote fire
safety; rather, it would just drive people to store gasoline in old milk jugs and other sundry containers that are less safe. Utah tort law neither compels nor tolerates that result. To the contrary, as this Court (applying Utah law) has explained, a plaintiff cannot prove that a product is unreasonably dangerous, and hence defective, without showing, among other things, that the product is more dangerous than both (1) an ordinary and prudent user would expect and (2) the plaintiff himself expected.
See, e.g., Henrie v.
Northrop Grumman Corp., 502 F.3d 1228, 1232-33 (10th Cir. 2007); Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1279-82 (10th Cir. 2003). Thus, a product is not unreasonably dangerous under Utah law simply because it is feasible to add a proposed safety feature. Unless the product is more dangerous than expected, it is not defective simply because it could have been made safer—especially because what is “safer” is often debatable, and an ostensible safety feature that may reduce one risk may increase another. 2
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That simple and common-sense point resolves this case, because Calder never presented any evidence that the plastic consumer gasoline container he bought at Pep Boys for $3.99 was more dangerous than an ordinary and prudent user would expect, or than he himself expected. To the contrary, as noted above, Calder admitted that he knew it was “stupid” of him to have inserted the nozzle of the container into a lit wood-burning stove inside his trailer and poured gasoline directly onto a fire. Accordingly, the district court should have granted Blitz’ motion for judgment as a matter of law, and never should have submitted the case to the jury. Above and beyond that fundamental error, the district court committed a number of other manifest legal errors. For example, the court allowed Calder to present a negligent misrepresentation claim to the jury, even though Calder never identified any false representation or actionable omission. The court also allowed Calder to violate Utah’s “state of the art” doctrine by presenting evidence of a standards-setting body’s evaluation of flame arrestors long after he purchased the gasoline container at issue here, and then exacerbated the error by refusing to instruct the jury on that doctrine. And the court refused to remit the 3
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jury’s award of future lost earnings damages to zero even though Calder presented no evidence of any actual earnings, and therefore necessarily failed to prove future lost earnings with the requisite reasonable certainty.
For all these reasons, this Court should reverse the
judgment. STATEMENT OF JURISDICTION The district court had diversity jurisdiction over this case under 28 U.S.C. § 1332. Plaintiff Calder is a citizen of Utah, defendant Blitz is an Oklahoma corporation with its principal place of business in Oklahoma, and the amount in controversy exceeds $75,000. App. 49. The district court originally entered judgment on the jury verdict on November 17, 2010, App. 242, and entered an amended judgment on the following day, App. 243, 244.
Blitz thereafter timely moved for
judgment as a matter of law, and a new trial and/or remittitur, under Fed. R. Civ. P. 50 and 59. The district court denied these post-trial motions on February 8, 2011. App. 328-33. Blitz timely filed its notice of appeal from the district court’s final judgment on March 9, 2011. App. 334-36. This Court has jurisdiction over the appeal under 28 U.S.C. § 1291.
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STATEMENT OF THE ISSUES 1.
Whether the district court erred by denying Blitz’ motion for
judgment as a matter of law on the strict liability, negligence, gross negligence, and warranty claims where Calder failed to prove that the gasoline container was unreasonably dangerous. 2.
Whether the district court erred by denying Blitz’ motion for
judgment as a matter of law on the negligent misrepresentation claim where Calder failed to prove any false representation or actionable omission. 3.
Whether the district court erred by allowing Calder to
introduce evidence of post-sale developments and failing to instruct the jury on Utah’s “state of the art” doctrine. 4.
Whether the district court erred by refusing to remit the
jury’s award of future lost earnings damages to zero where Calder failed to prove any such damages with reasonable certainty. STATEMENT OF THE CASE AND THE FACTS A.
Background
This case arises out of a tragic fire that took place in a single-wide trailer located in Randlett, an unincorporated area near the town of Myton, Utah, on the night of December 28, 2005. App. 70, 73, 364-65, 5
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414-18. Given the procedural posture of the case, the facts here are set forth in the manner most favorable to Calder. See, e.g., Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1243-44 (10th Cir. 2009). Calder and his three children (two boys, ages 9 and 6, and a girl, age 2) arrived at the unheated trailer earlier that evening, and Calder attempted to start a fire in the wood-burning stove because it was cold. App. 364, 414-20. He first lit pieces of paper and cardboard, but the logs were wet and would not catch fire, so he next turned to a portable plastic gasoline container that he kept near the trailer. App. 426-29. That container, which Calder had bought at Pep Boys for $3.99 six years earlier, in April 1999, was square and red, and had a corrugated nozzle. App. 429-32, 650-53 (photographs). This model, manufactured by Blitz as Model 11810, has a capacity of approximately two gallons, and is commonly used to store gasoline for lawnmowers, chainsaws, and other small gasoline-powered appliances. App. 399, 428, 432, 517-18. The container bears warnings on both sides, impressed directly into the plastic so that they cannot come off, be burned, or become stained and unreadable, like a paper label. App. 542-46, 651-52. On
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both sides, the container says GASOLINE in large capital letters, and then underneath (again in capital letters): EXTREMELY FLAMMABLE DANGER—VAPORS CAN EXPLODE HARMFUL OR FATAL IF SWALLOWED App. 651-52 (photographs).
On one side, the container displays the
mark of Underwriters Laboratories and says: CAREFULLY READ ALL CAUTIONS ON BOTH SIDES NON-METALLIC PETROLEUM PRODUCT CONTAINER. CLASSIFIED BY UNDERWRITERS LABORATORIES, INC.® IN ACCORDANCE WITH THE STANDARD SPECIFICATION FOR PLASTIC CONTAINERS (JERRY CANS) FOR PETROLEUM PRODUCTS. ANSI/ASTM F852-86 48R8 MADE IN U.S.A. App. 652 (photograph). On the other side, the container says: IF SWALLOWED, DO NOT INDUCE VOMITING. CALL PHYSICIAN IMMEDIATELY•KEEP OUT OF REACH OF CHILDREN•AVOID PROLONGED BREATHING OF VAPORS•DO NOT SIPHON BY MOUTH•DO NOT STORE IN VEHICLE OR LIVING SPACE•STORE AND USE IN WELL VENTILATED AREA•VAPORS CAN BE IGNITED BY A SPARK OR FLAME SOURCE MANY FEET AWAY•KEEP AWAY FROM FLAME, PILOT LIGHT, STOVES, 7
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HEATERS, ELECTRIC MOTORS, AND OTHER SOURCES OF IGNITION•KEEP CONTAINER CLOSED•PLACE CONTAINER ON GROUND WHEN FILLING App. 478-79, 651 (photograph). To accelerate the fire in his stove, Calder “splashed a little bit of gas onto what was already going in the fireplace.” App. 467; see also App. 436 (same); App. 485 (“I poured gas on [the fire], so I could get it ignited.”); App. 405 (testimony of David Cheshire, Uintah County Sheriff’s Office, that Calder informed him immediately after the incident that he had “poured gasoline onto a fire.”). Calder placed the container’s nozzle inside the lit stove, and “swung” or “shook” the container to “splash” the gasoline directly onto the fire. App. 436, 46678. His two youngest children were standing nearby; the older boy was outside the trailer. App. 438, 445-46. According to Calder, the fire from the stove ignited the gasoline or gasoline vapors, traveled back to the container, and caused a “flashback explosion,” which splattered burning gasoline around the trailer. App. 358, 390-91, 436-37, 474-75, 587. The fire also sprayed onto the clothing of Calder and his two-year-old daughter. App. 439, 587, 591. Calder testified that he patted out the spots of fire on his daughter’s 8
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clothes, put her down on a chair, and ran outside to try to extinguish the fire on his own clothes, leaving the 6-year-old boy and the 2-year-old girl inside the burning trailer.
App. 439-41, 479-80, 594-95.
After
extinguishing the flames on his own clothes, he “ran down to the river” to try to ease the pain in his legs, but realized that the water was frozen and he could not get in, so he returned to the trailer. App. 441, 480-82. By the time he returned, the younger boy had managed to escape from the burning trailer, and suffered relatively minor injuries. App. 441, 446. The girl, however, did not make it out, and perished inside the trailer. App. 441-42. B.
Proceedings Below
Calder brought this product-liability lawsuit against Blitz in the U.S. District Court for the District of Utah in June 2007 on his own behalf and on behalf of his deceased daughter.
App. 47-67.1
The
The original complaint also named as plaintiffs the mother of Calder’s two sons (Judy Powell) and the mother of Calder’s deceased daughter (Sariah Parish), on their own behalf and on behalf of their children. App. 47-48. These plaintiffs, however, later withdrew voluntarily from the lawsuit. App. 460-61. Calder himself indicated below that he also wished to withdraw, but could not do so in light of a contract with his attorneys. “You know, I’m in a contract, and I have to do this. If there’s any money awarded, the attorneys are going to take it. All these guys are making millions of dollars off this. I’m not going 1
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complaint, as amended, set forth five causes of action: (1) strict liability, App. 74-79, (2) negligence, App. 79, (3) gross negligence, App. 81, (4) breach of warranty, App. 80-81, and (5) negligent misrepresentation, App. 79-80; see also App. 613 (“Mr. Calder has five claims against Blitz USA.”). Before trial, both parties filed numerous motions in limine and the district court (Campbell, J.) held hearings regarding the scope of the evidence to be presented. As relevant here, the court granted Blitz’ motion to exclude evidence of post-sale evaluation of flame arrestors, given Utah law requiring the existence of a product defect to be assessed by reference to the “state of the art” at the time the product was sold, not later. App. 176-77. As the court recognized, any potential probative value of evidence of such post-sale developments was “certainly … outweighed by [its] prejudicial value,” and hence the evidence was inadmissible under Fed. R. Evid. 403. App. 346. The case thereafter proceeded to trial. Calder’s theory of liability was that Blitz’ gasoline container was unreasonably dangerous, and hence defective, because it did not include a flame arrestor, which to see a penny of it.” App. 462; see also App. 463 (“I don’t even want to be here anymore.”). 10
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allegedly could have prevented a flame from traveling back into the container, causing it to explode. See, e.g. App. 361-62, 368-71, 374, 384, 613-17.
According to Calder, the benefits of adding such a safety
feature outweighed the costs. See, e.g., App. 361-65, 606-07. Pursuant to the court’s pretrial in limine ruling, Blitz structured its defense on proving that flame arrestors were not state-of-the-art in consumer gasoline containers in April 1999, when Calder purchased his Blitz container.
See, e.g., App. 549-52, 555, 557.
Blitz scrupulously
avoided addressing any evaluation of flame arrestors in such containers after April 1999. Over Blitz’ objection, and in violation of the district court’s pretrial in limine ruling, however, Calder elicited testimony that the Nation’s premier standards-setting body was currently (i.e. long after 1999) studying the use of flame arrestors in gasoline containers. See, e.g., App. 385-87, 572-73. With respect to damages, Calder presented a psychologist who testified that his physical and emotional scars from the incident had reduced his future earning capacity by 37-57%.
See App. 496-502.
Calder never presented any evidence, however, regarding any actual earnings at any point in his life. Indeed, he stipulated below that he 11
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would not present any such evidence, to avoid having Blitz point out to the jury that he had not paid his taxes. See App. 459. At the conclusion of Calder’s case-in-chief, Blitz moved for judgment as a matter of law on two grounds. First, Blitz explained that all of Calder’s claims except for negligent misrepresentation required proof that the Blitz gasoline container was unreasonably dangerous, which in turn required proof, among other things, “that the product was dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer or user in that community.” App. 526. As Blitz pointed out, Calder had presented “absolutely no evidence” that would allow a reasonable jury to conclude that an ordinary and prudent user would expect that it was safe to insert the nozzle of a gasoline container into a lit wood-burning stove and pour gasoline directly onto a fire. App. 526-27. Calder, in response, insisted that a reasonable juror could decide “that it is safe to start a fire with gasoline.” App. 530. Second, Blitz explained that Calder’s negligent misrepresentation claim required proof of a “false representation” of an “important fact.” App. 527. As Blitz pointed out, Calder “failed to present any evidence 12
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that Blitz made an affirmative representation that he could safely use the gasoline container in the manner that he did on the night of the fire.”
App. 528.
Calder, in response, stated that when Blitz puts a
gasoline container “into the market, it represents that it’s safe for its uses.”
App. 531.
When pressed by the district court to provide
authority for this proposition, Calder admitted that he had none. Id. The district court denied the motions, but reserved judgment on the question whether Blitz could be held liable for negligent misrepresentation for merely putting a product on the market. App. 532. As the court put it, “I’ve got to find a case that says—your theory is just that by putting it on the market, they made a misrepresentation?,” to which Calder’s counsel answered, “Yes, Your Honor.” Id. Neither Calder nor the court ever identified any such case. At the close of all the evidence, Blitz moved again for judgment as a matter of law on Calder’s strict liability, negligence, gross negligence, and warranty claims (on the ground that he had failed to prove that the gasoline container was unreasonably dangerous), and on Calder’s negligent misrepresentation claim (on the ground that he had failed to prove any false representation or actionable omission). 13
App. 602-03.
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The court, without analysis, summarily denied the motion. “I think given the standard of how I must judge the evidence at this stage, that there is sufficient evidence on all claims to go to the jury.” App. 604. The case thereafter went to the jury, which ultimately concluded that both Blitz and Calder were at fault for the tragedy, and apportioned liability 70% to Blitz and 30% to Calder. App. 188-90. The jury awarded Calder total damages of $6,167,943, of which they attributed $650,000 to Calder’s “Lost Earning Capacity.”
App. 190.
The district court thereafter reduced the verdict by 30% to account for Calder’s contributory fault, and entered judgment in Calder’s favor in the amount of $4,317,560.10. App. 243, 244, 280. Blitz timely renewed its motion for judgment as a matter of law, again arguing that Calder had not carried his burden of proving that (1) the gasoline container was unreasonably dangerous; and (2) Blitz had made a false representation or actionable omission so as to support a negligent misrepresentation claim. Blitz also moved for a new trial and remittitur, arguing, inter alia, (1) that the trial court had failed to give effect to Utah’s state-of-the-art doctrine by allowing Calder to present evidence of post-sale evaluation of flame arrestors, and refusing 14
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to instruct the jury on the doctrine, and (2) that the court should remit the jury’s award of future lost earnings damages to zero as impermissibly speculative. The district court denied both motions in a brief memorandum and order. App. 328-33. This appeal follows. SUMMARY OF ARGUMENT This is one of those cases that tends to bring the entire legal system into disrepute.
There is no denying that a terrible tragedy
occurred here, but that does not mean that a product manufacturer is to blame. The plaintiff admittedly did something “stupid” by inserting the nozzle of a plastic consumer gasoline container into a lit wood-burning stove and pouring gasoline directly onto a fire, causing a blaze that killed his daughter, but then sued the container’s manufacturer for allegedly making a defective product and was awarded millions of dollars by a jury. The judgment cannot stand as a matter of law for at least four reasons. First, the district court erred by denying Blitz’ motion for judgment as matter of law on Calder’s claims of strict liability, negligence, gross negligence, and warranty, all of which required him to
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prove that the gasoline container was unreasonably dangerous, and hence defective. Under settled Utah law, a product is not unreasonably dangerous if an ordinary and prudent user would appreciate, or the plaintiff himself actually appreciated, the danger of using the product in the way that allegedly caused the injury. Thus, as this Court—applying Utah law—has explained, a plaintiff cannot prove that a product is unreasonably dangerous, and hence defective, merely by proving that the manufacturer could have added a proposed safety feature. Proof that such a safety feature is feasible is necessary, but not sufficient, to establish a product defect. Here, Calder failed to prove that an ordinary and prudent user would expect, or that he himself actually expected, that it is safe to insert the nozzle of a gasoline container inside a lit wood-burning stove and pour gasoline directly onto a fire. Accordingly, the strict liability, negligence, gross negligence, and warranty claims fail as a matter of law, and the district court erred by submitting those claims to the jury. Second, the district court erred by denying Blitz’ motion for judgment as matter of law on Calder’s remaining claim for negligent misrepresentation.
To prove that claim, Calder was required to 16
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establish either (1) an affirmative misrepresentation of an important fact, or (2) an omission in light of a duty to disclose an important fact. Calder proved neither. Rather, he argued below that Blitz made an implicit representation of product safety by merely putting its gasoline container onto the market. That far-reaching theory, however, has no basis in Utah law. Accordingly, the negligent misrepresentation claim also fails as a matter of law, and the district court erred by submitting that claim to the jury. Third, the district court erred by allowing Calder to introduce evidence of a post-sale evaluation of flame arrestors and failing to instruct the jury on Utah’s “state of the art” doctrine.
The court
properly ruled before trial that evidence of post-sale evaluation of flame arrestors was inadmissible on grounds of relevance and prejudice, and Blitz structured its presentation accordingly to focus on the state of the art at the time of the gasoline container’s sale in April 1999, and to avoid reference to any post-sale evaluation of flame arrestor safety. In manifest violation of that ruling, however, Calder elicited testimony that the Nation’s premier standards-setting body, the American Society for Testing and Materials (ASTM) was currently (i.e., long after 1999) 17
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evaluating the use of flame arrestors in gasoline containers. And the district court compounded the error of allowing such testimony by refusing to instruct the jury on Utah’s “state of the art” doctrine, and thereby leaving unexplained Blitz’ failure to address industry safety standards and technological developments since 1999.
These errors,
individually and cumulatively, mandate a new trial. Fourth, the district court erred by refusing to remit the jury’s award of future lost earnings damages to zero. Under settled Utah law, Calder was required to prove such damages with “reasonable certainty.” Because he presented no evidence of what he earned at any point in his life, he necessarily failed to meet that standard: without evidence of any actual earnings, the jury had no basis (other than impermissible speculation) to award future lost earnings damages.
Indeed, in his
closing statement, Calder’s counsel expressly invited the jury to speculate on this score, stating that Calder might have earned “10,000, maybe 20,000, maybe 50,000 a year” in the past. Accordingly, at the very least, this Court should strike the portion of the damages award attributable to future lost earnings.
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STANDARDS OF REVIEW This Court reviews the denial of a motion for judgment as a matter of law de novo, without any deference to the district court. See, e.g., Burrell v. Armijo, 603 F.3d 825, 832 (10th Cir. 2010). This Court reviews evidentiary rulings for abuse of discretion. See, e.g., SEC v. Peters, 978 F.2d 1162, 1172 (10th Cir. 1992); Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647-54 (10th Cir. 1991). “This court reviews de novo whether, as a whole, the district court’s jury instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards.” Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010) (internal quotation and brackets omitted). “A defendant is entitled to an instruction on his theory of the case if the instruction is a correct statement of the law, and if he has offered sufficient evidence for the jury to find in his favor. We review a district judge’s refusal to issue a requested instruction under this standard for abuse of discretion.” Id.; see also Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293, 1298 (10th Cir. 2004); Perlmutter v. United States Gypsum Co., 4 F.3d 864, 871-72 (10th Cir. 1993).
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This Court “will uphold a jury’s award of damages unless it is clearly erroneous or there is no evidence to support the award.” Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1076 (10th Cir. 2002). ARGUMENT I.
The District Court Erred By Denying Blitz’ Motion For Judgment As A Matter Of Law On The Strict Liability, Negligence, Gross Negligence, And Warranty Claims Where Calder Failed To Prove That The Gasoline Container Was Unreasonably Dangerous. The judgment must be reversed, first and foremost, because
Calder did not and could not prove that the Blitz gasoline container was “unreasonably dangerous,” and hence defective, under Utah law. To meet that standard, Calder was required to show, among other things, that “the product [is] dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer or user of that
product
in
that
community
considering
the
product’s
characteristics, propensities, risks, dangers and uses together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer.” Utah Code § 78B-6-702 (emphasis added). As this Court has explained, this standard—which applies to Calder’s
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strict liability, negligence, gross negligence, and warranty claims2— establishes a two-prong test: (1) an “objective” prong, based on the expectations of an ordinary and prudent user, and (2) a “subjective” prong, based on the expectations of the particular user at issue. Henrie, 502 F.3d at 1232-33; Brown, 328 F.3d at 1282. Calder cannot satisfy either prong of that test, much less (as required) both.
The quoted statutory definition of “unreasonably dangerous” applies by its terms to Calder’s strict-liability claim, which was based on two distinct theories: (1) defective design and (2) defective warning. See, e.g., App. 206. Under both theories, Calder was required to prove that the Blitz gasoline container was unreasonably dangerous. See id. As a matter of law and logic, the statutory definition of unreasonably dangerous also applies to Calder’s negligence, gross negligence, and warranty claims: as this Court has explained, there is no reason to think that Utah would give “unreasonably dangerous” a different meaning in the context of these other causes of action. See Henrie, 502 F.3d at 1236 (noting that “Utah has defined defective condition and unreasonably dangerous for general purposes in its objective test for strict liability,” and affirming a grant of summary judgment for the defendant on strict liability, negligence, and warranty claims for failure to satisfy that definition) (emphasis added); see also Brown, 328 F.3d at 1282-83 (same); see generally Salt Lake City Corp. v. Kasler Corp., 855 F. Supp. 1560, 1571-72 (D. Utah 1994). Indeed, the parties agreed below that Calder’s strict liability, negligence, and warranty claims under Utah law all required him to prove “that the Blitz container was unreasonably dangerous.” App. 296; see also App. 249, 526-27. It follows that, if Calder did not and could not satisfy the statutory definition of “unreasonably dangerous,” all of these claims fail as a matter of law. See App. 526. 2
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In particular, Calder did not and could not prove either that an “ordinary and prudent” user would believe, or that he himself actually believed, that it is safe to insert the nozzle of a gasoline container inside a lit wood-burning stove and pour gasoline directly onto a fire. To the contrary, he freely acknowledged that he knew that it was “stupid” to use a gasoline container in this manner. App. 364, 372, 610, 632, 649. Thus, instead of seeking to establish both objective and subjective consumer expectations, Calder based his case on the proposition that Blitz’ gasoline container was unreasonably dangerous because Blitz could have added a flame arrestor for a relatively small amount of money, and the safety-related benefits of that feature outweighed its cost.
See App. 361 (Calder’s opening statement); App. 606, 613-17
(Calder’s closing statement); App. 607 (“Blitz could have saved [Calder’s daughter] but they chose to save a nickel instead.”). As this Court has explained, however, a plaintiff cannot prove that a product is unreasonably dangerous under Utah law by merely inviting the jury to engage in such a risk-utility analysis.
Indeed, that is
precisely the lesson of this Court’s decisions (applying Utah law) in Henrie and Brown. In both of those cases, the plaintiff tried to prove 22
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that a product was unreasonably dangerous by merely presenting evidence of a feasible safety feature that allegedly would have prevented the injury, and this Court rejected that approach as a matter of law. See Henrie, 502 F.3d at 1234-35; Brown, 328 F.3d at 1280-81. Brown involved a riding lawnmower that, while being operated in reverse, ran over a child; the plaintiff argued that the vehicle should have been equipped with an inexpensive safety feature that would automatically shut down the blades when the mower was in reverse. 328 F.3d at 1276-77. This Court held that this theory did not satisfy the plaintiff’s burden as a matter of law, because “[a]n ordinary and prudent user of the mower would have appreciated the danger arising from the operation of the mower blades while the tractor was moving in reverse.” Id. at 1283. Similarly, Henrie involved a large, heavy device used for painting aircraft that, while being operated, injured a painter’s arm and shoulder; the painter argued that “the hazard could have been easily eliminated by placing the rotation points around the part’s center of gravity and/or by installing a worm gear drive.” 502 F.3d at 1230. This Court again held that this theory did not satisfy the plaintiff’s burden 23
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as a matter of law, because users of the product (including the plaintiff himself) were “fully aware” of the danger of using it in the way that caused the plaintiff’s injury. Id. at 1234. The lesson of Brown and Henrie, in short, is that a plaintiff cannot establish that a product is unreasonably dangerous under Utah law based “solely on … evidence of a safer and economical alternative design.” Henrie, 502 F.3d at 1234; see also Brown, 328 F.3d at 1279-83. Rather, “[i]n addition to a safer alternative design, [the plaintiff] must show ‘the product was dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer or user of that product in that community.’” Henrie, 502 F.3d at 1233 (citing Utah Code § 78-15-6(2), subsequently renumbered as Utah Code § 78B-6-702) (emphasis added); see also id. (“[E]vidence of a safer and economical alternative design … is an essential part of [a plaintiff’s] claim, [but] by itself it is not enough.”). If an ordinary and prudent user, and/or the plaintiff himself, appreciates the danger, a product is not “unreasonably dangerous” as a matter of law, even if “‘a safer model is available.’” Brown, 328 F.3d at 1283 (quoting Slisze v. Stanley-Bostitch, 979 P.2d 317, 320 (Utah 1999)); see also id. at 1280 (“The issue, roughly 24
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speaking, is whether an ordinary person would think the product is less dangerous than it is.”). Indeed, both Henrie and Brown affirmed grants of summary judgment in the defendant’s favor on this ground. Blitz is entitled to judgment as a matter of law in this case for the same reason as the defendants in Henrie and Brown: the plaintiff presented no evidence that would allow a reasonable jury to conclude that an ordinary and prudent user, or even the plaintiff himself, failed to appreciate the danger of using the product in the manner that allegedly caused the injury. Like the plaintiffs in those cases, Calder attempted to bypass the consumer expectations requirement altogether, and move directly to a risk-utility test. That attempt fails as a matter of law. See Henrie, 502 F.3d at 1233; Brown, 328 F.3d at 1280. When Blitz first moved for judgment as a matter of law on this ground at the conclusion of Calder’s case-in-chief, the district court provided no substantive reasons for denying the motion. Rather, the court simply declared that “I think there is sufficient evidence to go to the jury” without identifying any such evidence. App. 532. The same thing happened when Blitz again moved for judgment as a matter of law at the close of all the evidence. App. 604. 25
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When Blitz moved yet again for judgment as a matter of law after the verdict, here is what the court (after quoting the statutory definition of “unreasonably dangerous” under Utah law) had to say: Glen Stevick, Plaintiff’s engineering expert, testified that a flame arrestor would have prevented the explosion that injured Mr. Calder and killed his daughter. Dr. Stevick also testified that other manufacturers have been putting flame arrestors in consumer gas cans since the 1970’s. Cy Elmburg, the owner and CEO of Blitz at the time the gas container that is the subject of the litigation was made, told the jury that he knew since the 1960’s that people had been burned by gasoline or gasoline vapors found with the use of gasoline containers. Considering this evidence in the light most favorable to the jury verdict, the court concludes that there is ample basis in the record to support the jury’s finding that the Blitz gas container was unreasonably dangerous under Utah law. App. 330-31 (internal quotations and citations omitted). The district court thereby made the very mistake of law against which this Court warned in Henrie and Brown: allowing plaintiffs to prove that a product is “unreasonably dangerous” under Utah law merely by showing the feasibility of “a safer and economical alternative design.” Henrie, 502 F.3d at 1233-34; see also Brown, 328 F.3d at 127983.
The district court never addressed Blitz’ argument that Calder
failed to prove that the gasoline container was more dangerous than 26
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expected—which, as noted above, is necessary to prove that a product is unreasonably dangerous under Utah law. With respect to the Stevick testimony, Stevick did not testify that an ordinary and prudent user would believe that it is safe to insert the nozzle of a gasoline container inside a lit wood-burning stove and pour gasoline directly onto a fire. Rather, his testimony related to the riskutility analysis; he opined that a flame arrestor was both a feasible and worthwhile safety feature. See App. 379-84. As explained above, such testimony is necessary, but not sufficient, for a plaintiff to prove that a product is unreasonably dangerous under Utah law.
Indeed, if
anything, Stevick’s testimony only underscores that an ordinary and prudent user would not consider it safe to do what Calder did here: Stevick admitted that he did not try to re-enact the incident because “[t]here’s safety concerns involved” and “it would be dangerous to do that.” App. 394-95, 402. Just as the plaintiffs in Henrie and Brown could not prevail as a matter of law by simply proving the feasibility and desirability of particular safety features, Calder cannot rely on the Stevick testimony to prevail here.
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The district court’s reliance on the Elmburg testimony is equally misplaced.
Again, Elmburg did not testify that an ordinary and
prudent user would believe that it is safe to insert the nozzle of a gasoline container inside a lit wood-burning stove and pour gasoline directly onto a fire.
Rather, as the district court noted, Elmburg
testified that “he knew since the 1960’s that people had been burned by gasoline or gasoline vapors found with the use of gasoline containers.” App. 331 (citing App. 646). But Elmburg’s knowledge that a gasoline container could be used in a dangerous way does not prove that ordinary and prudent users were unaware of this danger. Indeed, as this Court noted in Henrie, the more obvious the danger associated with a product, then the less likely it is to be unreasonably dangerous under Utah law, because the more likely it is that an ordinary and prudent user would appreciate the danger. See 502 F.3d at 1234-35. In response to Blitz’ renewed motion for judgment as a matter of law, Calder also cited the trial testimony of Larry Chrisco, a former Blitz employee. The district court did not rely on this testimony in its post-trial ruling, and for good reason. Chrisco simply agreed that “an explosion proof gas can would be a safer product” than Blitz’ existing 28
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product, App. 515; the Blitz gasoline container might be used on construction sites where it might be exposed to sparks, App. 518-20; Blitz had done consumer market studies before April 1999, App. 523; and Blitz had been sued in 1995 for injuries allegedly caused by an exploding gasoline container, App. 535. Again, none of this testimony has any bearing on whether an ordinary and prudent user would believe that it is safe to insert the nozzle of a gasoline container inside a lit wood-burning stove and pour gasoline directly onto a fire. Indeed, Chrisco opined that “[c]ommon sense says you don’t do that.” App. 512; see also App. 569 (“[Y]ou would never want to pour gas on a fire.”).3
Chrisco further explained that Blitz had sold approximately fifty million plastic gasoline containers of the model at issue here by 1999, and had received only one claim of an alleged flashback explosion, App. 549-50—and that the company’s expert had concluded that the container there had not in fact exploded, so that “[i]t was nothing that a flame arrestor would have changed,” App. 551; see also App. 551-52 (Chrisco testimony that “based upon Blitz’s knowledge of the real world experience” with its plastic gasoline containers, the company did not “see any need to investigate adding a flame arrestor”); App. 552 (Chrisco testimony that there were no federal, state, or local laws or regulations, or industry standards, “recommending or requiring a flame arrestor on plastic portable gas containers” as of 1999); App. 564-66 (Chrisco testimony that the gasoline container at issue here complied with all industry safety standards as of 1999). Chrisco also testified that, in deciding whether to add an alleged safety feature like a flame arrestor, it would have been “important to consider not just the potential benefits of the addition, but also any safety down sides or 3
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Calder also sought to defend the judgment in his favor below by citing his own trial testimony that he had seen his father, his Boy Scout leader, and his friends use gasoline to start fires.
See App. 410-11.
Again, the district court did not rely on this testimony in its post-trial ruling, and for good reason.
As an initial matter, Calder did not
describe the circumstances under which these people used the gasoline to “start a fire,” App. 411, so it is unknown whether those circumstances are substantially similar to this case so as to be relevant at all. See, e.g., Ahrens v. Ford Motor Co., 340 F.3d 1142, 1145-46 (10th Cir. 2003). It is possible that some or all of these people poured gasoline on the wood before lighting the fire. Certainly, Calder never testified to having seen anyone do what he admits to having done here: insert the nozzle of
unintended functional or safety consequences.” App. 558. He explained that a rigid spout with a flame arrestor left “a lot to be desired” as compared to the flexible Blitz spout, because “you’re going to have a lot more spillage” without a flexible spout, especially when pouring gasoline into small engines like those in chainsaws and lawnmowers. App. 538-39; see also App. 562-63 (same); App. 559 (noting that spillage is “a safety problem”). He further explained that a flame arrestor of the type being urged by Calder could raise safety issues by tending to decrease pour rates and gum up the screen, and “could give a user a pretty false security … that it’s okay to pour gas on a fire or start a fire with gasoline.” App. 558; see also App. 558-60. 30
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a gasoline container inside a lit wood-burning stove to pour gasoline directly onto a fire in a confined space with young children nearby. In any event, Calder’s testimony regarding these other people does not establish that they (much less ordinary and prudent users generally) believe that it is safe to insert the nozzle of a gasoline container inside a lit wood-burning stove and pour gasoline directly onto a fire. People sometimes do things they know perfectly well to be “stupid” and unsafe—as Calder himself admitted he did here. App. 649 (“[P]eople do it all the time. It’s really stupid.”). At most, Calder’s testimony that he had seen friends and relatives use gasoline to start fires might relate to his subjective belief that it was safe to do so. As he stated, “I never … saw a bad situation happen from it.” App. 411 (emphasis added). But Calder’s own expectations, even if formed from observations of others, relate to the subjective prong of the analysis, not the objective prong. See Brown, 328 F.3d at 1280 (“The state of mind of the product’s actual user, or victim, is irrelevant” in assessing the objective prong). Indeed, Calder admitted below that he actually knew that it was “stupid” to use a gasoline container to pour gasoline directly onto a fire, 31
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and that he made a “mistake” by doing so. App. 609-10, 649; see also App. 453 (“I accept some of the responsibility.
I wish I would have
made different choices that night.”); App. 649 (“You … splash some gas on a fire, it could turn into a bad situation quick.”).
His counsel
(presumably to try to defuse the point) highlighted that admission to the jury in both opening and closing statements. See App. 364, 372, 614-15, 626, 632.
That point alone should dispose of this case: if a
plaintiff appreciates the danger of using a product in a particular way, he can hardly contend that the product is unreasonably dangerous when used that way. See, e.g., Henrie, 503 F.3d at 1233. Or, as this Court put it in Brown, a plaintiff’s own knowledge “can only work against a plaintiff’s claim that a product is unreasonably dangerous because it increases the extent of the perceived danger beyond that contemplated by the ordinary and prudent person.” Brown, 328 F.3d at 1282 (emphasis added). Because Calder failed to prove that inserting the nozzle of a gasoline container inside a lit wood-burning stove and pouring gasoline directly onto a fire was both objectively and subjectively more dangerous than expected, he failed to satisfy the statutory requirements 32
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for establishing that the Blitz gasoline container was unreasonably dangerous, and hence defective, under Utah law. See Brown, 328 F.3d at 1280 (“[A] product is not unreasonably dangerous unless all the statutory requirements are satisfied.”) (emphasis in original); Henrie, 502 F.3d at 1233-34 (same). Accordingly, Calder failed to establish his claims of strict liability, negligence, gross negligence, and warranty as a matter of law, and Blitz is entitled to judgment as a matter of law on those claims. It necessarily follows that the general verdict in Calder’s favor, see App. 188-90, cannot stand.
Although Calder also presented another
theory of liability (negligent misrepresentation) that did not depend on a finding that the Blitz gasoline container was unreasonably dangerous, and hence defective, there is no way of knowing whether the general verdict was based on that theory.
“[W]here a jury has returned a
general verdict and one theory of liability upon which the verdict may have rested was erroneous, the verdict cannot stand because one cannot determine whether the jury relied on the improper ground.” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir. 1996) (citing Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 33
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19, 29-30 (1962)); see also Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1255 (10th Cir. 1999). Unless this Court can say with “absolute certainty” that the erroneously submitted claims did not affect the verdict, this Court must reverse the judgment. Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1301 (10th Cir. 1989); see also Allen, 241 F.3d at 1298; Anixter, 77 F.3d at 1229. Given that Calder’s main theory at trial was that the Blitz gasoline container was unreasonably dangerous, it goes without saying that this Court cannot be “absolutely certain” that the jury did not rely on that theory, and hence the entire judgment in Calder’s favor necessarily falls along with the strict liability, negligence, gross negligence, and warranty claims. II.
The District Court Erred By Denying Blitz’ Motion For Judgment As A Matter Of Law On The Negligent Misrepresentation Claim Where Calder Failed To Prove Any False Representation Or Actionable Omission. Nor, even apart from the general-verdict rule, can the judgment
stand based on Calder’s negligent misrepresentation claim, because that claim also fails as a matter of law. Calder alleged that Blitz was liable because it negligently misrepresented the safety of its gasoline containers.
App. 79-80.
He failed, however, to identify any false
representation or actionable omission, and instead relied at trial on the 34
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theory that Blitz implicitly represented the safety of its gasoline containers merely by putting them on the market. See, e.g., App. 53031, 620-21. That theory is incorrect as a matter of law, and hence the district court erred by denying Blitz’ motion for judgment as a matter of law on this ground too. Under Utah law, a negligent misrepresentation occurs where “(1) a party carelessly or negligently makes a false representation ‘expecting the other party to rely and act thereon,’ (2) the plaintiff actually relies on the statement, and (3) suffers a loss as a result of that reliance.” Moore v. Smith, 158 P.3d 562, 573 n.12 (Utah Ct. App. 2007) (quoting Smith v. Frandsen, 94 P.3d 919, 922-23 (Utah 2004)); see also Atkinson v. IHC Hosps., Inc., 798 P.2d 733, 737 (Utah 1990).
An
omission can qualify as a misrepresentation only where the defendant has a duty to disclose an important fact. See Smith, 94 P.3d at 923; Moore, 158 P.3d at 573 n.12. Calder’s negligent misrepresentation claim fails as a matter of law for the simple reason that he never alleged or proved any false representation or actionable omission—much less that he actually relied on any such representation or omission. 35
See, e.g., English v.
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Suzuki Motor Co., No. 95-4177, 1997 WL 428565, at *6-7 (10th Cir. July 30, 1997) (unpublished) (applying Utah law) (affirming judgment as a matter of law for defendant on negligent misrepresentation claim where plaintiff failed to allege or prove any false representation or duty to make a representation); Smith, 94 P.3d at 923-27 (same); Orient Mineral Co. v. Bank of China, 506 F.3d 980, 1005 (10th Cir. 2007) (same; applying Utah law) (citing Smith, 94 P.3d at 922-23 & n.1); Rhodes v. Wells Fargo Home Mortg., No. 2:10-CV-393, 2010 WL 3222414, at *4 (D. Utah Aug. 16, 2010) (granting motion to dismiss negligent misrepresentation claim where plaintiff “never specifically alleges what any of those material facts were, nor how he subsequently relied on such facts”). In response to Blitz’ motion for judgment as a matter of law on this ground, Calder argued that “when Blitz puts a [gas] can into the market, it represents that it’s safe for its uses.” App. 531. In response to a question from the court, Calder confirmed that his position was that Blitz made a negligent misrepresentation “just that by putting [its gasoline container] into the market.” Id. Calder conceded, in response to the court’s request for authority to support that proposition, that he 36
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did “not have a case to back that up.” Id. The court nonetheless denied Blitz’ motion, purporting to “reserve … the one question of the misrepresentation.” App. 532; see also id. (“I’ve got to find a case that says
…
just
by
putting
it
on
the
market,
they
made
a
misrepresentation.”); id. (“I have to look at that.”). Neither Calder nor the court, however, ever identified any such case. When Blitz renewed its motion for judgment as a matter of law on this ground at the close of all the evidence, and emphasized that “there’s been no analysis of the law regarding whether simply placing something
into
the
marketplace
becomes
an
affirmative
representation,” App. 603, the court summarily denied the motion without revisiting that legal issue, App. 604. The court thereby allowed Calder to present this theory of liability to the jury. See, e.g., App. 613, 620-21. In his closing statement, Calder argued that Blitz had made a representation merely by putting the container in stores for purchase. App. 621 (“A negligent misrepresentation requires that Blitz had represented some important fact was true.
And that fact that he
thought was true was that this gas can is safe for me to use. He bought it at the store.”) (emphasis added). 37
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When Blitz again renewed its motion for judgment as a matter of law on the negligent misrepresentation claim after the verdict, the court again summarily denied it. Without citation to either the law or the record, the court simply asserted that “[t]here is sufficient evidence in the record for the jury to have found that Blitz misrepresented that its gas containers were safe, and that Mr. Calder relied on that misrepresentation when he used the gas container.” App. 331. As the district court apparently suspected when first addressing the issue, Calder’s far-fetched theory of negligent misrepresentation has no basis in Utah law. Calder provided no support for his theory that Blitz made an actionable implicit representation by merely placing the product on the market.
That is no surprise, because Utah law is
squarely to the contrary. See, e.g., English, 1997 WL 428565, at *7 (affirming judgment as a matter of law for defendant on Utah-law negligent misrepresentation claim where plaintiff failed to allege or prove any false representation or duty to make a representation). In response to Blitz’ renewed motion for judgment as a matter of law after the jury verdict, Calder argued for the first time that his negligent misrepresentation claim was based on the gasoline container’s 38
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warnings, as opposed to the mere fact of putting the container on the market.
In particular, Calder argued that the warnings not only
(1) affirmatively represented that the container was safe, but also (2) omitted important facts regarding the container’s safety.
See
App. 299-301. As an initial matter, Calder waived these warning-based negligent misrepresentation arguments by failing to present them to the jury. As noted above, Calder acknowledged at trial that his negligent misrepresentation claim was based on the theory that Blitz made a false representation of safety “just by putting [a container] into the market.” App. 531; see also App. 621 (making this point to the jury). Having never argued prior to the jury verdict that his negligent misrepresentation claim was based on the container’s warnings, Calder is in no position now to defend that claim based on those warnings. “When plaintiff obtains a jury verdict in his favor on a legally inadequate theory, he cannot urge a wholly new theory on appeal to support that verdict.” McPhail v. Municipality of Culebra, 598 F.2d 603, 607-08 (1st Cir. 1979).
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negligent
misrepresentation theories fail on the merits as a matter of law. With respect to his belated theory that the warnings make an affirmative misrepresentation of safety, see App. 300, the short answer is that they do not. The warnings do not say that the container is safe to use in any and all circumstances; to the contrary, the warnings underscore that the container is not safe to use in any and all circumstances: “VAPORS CAN BE IGNITED BY A SPARK OR A FLAME SOURCE MANY FEET AWAY • KEEP AWAY FROM FLAME, PILOT LIGHT, STOVES, HEATERS, ELECTRIC MOTORS AND OTHER SOURCES OF IGNITION.”
App. 651; see also id. (“DANGER—VAPORS CAN
EXPLODE.”).
Needless to say, this warning does not affirmatively
represent that it is safe to insert the container’s nozzle inside a lit woodburning stove and pour gasoline directly onto the fire.
Moreover,
Calder never established that he read the warnings in the first place (and strongly suggested that he did not), see App. 454, 478-79, so by definition he failed to establish that he relied on those warnings. Calder’s
belated
theory
of
negligent-misrepresentation-by-
omission fares no better. According to Calder, the Blitz container omits 40
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the “important fact” that “the container is subject to flashback.” App. 301. As noted above, however, the container expressly warns that gasoline vapors are flammable, and that the container accordingly should be kept away from “SOURCES OF IGNITION,” specifically including “STOVES.” App. 651. That warning is not rendered defective just because it does not detail the myriad adverse consequences that can flow from inserting the nozzle of a gasoline container inside a lit wood-burning stove and pouring gasoline directly onto a fire—just as a warning that someone should not walk across a highway is not rendered defective because it does not say that a consequence of doing so may be getting hit by a truck.
Moreover, an omission is actionable as a
negligent misrepresentation under Utah law only if the defendant had a legal duty to disclose an important fact to the plaintiff. See, e.g., Smith, 94 P.3d at 923.
Here, Calder never alleged below (not even in his
response to Blitz’ post-trial motions on the negligent misrepresentation claim, see App. 301), that Blitz had any such legal duty. Accordingly, the district court erred by denying Blitz’ motion for judgment as a matter of law on the negligent misrepresentation claim, and by submitting that claim to the jury. It follows, as a result of that 41
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error and the error described in Part I of this brief, that Blitz is entitled to judgment as a matter of law across the board in this case, because all five of the claims that Calder submitted to the jury (strict liability, negligence,
gross
negligence,
warranty,
and
negligent
misrepresentation) fail as a matter of law. At the very least, even if only the negligent misrepresentation claim failed as a matter of law and the other claims did not, the general verdict in Calder’s favor, see App. 188-90, cannot stand.
As noted
above, the general rule is that if a district court errs by submitting a particular claim to the jury, and the jury returns a general verdict that might have been based on that claim, the general verdict must fall. See, e.g., Allen, 241 F.3d at 1298; Morrison Knudsen, 175 F.3d at 1255; Anixter, 77 F.3d at 1229; Farrell, 866 F.2d at 1301. It is only where this Court can determine with “‘absolute certainty’” that the jury did not rely on the legally erroneous theory it may sustain the general verdict. Allen, 241 F.3d at 1298 (quoting Farrell, 866 F.2d at 1301); see also Anixter, 77 F.3d at 1229. Here, it is impossible to say with “absolute certainty” that the jury did not base its general verdict on the negligent misrepresentation 42
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claim. The district court instructed the jury that Calder must prove, among other things, that “Blitz U.S.A. represented to [him] that an important fact was true.” App. 220 (Jury Instruction No. 29). The court left it to the parties to “argue what that [fact] was,” App. 640, and—as noted above—Calder argued that the “important fact” was an implicit representation of safety made by putting the container on the market, App. 621. During deliberations, the jury sent a note to the court: “We have a question on instruction number 29.
Could you clarify Negligent
Misrepresentation or, number one, what is the important fact? Is it that the can was represented as safe?” App. 635. The court declined to give any further instructions clarifying the claim, telling the jury only that “the fact must indeed be important.” Id. The jury here could have imposed liability on the negligent misrepresentation claim without finding Blitz liable on any of the other claims.
In sharp contrast to all the other claims, the negligent
misrepresentation claim did not require the jury to find that the Blitz gasoline container was unreasonably dangerous.
See App. 639-41.
Accordingly, the jury could have decided that Calder failed to prove that 43
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the Blitz gasoline container was unreasonably dangerous (and therefore failed to prove his strict liability, negligence, gross negligence, and warranty claims), but nonetheless imposed liability for negligent misrepresentation. Because this Court cannot be “absolutely certain” that the jury did not base its verdict on this legally invalid claim, Allen, 241 F.3d at 1298; Anixter, 77 F.3d at 1229; Farrell, 866 F.2d at 1301, the general verdict and the judgment necessarily fall along with the negligent misrepresentation claim. III. The District Court Erred By Allowing Calder To Introduce Evidence Of A Post-Sale Evaluation Of Flame Arrestors And Failing To Instruct The Jury On Utah’s “State Of The Art” Doctrine. In addition to allowing Calder to proceed to trial based on legally erroneous theories, the district court erred in the conduct of the trial by failing to give effect to Utah’s “state of the art” doctrine. Under that doctrine, “a product may not be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.”
Utah Code § 78B-6-703(1)
(emphasis added). Whether a product is defective, in other words, is to 44
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be determined by reference to the “state of the art” at the time the product was sold, not by reference to any post-sale evaluation. The district court here failed to give effect to the “state of the art” doctrine in two ways.
First, the court allowed Calder to introduce
evidence of a post-sale evaluation of flame arrestors in violation of its own pretrial ruling excluding such evidence. And second, the district court refused to instruct the jury on the doctrine, leaving jurors in the dark as to why Blitz failed to present any evidence of safety assessments since 1999. These errors, individually and in combination, severely prejudiced Blitz, and at the very least require a new trial. Each error is discussed in turn below. A.
Evidence of Post-Sale Evaluation
In light of Utah’s “state of the art” doctrine, Blitz moved in limine before trial to preclude Calder from introducing evidence of any postsale evaluation of flame arrestors to try to prove that the Blitz gasoline container was defective.
The district court granted the motion,
explaining that “any probative value” of a post-sale evaluation would be
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“very slight and it certainly would be outweighed by the prejudicial value.” See App. 341-46.4 Based on the district court’s pretrial evidentiary rulings, Blitz prepared for trial by focusing on April 1999 as the key time for proving that its gasoline container was not defective.
See, e.g., App. 269-70,
549-52, 555, 557-58. If the product was not defective “at the time [it] was sold” in April 1999, it could not be deemed defective post hoc by reference to post-1999 developments. See Utah Code § 78B-6-703(1). As noted above, Calder’s main theory at trial was that the Blitz gasoline container was unreasonably dangerous because Blitz could and should have added a flame arrestor. Accordingly, much of the evidence at trial focused on whether the addition of a flame arrestor was commercially practicable and standard in the industry.
Under the
district court’s pretrial rulings, Calder was not entitled to introduce evidence of any evaluation after April 1999.
Unfortunately, Calder
In a related ruling, the court also limited evidence of post-sale incidents and lawsuits, rejecting Calder’s argument that such evidence was relevant to show notice of a defect. As the court explained, “I am not going to allow anything after 1999 because I believe the case law in Utah and the Tenth Circuit relying on Utah law is quite careful to say that it does not come in, because the notice received by a manufacturer after the defect is allegedly in the product is not relevant.” App. 352. 4
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violated those rulings at trial, and the district court failed to redress those violations. In particular, over Blitz’ objection and without explanation, the district court allowed Calder to elicit testimony from two witnesses (his own engineering expert, Glen Stevick, see App. 385-87, and former Blitz employee Larry Chrisco, see App. 572-73) that the American Society for Testing and Materials (ASTM), the premier body in the Nation for the development of industry safety standards, is currently studying the use of flame arrestors on gasoline containers.
Indeed, Calder elicited
testimony that the ASTM has been studying the issue for “at least five plus years,” and had hired a combustion testing organization, the Worcester Polytechnic Institute (WPI), “to do some testing.” App. 38687; see also App. 572. This evidence was manifestly inadmissible in light of the district court’s pretrial rulings, given that the ASTM study was launched long after 1999.
And the evidence was prejudicial to
Blitz, since it tended to legitimate Calder’s entire flame arrestor theory—even though to this day neither the ASTM nor any other standard-setting entity or governmental body has ever recommended or required flame arrestors for consumer gasoline containers. 47
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By improperly raising the post-1999 ASTM study, Calder put Blitz in a bind.
Although the ASTM “task force has made absolutely no
recommendation to require or suggest the addition[] of flame arrest[o]rs” to gasoline containers, App. 576, Blitz could not realistically respond to that evidence without opening the door into even further consideration of the ASTM proceedings and potentially other post-sale matters.
“[W]e’re trying to keep the door closed, but I don’t think
[Calder] is respecting the Court’s ruling on that.” Id. Blitz noted that it “has an individual who is on that [ASTM] task force and is well prepared to come and testify in great detail about the task force’s activity,” id., but would refrain from presenting that individual in light of the court’s pretrial ruling.
Nor could the district court cure the
problem by giving the jury “a description of what the A.S.T.M. is and what they are doing now.”
App. 577.
Any such “cure” would only
exacerbate the problem by highlighting the ASTM proceeding, which was legally irrelevant and inadmissible in light of Utah’s state-of-theart doctrine and the court’s pretrial ruling on which Blitz structured its defense. The district court never should have allowed Calder to put
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Blitz in this untenable situation, and its failure to uphold Blitz’ objections to the ASTM testimony was reversible error. B.
Refusal to Instruct Jury
The district court only compounded that error by refusing to instruct the jury on the “state of the art” doctrine. As noted above, Blitz crafted its trial strategy on the understanding that any evaluation of flame arrestors after 1999 was legally irrelevant to the question whether the gasoline container at issue here was defective.
In
particular, Blitz presented evidence that the state of the art in the industry in 1999 was not to require flame arrestors, see App. 549-52, 555, 557-58, and was careful not to introduce evidence regarding any evaluation of flame arrestors or other alleged safety features after 1999. Thus, Blitz made no attempt to show that governmental or standardssetting bodies (including the ASTM) have neither required nor recommended the use of flame arrestors in gasoline containers in the years since 1999. By refusing to give the jury Blitz’ proposed instruction on Utah’s “state of the art” doctrine, the district court effectively penalized Blitz for following the doctrine (and the court’s own pretrial ruling in limine),
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because the absence of an instruction on the significance of 1999 left the jury to wonder why Blitz had presented no evidence regarding any evaluation of flame arrestors over the past decade. In addition, such an instruction would have helped cure the prejudice from Calder’s elicitation of testimony regarding the post-sale ASTM study. Without an instruction, the “state-of-the-art” doctrine became not only meaningless, but indeed a trap for Blitz. The “state of the art” instruction proposed by Blitz was drawn verbatim from the Model Utah Jury Instructions (MUJI): “[I]f you find that the product as designed and manufactured conformed to the state of the art in the industry at the time of sale, then you may consider this as evidence that the product was not defective or unreasonably dangerous.” App. 154 (citing MUJI 2d CV1053; emphasis added); see also Gudmundson v. Del Ozone, 232 P.3d 1059, 1071 (Utah 2010) (“Under the Utah Product Liability Act, a product is defective if it is ‘unreasonably dangerous’ at the time of sale by the manufacturer.”) (citing Utah Code § 78B-6-703(1); emphasis added). Blitz emphasized that its proposed instruction was “extremely important,” because of “the way the evidence was presented in this trial, where the focus as it 50
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related to this issue was almost entirely upon what was known as of April 1999.” App. 640-41. Neither Calder nor the district court denied that the proposed instruction accurately stated the law. Rather, Calder objected to the proposed instruction on the following ground: [T]here is plenty of evidence in the record to say that Blitz knew about flame arrestors, flashbacks, that other consumer gas cans as of 1999 had flame arrestors in them, and to put a state of the art instruction in that case with the evidence that the jury has heard is a comment on the weight of the evidence. App. 644. That objection is meritless. To tell jurors that they must assess defect by reference to the state of the art in 1999 is not to “comment on the weight of the evidence”; rather, it is to give them the correct legal framework for analyzing the evidence in the first place. Nonetheless, the district court denied the proposed instruction on the ground that Instructions “16 and 17 cover the issues in our case, and to put in state of the art would be contrary and confusing.” Id.5
5
Instruction 16 provided in full as follows: The gas can had a defect if: (1) as a result of its design, the gas can failed to perform as safely as an ordinary user would expect when the gas can was used in a manner reasonably foreseeable to the manufacturer; and 51
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But Instructions 16 and 17 did not tell the jury to disregard evidence of post-sale evaluations.
Rather, as relevant here, those Instructions
stated only that the gasoline container was defective if a safer design was feasible “at the time the gas can was designed.” App. 207. Given the importance of this issue, Blitz should not have been put in the position of hoping that the jury would draw a negative inference from the temporal component in the definition of defective design. Indeed, because the proposed instruction accurately stated the law and was amply supported by the evidence, Blitz was “entitled” to the instruction. See, e.g., Pinson, 542 F.3d at 831; Allen, 241 F.3d at 1297; Perlmutter, 4 F.3d at 872; cf. Clarksville-Montgomery County Sch. Sys. v. United States Gypsum Co., 925 F.2d 993, 1005-06 (6th Cir. 1991) (state-of-the-art instruction warranted where there was “ample testimony regarding the customary methods, standards and techniques (2) at the time the gas can was designed, a safer alternative design was available that was technically and economically feasible under the circumstances. App. 207 (Jury Instruction No. 16). Instruction 17 provided in full as follows: In deciding whether the gas can was defective, you may consider the evidence presented concerning the design, testing, manufacture and type of warning for similar gas cans. App. 208 (Jury Instruction No. 17). 52
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Without that instruction, the instructions as a
whole failed to convey to the jury that they were limited to consideration of the state of the art at the time of sale, and that postsale evidence (of the type that Calder improperly introduced) was legally irrelevant. Because the court failed to give effect to the state-ofthe-art doctrine, Blitz is entitled at the very least to a new trial. IV.
The District Court Erred By Refusing To Remit The Jury’s Award Of Future Lost Earnings Damages To Zero Where Calder Failed To Prove Any Such Damages With Reasonable Certainty. Finally, the district court erred by refusing to remit the jury’s
award of future lost earnings damages to zero. Utah law requires a plaintiff to prove damages, including future lost earnings, with “reasonable certainty.” Corbett v. Seamons, 904 P.2d 229, 232 (Utah Ct. App. 1995) (internal quotation omitted); see generally Stevens-Henager College v. Eagle Gate College, 248 P.3d 1025, 1030 (Utah Ct. App. 2011); Giusti v. Sterling Wentworth Corp., 201 P.3d 966, 978-79 (Utah 2009); TruGreen Cos., LLC v. Mower Bros., Inc., 199 P.3d 929, 932-33 (Utah 2008); Sawyers v. FMA Leasing Co., 722 P.2d 773, 774-75 (Utah 1986) (per curiam).
Although that standard of proof—which applies in
diversity cases, like this one, in federal court, see, e.g., Wagner, 586 F.3d 53
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at 1244—does not demand mathematical precision, it demands “enough certainty to avoid an award based on speculation.” Stevens-Henager, 248 P.3d at 1034; see also Sawyers, 722 P.2d at 774. Calder failed to satisfy that standard here, because he failed to present any evidence regarding his actual earnings at any point in his life.
His damages estimates were based solely on the report and
testimony of an expert psychologist, Dr. Kristy Farnsworth.
She
described his physical and emotional scars from the incident and the effect they would have on his future ability to work. App. 488, 491, 49495. Taking into account his skills and impairments, compared to the average person, Farnsworth concluded that his earning capacity would be diminished by 37 to 57 percent. App. 496-502. She did not, however, consider Calder’s actual earnings, either before or after the incident. App. 505-06. As she put it, “the amount is not what I’m looking at.” App. 506. The problem with Farnsworth’s testimony is that she failed to address the critical question: 37 to 57 percent of what? Although jurors could have applied a 37 to 57 percent reduction to a known earnings figure, they had no basis for applying such a reduction to an unknown 54
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earnings figure. And Calder’s failure to prove any past earnings was no accident: he had not paid taxes on his past earnings, and agreed not to present evidence of those earnings to prevent Blitz from making that point to the jury.
See App. 459; see also App. 104, 111-12, 114-15.
Having thus made a tactical choice not to introduce any evidence of his actual earnings, Calder must live with the consequences of that choice. If anything, Calder’s counsel only highlighted the absence of an evidentiary basis for an award of future lost earnings damages by inviting the jury, during his closing statement, to speculate about Calder’s earnings: I can’t give you a salary figure, but what you have to do as a jury, you are required to use your knowledge, your own personal experience and common sense, what kind of salary a person in his position might have. He certifies the ophthalmic equipment that people rely on, the Veterans Hospital, for their eyes. If you think it’s just 10,000 a year … that’s 250,000 he will lose because he is working for the man. If you think it’s 20,000, that’s 500,000. If you think he earns up to 50,000 a year that’s 1.25 million over the next 45 years. *** Lost earning capacity. Again, you have to decide is this man making 10,000, maybe 20,000, maybe 50,000 a year. Just remember in your mind, 37 to 57 percent is his impairment as a disabled individual that has all this stuff wrong with him. 55
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App. 625-26, 629 (emphasis added). In fact, the jury had no idea what to “think,” because the record was devoid of any evidence regarding Calder’s earnings. The district court, however, denied Blitz’ post-trial motion for remittitur of the future lost earnings damages. According to the court, Utah law does not require a plaintiff to prove damages “‘with any degree of certainty,’” App. 332 (emphasis omitted; quoting Clawson v. Walgreen Drug Co., 162 P.2d 759, 765 (Utah 1945)), and it was sufficient that Calder had “testified that before the accident he had worked at a car stereo shop, but following the accident he ‘can’t work on car stereos anymore,’” App. 332 (citing App. 413 and quoting App. 449). The court thereby erred as a matter of both law and fact. As noted above, it is well-established that Utah law requires a plaintiff to establish damages, including future lost earnings damages, with reasonable certainty. See, e.g., Corbett, 904 P.2d at 232-33; Sawyers, 722 P.2d at 774-75. If anything, the district court’s record citations only underscore Calder’s failure to satisfy that legal standard. In response to a request by his counsel to describe his relationship with his deceased daughter, Calder answered: 56
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She would go to work with me every day at the stereo shop. Anyhow, from that she was—she was always there with me, I would have her there in her playpen or beside me in a car when I was working on it. She’d watch cartoons and we’d— App. 413.
And when asked to describe if there were “any type of
physical activities that [he] used to do before the fire that [he] cannot do now,” Calder answered—after noting that he could no longer ski—that he “can’t work on car stereos anymore.” App. 449. Neither of these answers provided a basis for the jury to determine Calder’s earnings with the requisite reasonable certainty.
Indeed, as noted above,
Calder’s counsel did not ask the jury to determine past earnings by reference to Calder’s past work on car stereos, but instead by reference to his current work in certifying ophthalmic equipment. See App. 625. In the absence of any evidence regarding Calder’s actual earnings, the jury was forced to rely on impermissible speculation to award future lost earnings damages. See Stevens-Henager, 248 P.3d at 1030, 1034; TruGreen, 199 P.3d at 933; Giusti, 201 P.3d at 979; Sawyers, 722 P.2d at 774-75. Accordingly, the district court had a “duty” to remit this portion of the damages award to zero, Linn v. United Plant Guard Workers of Am., 383 U.S. 53, 65-66 (1966), and this Court should now,
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at the very least, strike the portion of the damages award attributable to future lost earnings. CONCLUSION For the foregoing reasons, this Court should reverse the judgment. STATEMENT REGARDING ORAL ARGUMENT Blitz respectfully submits that oral argument would materially assist this Court in the resolution of this case. June 2, 2011
Respectfully submitted,
Shawn McGarry Gary T. Wight KIPP & CHRISTIAN, P.C. 10 Exchange Place, 4th floor Salt Lake City, UT 84111 (801) 521-3773
/s/ Christopher Landau Christopher Landau, P.C. Shelby Reitz KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 (202) 879-5000
[email protected]
Scott W. Sayler Jennifer M. Stevenson SHOOK HARDY & BACON LLP 2555 Grand Boulevard Kansas City, MO 64108 (816) 474-6550
Counsel for Defendant-Appellant
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CERTIFICATE OF TYPE-VOLUME COMPLIANCE The
undersigned
certifies
that
the
foregoing
brief
is
proportionately spaced, has a typeface of 14 points or more, and contains 12,166 words.
/s/ Christopher Landau____ Christopher Landau, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000
[email protected]
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CERTIFICATE OF DIGITAL-SUBMISSION COMPLIANCE The undersigned hereby certifies that: (1) all required privacy redactions have been made and, with the exception of those redactions, every document submitted in Digital Form or scanned PDF format is an exact copy of the written document filed with the Clerk; and (2) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program (McAfee VirusScan Enterprise 8.7.0i, updated as of June 2, 2011) and, according to the program, are free of viruses. /s/ Christopher Landau_____ Christopher Landau, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000
[email protected]
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SHORT APPENDIX
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SHORT APPENDIX Description
Page No.
Order on Motions In Limine (10/28/10) (Dkt. No. 416) .............................................................. App. 175 Memorandum Decision and Order Denying Defendant’s Motions for Judgment as a Matter of Law, New Trial, and Remittitur (2/8/11) (Dkt. No. 512) .................................................................. App. 328 Transcript of Daubert Hearing and Motions (10/22/10) (Excerpts from Dkt. No. 421) ...................................... App. 337 Trial Transcript (11/2/10) (Excerpts from Dkt. No. 458) ........................................ App. 375 Trial Transcript (11/5/10) (Excerpts from Dkt. No. 461) ........................................ App. 508 Trial Transcript (11/9/10) (Excerpts from Dkt. No. 463) ........................................ App. 597 Transcript of Jury Instruction Conference (11/9/10) (Excerpts from Dkt. No. 468) ........................................ App. 637
Case 2:07-cv-00387-TC -PMW Document 416 Filed 10/28/10 Page 1 of 3 Appellate Case: 11-4039 Document: 01018652041 Date Filed: 06/02/2011 Page: 71
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION DAVID CALDER, Individually, and as Father and Guardian of BC, a Minor, and of JC, a Minor, and as Father and Guardian of HMP, a Deceased Minor, Plaintiff,
ORDER
Case No. 2:07-cv-00387-TC-PMW
v.
Judge Tena Campbell
BLITZ USA, Defendant.
For the reasons set forth during the October 22, 2010, hearing, the court rules as follows. 1.
The court DENIES Plaintiff’s motion regarding product “misuse” (Dkt. No. 374), but may limit the use of the word “misuse” at trial if necessary.
2.
The court DENIES Plaintiff’s motion regarding general evidentiary matters (Dkt. No. 234) because Plaintiff filed no memo in support of this extensive motion.
3.
The court DENIES Defendant’s motion to exclude evidence regarding failure to produce documents and/or spoliation of evidence (Dkt. No. 237) and will instead deal with each document individually as needed at trial.
4.
The court DENIES Defendant’s motion to exclude evidence and argument relating to inadequacy of warnings (Dkt. No. 260).
5.
The court GRANTS in part Defendant’s motions to exclude evidence and/or reference to child-resistant closures (Dkt. No. 240), to exclude evidence relating to California Air Resources Board Regulations (Dkt. No. 242), and to exclude evidence of and/or reference to various alleged manufacturing defects concerning resin, regrind, caps and collars, or
App. 175
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any other alleged manufacturing defects (Dkt. No. 256). Plaintiffs may use the evidence referenced in these motions only on rebuttal and only with leave from the court. 6.
The court GRANTS in part Defendant’s omnibus motion to exclude various other evidence (Dkt. No. 244). Plaintiffs may only use evidence referred to in these motions only on rebuttal and only with leave from the court. The court requests additional briefing on the issue of whether earlier lawsuits that took place after the Plaintiff purchased Defendant’s product but before the accident at issue in this litigation are admissible to show that Defendant had notice of a potential defect. This briefing shall be submitted by Wednesday, October 27, 2010.
7.
The court GRANTS in part Defendant’s motion to exclude statements about flame arrestors in Consumer Reports articles (Dkt. No. 248). The statements in the Consumer Reports articles may only come in through the testimony of an expert and are subject to objection.
8.
The court GRANTS in part Defendant’s motion to exclude evidence relating to explosion containment (Dkt. No. 254). Plaintiffs may not play their proposed video but may ask witnesses about awareness of devices to prevent flashback that were introduced in the 1970s.
9.
The court GRANTS Defendant’s motions to exclude evidence relating to flame arrestors in other products (Dkt. No. 251) and its motion to exclude postmortem pictures of deceased child (Dkt. No. 262).
10.
The court GRANTS Defendant’s motion to exclude evidence of post sale evaluation of flame arrestors (Dkt. No. 258) because although the post-sale evaluation does not constitute a subsequent remedial measure, it is not relevant and would be unfairly
App. 176
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prejudicial. 11.
The court DENIES Plaintiff’s objection to Judge Warner’s order on motion for discovery dated August 23, 2010 (Dkt. No. 316). The court will consider Defendant’s motions to exclude the testimony of John J. Gillespie
(Dkt. No. 246), Craig Beyler (Dkt. No. 235), Joseph Zicherman (Dkt. No. 266), and Andrew Armstrong (Dkt. No. 371) after the hearing scheduled for October 29, 2010. The court will also consider Plaintiff’s motion to preclude computer generated accident reconstruction animations (Dkt. No. 365) after hearing argument at the October 29 hearing.
DATED this 27th day of October, 2010. BY THE COURT:
______________________________ TENA CAMPBELL Chief Judge
App. 177
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION DAVID CALDER, Individually, and as Father and Guardian of BC, a Minor, and of JC, a Minor, and as Father and Guardian of HMP, a Deceased Minor,
MEMORANDUM DECISION and ORDER
Plaintiff, Case No. 2:07-cv-00387-TC-PMW v. Judge Tena Campbell BLITZ USA, Defendant.
On December 28, 2005, David Calder used a gas container manufactured by Blitz U.S.A. to start a fire in a wood-burning stove in his trailer home. The fire that resulted killed Mr. Calder’s two-year-old daughter and severely burned Mr. Calder. Mr. Calder sued Blitz alleging (1) defective design (2) defective warning (3) breach of implied warranty (4) negligent misrepresentation and (5) negligence under Utah law. The gravamen of all of Mr. Calder’s claims, except his defective-warning claim, was that the gas container Mr. Calder used lacked a flame arrestor, and that because the container did not have a flame arrestor, vapors from outside the container ignited and caused a flashback explosion. Trial began on November 1, 2010. During the trial, Blitz moved for judgment as a matter of law twice, and the court denied both motions. The jury found that Mr. Calder was 30 percent at fault for the accident and that Blitz was 70 percent at fault. The jury awarded Mr. Calder damages of $6,167,943.00, reduced by 30 percent for Mr. Calder’s fault. The damages included $650,000 for Mr. Calder’s lost earning capacity.
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Blitz now renews its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50, claiming that (1) Mr. Calder failed to present evidence that Blitz’s gas container is “unreasonably dangerous” under Utah law; and that (2) Mr. Calder failed to present evidence that Blitz misrepresented an important fact upon which Mr. Calder relied when he used the gas container on December 28, 2005. Blitz alternatively moves for a new trial under Federal Rule of Civil Procedure 59, claiming that certain evidentiary rulings and the failure to give certain jury instructions were in error. Specifically, Blitz alleges that the court’s rulings resulted in: “(1) the improper exclusion of material and relevant causation evidence that refuted Plaintiff’s causation case and established alternative causation; (2) the admission of evidence violating the state of the art doctrine and the refusal to give a state of the art jury instruction, notwithstanding the Court’s proper pretrial recognition of the state of the art standard and Blitz U.S.A.’s reliance upon it; (3) the failure to give a jury instruction on compliance with governmental and industry standards and the resultant rebuttable presumption that should have flowed to Blitz U.S.A.; and (4) the inconsistent enforcement of evidentiary rulings and improper admission of evidence regarding explosion containment systems, inadequate warning content, and other similar incidents.” (Blitz’s Mot. for a New Trial, Dkt. No. 486, at 1.) In addition, Blitz seeks remittitur of the jury’s award of lost earning capacity because, according to Blitz, Mr. Calder produced no evidence to support the award. Because the court concludes that the jury’s verdict was supported by the evidence, and that the court’s evidentiary rulings and jury instructions were proper, the court denies Blitz’s motions. 2
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ANALYSIS Blitz’s Motion for Judgment as a Matter of Law “Judgment as a matter of law is appropriate only when the evidence presented at trial does not permit a reasonable jury to find for the non-movant.” Manzanares v. Higdon, 575 F.3d 1135, 1142 (10th Cir. 2009); see also Fed. R. Civ. P. 50. “Such a judgment is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir. 2003). The court considers the evidence in the light most favorable to the non-moving party. United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1227 (10th Cir. 2000) (quotation omitted). Unreasonably Dangerous “Unreasonably dangerous” is defined under Utah law as follows: “[U]nreasonably dangerous” means that the product was dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer. Utah Code Ann. § 78B-6-702 (2008). Glen Stevick, Plaintiff’s engineering expert, testified that a flame arrestor would have prevented the explosion that injured Mr. Calder and killed his daughter. (Trial Tr. at 170:11-16, attached as ex. D to Plaintiff’s Opp. To Blitz’s Mot. for Judgment as a Matter of Law.) Dr. Stevick also testified that other manufacturers have been putting flame arrestors in consumer gas cans since the 1970’s. (Trial Tr. at 165:02-18, attached as ex. C
3
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to Plaintiff’s Opp. To Blitz’s Mot. for Judgment as a Matter of Law.) Cy Elmburg, the owner and CEO of Blitz at the time the gas container that is the subject of the litigation was made, told the jury that he knew since the 1960’s that people had been burned by “gasoline or gasoline vapors found with the use of gasoline containers.” (Elmburg Depo. Tr. at 41:20-24, attached as ex. M to Plaintiff’s Opp. To Blitz’s Mot. for Judgment as a Matter of Law.) Considering this evidence in the light most favorable to the jury verdict, the court concludes that there is ample basis in the record to support the jury’s finding that the Blitz gas container was unreasonably dangerous under Utah law. Misrepresented an Important Fact To find for Mr. Calder on his negligent misrepresentation claim, the jury had to find that Blitz represented to Mr. Calder an important fact that was not true. See Model Utah Jury Instructions, Second Edition, Instruction CV1802. There is sufficient evidence in the record for the jury to have found that Blitz misrepresented that its gas containers were safe, and that Mr. Calder relied on that misrepresentation when he used the gas container. Blitz’s Motion for A New Trial A motion for a new trial may be granted if “the district court concludes the ‘claimed error substantially and adversely’ affected the party’s rights.” Henning v. Union Pac. R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (quoting Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998)). Because the court finds no error in its evidentiary rulings or in its instructions to the jury, the court denies Blitz’s motion for a new trial. 4
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Blitz’s Motion for Remittitur “[A] trial judge may grant a new trial or remittitur of damages when, inter alia, there are excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice, or there is an insufficiency of the evidence to justify the verdict or other decision.” Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶24, 82 P.3d 1064 (quotations omitted). In Clawson v. Walgreen Drug Co., the plaintiff had testified that before the injury “he made ‘pretty good’ while trapping and farming and that he made enough money ‘to spend and run around with and help the folks out,’” but that after the injury he could no longer work as a trapper and farmer. 162 P.2d 759, 765 (Utah 1945). The Utah Supreme Court held that “[s]ince impairment of earning capacity involves the capacity of the injured person rather than merely what he might have made following his ordinary pursuit, it was not error to permit the jury to consider impairment of earning capacity as an element of damage. This is so although it was not shown with any degree of certainty what plaintiff’s earning capacity had been in the past.” Id. (emphasis added). Mr. Calder testified that before the accident he had worked at a car stereo shop (trial tr. 423:07-423:16, attached as Ex. 55 to Plaintiff’s Opp. To Blitz’s Mot. for a New Trial and Mot. for Remittitur), but that following the accident he “can’t work on car stereos anymore.” (Trial Tr. 480:18-480:20, attached as Ex. 57 to Plaintiff’s Opp. To Blitz’s Mot. for a New Trial and Mot. for Remittitur.) Dr. Kristi Farnsworth testified that Mr. Calder’s lifetime earning capacity was reduced between 37 and 57 percent. (Trial Tr. 563:21-564:03, attached.as Ex. 59 to Plaintiff’s Opp. To Blitz’s Mot. for a New Trial and 5
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Mot. for Remittitur.) Because the court concludes that the evidence presented provides sufficient factual support for the jury’s award of lost earning capacity, the court denies Blitz’s motion for remittitur. ORDER The court DENIES Blitz’s renewed motion for judgment as a matter of law (Dkt. No. 483) and Blitz’s motion for a new trial and motion for remittitur (Dkt. No. 486). DATED this__8th__ day of February, 2011.
BY THE COURT:
______________________________ TENA CAMPBELL United States District Judge
6
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(9498)
2 3 4 5 6 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
8
CENTRAL DIVISION
9
______________________________________________________________
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DAVID CALDER, INDIVIDUALLY,AND AS FATHER AND GUARDIAN OF HMP, A DECEASED MINOR,
12
PLAINTIFF,
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13 14 15
CASE NO. 2:07-CV-387TC
VS. BLITZ U.S.A., INC.,
SALT LAKE CITY, UTAH
DEFENDANT.
OCTOBER 22, 2010
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______________________________________________________________
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DAUBERT HEARING AND MOTIONS BEFORE THE HONORABLE TENA CAMPBELL UNITED STATES DISTRICT COURT JUDGE
18 19 20 21 22 23 24 25
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APPEARANCES:
4 5
FOR THE PLAINTIFF:
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WINDER & COUNSEL BY: DON WINDER, ESQ. BENTON GAINES ROSS, ESQ. 175 WEST 200 SOUTH, SUITE 4000 P.O. BOX 2668 SALT LAKE CITY, UTAH 84110 (801) 322-2222
7 8 9
THE ANDERSON LAW FIRM BY: HANK ANDERSON, ESQ. GANT A. GRIMES, ESQ. 4245 KEMP BLVD., SUITE 810 WICHITA FALLS, TEXAS 76308 (940) 691-7600
10 11 12 13 FOR THE DEFENDANT:
14 KIPP AND CHRISTIAN BY: SHAWN MC GARRY, ESQ. GARY T. WIGHT, ESQ. 10 EXCHANGE PLACE, 4TH FLOOR SALT LAKE CITY, UTAH 84111 (801) 521-3773
15 16 17
SHOOK HARDY & BACON BY: SCOTT W. SAYLER, ESQ. DOUGLAS S. BECK, ESQ. JENNIFER M. STEVENSON, ESQ. 2555 GRAND BOULEVARD KANSAS CITY, MISSOURI 64108 (816) 474-6550
18 19 20 21 22 23 24 25
COURT REPORTERS: RAYMOND P. FENLON PATTI WALKER 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634
2
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I-N-D-E-X
7 8 9 10 11 12 13
WITNESS
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DIRECT
CROSS
REDIRECT
RECROSS
G. STEVICK
6
45
52
15
A. STEVENS
64
87
101
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C. ADAMS
117
134
139
17 18 19 20 21 22 23 24 25
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to have to -- Mr. Young will ask Mr. Calder would he have
2
noticed it.
3
been bigger, I would have noticed it.
4
does one know?
5
issue.
I don't know how one can ever say if this had It wasn't, so how
So I think that's just going to be a jury
So the motion is denied.
6
Okay.
Number 268, Blitz's motion to exclude
7
evidence of child-resistant closures.
8
Blitz.
9
comes in like Blitz is saying we always comply with all
I tend to agree.
Not relevant says
You say, plaintiff, only if it
10
industry standards.
11
you think the door has been opened, ask me first.
12
Again, I can't see that coming in.
If
Number 258, Blitz's motion to exclude evidence of
13
post sale evaluation of flame arrestors, and one of your
14
primary bases, Blitz, is Rule 407.
15
remedial measure taken.
16
some sort of evaluation and analysis, and the case law says
17
that is not a remedial measure in and of itself barred by
18
407.
19
feasibility.
20
that back in -- when was it?
21
looking at it for -- was it for that same sort of stuff we
22
aren't going to see the video about?
This was, as I understand it, just
So even if it had been, the rule allows it for How, plaintiff, do you propose to get it in
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MR. ANDERSON:
24
THE COURT:
25
However, there wasn't a
question.
It was '95 that they were
Yes, Your Honor, it was.
Then it just can come in a general
The same sort of a question, you were looking at
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it, you decided that -- you recognized something that it
2
could be a problem.
3
clear it up that it was not a flame arrestor.
4
definitely shows notice that they were aware of the problem.
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MR. ROSS:
Then we'll keep it short like that and But it
In addition -- I'm sorry, I thought I
6
understood that this was only in reference to the 1995
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explosion suppression stuff.
8
motion covered the Dunbar documents as well.
9
And as I understood, this
Is that how Blitz is understanding this?
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MR. SAYLER:
This motion is a motion relating to
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the post sale evaluation of flame arrestors, in other words,
12
post April 1999.
13
That's the basis for the motion.
14
There is no relevance to that evidence.
THE COURT:
15
see it.
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barred by 407.
Well, I think that there is.
Why do you say it wouldn't be relevant?
It's not
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MR. SAYLER:
I don't disagree with that.
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THE COURT:
So tell me why it wouldn't be
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I don't
relevant.
20
MR. SAYLER:
Let me just clarify it just for the
21
record.
In our briefing, and I wanted to make this clear to
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the Court, we quoted 407 and just learned within the last
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day or so that the language has slightly changed, Federal
24
Rule of Evidence 407, from how we quoted it in our
25
brief --
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THE COURT:
That's okay.
2
MR. SAYLER:
3
The irrelevance is the product has been sold.
-- and stand corrected on that. The
4
product has been sold.
At the time the product was sold,
5
there was absolutely no governmental or industry
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recommendation or requirement of a flame arrestor
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whatsoever.
8
significant in evaluating the design defect issue in this
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case.
And that is the state of knowledge that is
Again, it harkens back to Utah's state-of-the-art
10
doctrine and its products liability act.
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consideration and evaluation that Blitz may have had after
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that fact is not relevant because --
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THE COURT:
So discussions and
When did these -- because my
14
understanding was it was sometime in '95, looking at
15
plaintiff's.
16 17
MR. SAYLER:
20
I think it's ten years forward.
It's
the 2005 -- 2004, 2005, 2006 time frame.
18 19
So exactly, plaintiff -- thanks.
THE COURT:
Then we're looking at something,
MR. SAYLER:
There were conversations with
right?
21
engineers.
They talked to Underwriters Laboratory.
So,
22
yes, there was discussion.
23
recommended a flame arrestor.
24
has ever recommended a flame arrestor to Blitz except for
25
plaintiffs and their hired experts.
Of significance, nobody ever As we sit here today, nobody
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THE COURT:
Okay.
Thanks.
2
All right, counsel, why would something that
3
happened in 2005 or 2006, that would be perhaps even after
4
the event and it would be seven years after the sale, how is
5
that relevant?
6
MR. ROSS:
Your Honor, in 2004, Blitz hired a
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company called Dunbar Engineering out of Tulsa to research
8
flame arrestor technology.
9
economic feasibility.
It will show technological and
Mark Dunbar's research in that field
10
and Blitz's pursuit of it shows that -- excuse me, Mark
11
Dunbar's research showed that the flame arrestors would work
12
in a gasoline product and he determined the minimal
13
experimental gap that is necessary, the size in the mesh
14
hole necessary to stop a flame, to establish its
15
technological feasibility inside of a Blitz gasoline
16
container.
17
showing economic feasibility.
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THE COURT:
He also investigated the price of such screens
All right, counsel.
If, in fact -- I
19
know there was some argument that the event -- the
20
triggering dates, 2005, December, when the accident took
21
place, but if we're looking at whether the gas can was
22
unreasonably dangerous when sold, why would an engineering
23
study in 2004 be relevant?
24 25
MR. ROSS:
Your Honor, when we had the discussion
on the triggering date being the date of sale versus the
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date of incident, we were talking about notice.
2
talking about feasibility.
3 4 5
THE COURT:
Here we're
But if something -- but isn't the
feasibility focus, was it feasible when manufactured? MR. ROSS:
Yes, Your Honor, it was.
There is not
6
any significant difference between the price of a mesh metal
7
screen in 1999 versus 2004.
8
opportunity to make a recall, which it didn't do.
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THE COURT:
Moreover, it gave Blitz the
So you're saying that it was
10
relevant -- it's relevant because nothing had changed in
11
2004 from 1999 when it was manufactured?
12 13
MR. ROSS:
Aside from inflation of prices, no,
Your Honor, Blitz is making essentially the same containers.
14
THE COURT:
15
MR. SAYLER:
All right.
Counsel.
I feel like we're creating a new
16
lawsuit today.
They never once made an allegation that
17
there should have been a recall.
18
different line of analysis and would involve entirely
19
different discovery.
20
THE COURT:
21
MR. SAYLER:
22
I would also respectfully suggest that's a gross
That's an entirely
We're not talking about recall. Right.
23
misstatement of the consultation with Dunbar Engineering,
24
that they looked into feasibility or doing a pricing
25
analysis, things of that nature.
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was essentially do a search for articles that discussed
2
flame arrestors and packaged up the articles and sent them
3
to Blitz.
4
a safety perspective to add a flame arrestor.
5
that that Dunbar Engineering consultation was about.
6
again, it's a good five years after the sale in question and
7
I just don't believe it has any relevance.
8 9
There was no recommendation that made sense from
THE COURT: motion.
All right.
That was all And,
I'm going to grant the
It isn't that it's barred by 407 as we all now
10
recognize, but it is not relevant.
11
after the can was manufactured.
12
then, many things change in five years.
13
if there is any probative value, which I don't know, it's
14
very slight and it certainly would be outweighed by the
15
prejudicial value.
16
Whether it was feasible
Now we also have the objection to the Tulsa thing. We'll talk about that Friday.
18
finished all the motions in limine.
20 21 22
By my calculations, I
Do you have any that are floating around out there that I have missed? MR. SAYLER:
We think you have covered them all,
Your Honor.
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THE COURT:
24
MR. ANDERSON:
25
And it's simply --
So under 403, it is excluded.
17
19
It is four or five years
How about you, plaintiff? I think you've got it completed,
Your Honor.
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IN THE UNITED STATES DISTRICT COURT
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DISTRICT OF UTAH
3
CENTRAL DIVISION
4 5
DAVID CALDER, Individually and )
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as Father and Guardian of
)
7
H.M.P., a deceased minor,
)
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Plaintiffs,
)
vs.
)
BLITZ U.S.A., INC.,
)
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Defendant.
12
_______________________________)
CASE NO.
2:07-CV-387TC
)
13 14
BEFORE THE HONORABLE TENA CAMPBELL
15
----------------------------------
16
November 2, 2010
17 18 19 20 21
Jury Trial
22 23 24 25
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A P P E A R A N C E S
2 3 4
For Plaintiffs:
5 6
DON WINDER BENTON GAINES ROSS 175 West 200 South Suite 4000 Salt Lake City, Utah
7 8
HANK ANDERSON GANT A. GRIMES 4245 Kemp Boulevard Suite 810 Wichita Falls, Texas
9 10 11 12 13 For Defendant: 14 15
SHAWN MC GARRY GARY T. WIGHT 10 Exchange Place 4th Floor Salt Lake City, Utah
16 17
SCOTT W. SAYLER DOUGLAS S. BECK JENNIFER M. STEVENSON 2555 Grand Boulevard Kansas City, Missouri
18 19 20 21 22 Court Reporters: 23 24 25
Ed Young Jeffery Eaton Ray Fenlon 247 U.S. Courthouse 350 South Main Street Salt Lake City, Utah (801) 328-3202
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I N D E X
2 3
Witness
Examination By
Page
Glen Glen Glen Glen
Mr. Mr. Mr. Mr.
Anderson (Direct Cont.) Beck (Cross) Anderson (Redirect) Beck (Recross)
150 213 278 289
Mr. Mr. Mr. Mr. Mr.
Anderson (Direct) Wight (Cross) Anderson (Redirect) Wight (Recross) Anderson (Redirect)
291 320 328 332 332
4 5 6 7 8 9
Stevick Stevick Stevick Stevick
Dustin Dustin Dustin Dustin Dustin
Cheshire Cheshire Cheshire Cheshire Cheshire
10 11 12 13
Exhibit
14
Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Plaintiff's Defendant's Plaintiff's
15 16 17 18 19 20
Received Exhibit 205-Q Exhibits 205-G, 205-H and 205-F Exhibit 176 Exhibit 164 Exhibit 153-A Exhibit 18 Exhibit 205-AAA Exhibit 176-A Exhibit 206-A Exhibit 206-C Exhibit 206-E Exhibits 206-J and 206-K Exhibit B-580 Exhibit 185-A
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154 156 163 164 166 177 183 199 200 200 205 210 276 301
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container like the subject container back in 1998 and 1999?
2
A.
Well, yes.
3
Q.
Have you actually put your work into a publication?
4
A.
Yes.
5
Q.
Has any institution or organization cited your work as
6
authoritative work?
7
A.
8
presentations has cited and referenced the paper I wrote on
9
this subject.
Yes.
It had been done before then and since.
W.P.I., their fire engineering department in
10
Q.
What is W.P.I.?
I don't know what that is.
11
A.
That is the Worcester Polytechnical Institute.
12
are one of two universities in the country that specialize
13
in fire protection engineering.
14
Q.
They
Why would W.P.I. be interested in your work?
15
MR. BECK:
16
THE COURT:
17
Sustained.
Objection, Your Honor, relevance. Well, speculation, too.
18
BY MR. ANDERSON
19
Q.
Are you on a committee for A.S.T.M.?
20
A.
Yes.
21
Q.
What is A.S.T.M. and what does it stand for?
22
A.
American Society of Testing Materials.
23
Q.
What committee are you on, sir?
24
A.
F-15.10, which is portable gasoline containers, and
25
looking at the issues of portable gasoline containers.
I am on the A.S.T.M. committee.
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Q.
Okay.
There has been discussion during the opening
2
argument about standards.
3
you're talking about, is it the subcommittee that is
4
responsible for developing and promulgating standards for
5
gas cans?
6
A.
It is.
7
Q.
As we sit here today is there a consensus among the
8
A.S.T.M. subcommittee as to whether flame arresters should
9
or should not be put in gas cans?
10
MR. BECK:
11
THE COURT:
12
Is the A.S.T.M. subcommittee that
Objection, Your Honor, relevance. I don't know.
It seems to me that it
is hearsay.
13
Sustained.
14
BY MR. ANDERSON
15
Q.
16
regarding flame arresters as we sit here today?
17 18
Is the A.S.T.M. subcommittee delving into an issue
MR. BECK:
I would object to that, Your Honor.
Relevance.
19
THE COURT:
20
THE WITNESS:
21
flame arresters.
22
BY MR. ANDERSON
23
Q.
24
particular issue?
25
A.
Overruled. Yes, they are studying the issue of
How long has this subcommittee been studying this
I'm not 100 percent sure, but I know it goes back at
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least five plus years.
2
Q.
3
A.S.T.M. subcommittee?
4
A.
5
testing.
6
Q.
What is the relationship between W.P.I. and the
The A.S.T.M. subcommittee has hired W.P.I. to do some
Has W.P.I. issued some preliminary findings?
7
THE COURT:
8
When were those issued?
9
THE WITNESS:
10
All right.
They were issued in the last few
months.
11
THE COURT:
Sustained.
Relevance.
12
BY MR. ANDERSON
13
Q.
14
authority?
15
A.
Two or three months ago, something like that.
16
Q.
Recently?
17
A.
Yes.
18
Q.
Are you familiar with any engineering principles, that
19
had they been used and adopted by Blitz when they designed
20
this particular model, 11810, that would have prevented this
21
explosion?
22
A.
23
and effects analysis -- what that is is that is a common
24
name for a risk assessment.
25
what-if analysis to a fault tree analysis, but manufacturers
When was it that W.P.I. cited your case work as
Yes.
I think if you did a fair-minded failure modes
Risk assessments vary from a
App. 387
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1 2 3 4 5 6 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
8
CENTRAL DIVISION
9
______________________________________________________________
11
DAVID CALDER, INDIVIDUALLY,AND AS FATHER AND GUARDIAN OF HMP, A DECEASED MINOR,
12
PLAINTIFF,
10
13 14 15
CASE NO. 2:07-CV-387TC
VS. BLITZ U.S.A., INC.,
SALT LAKE CITY, UTAH
DEFENDANT.
NOVEMBER 5, 2010
16
______________________________________________________________
17
JURY TRIAL BEFORE THE HONORABLE TENA CAMPBELL UNITED STATES DISTRICT COURT JUDGE
18 19 20 21 22 23 24 25
656
App. 508
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1 2
APPEARANCES:
3 4
FOR THE PLAINTIFF:
5
WINDER & COUNSEL BY: DON WINDER, ESQ. BENTON GAINES ROSS, ESQ. 175 WEST 200 SOUTH, SUITE 4000 P.O. BOX 2668 SALT LAKE CITY, UTAH 84110 (801) 322-2222
6 7 8
THE ANDERSON LAW FIRM BY: HANK ANDERSON, ESQ. GANT A. GRIMES, ESQ. 4245 KEMP BLVD., SUITE 810 WICHITA FALLS, TEXAS 76308 (940) 691-7600
9 10 11 12 FOR THE DEFENDANT:
13 KIPP AND CHRISTIAN BY: SHAWN MC GARRY, ESQ. GARY T. WIGHT, ESQ. 10 EXCHANGE PLACE, 4TH FLOOR SALT LAKE CITY, UTAH 84111 (801) 521-3773
14 15 16
SHOOK HARDY & BACON BY: SCOTT W. SAYLER, ESQ. DOUGLAS S. BECK, ESQ. JENNIFER M. STEVENSON, ESQ. 2555 GRAND BOULEVARD KANSAS CITY, MISSOURI 64108 (816) 474-6550
17 18 19 20 21 22 23 24
COURT REPORTERS: RAYMOND P. FENLON PATTY WALKER 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634
25
657
App. 509
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1 2
I-N-D-E-X
3 4
WITNESS
5
JOHN GILLISPIE VIDEOTAPE DEPOSITION...............PAGE 672
6
L. CHRISCO
673
7
D. CALDER
825
8
K. WOMACK
832
9
FRANKLIN FOWLER DEPOSITION.........................PAGE 865
DIRECT
CROSS
REDIRECT
RECROSS
769
807
823
840
861
863
10 11
PLAINTIFF'S EXHIBITS RECEIVED IN EVIDENCE
12
EXHIBIT NO.
PAGE NO.
13
171
672
14
297A
696
15
15
707
16
16
708
17
113
711
18
111
712
19
148B
751
20 21
DEFENDANTS' EXHIBITS RECEIVED IN EVIDENCE
22
EXHIBIT NO.
PAGE NO.
23
B865
790
24
B560
803
25
658
App. 510
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1 2
MR. ANDERSON:
We are going to do those motions,
Your Honor?
3
THE COURT:
Yeah.
4
All right, sir, go ahead.
5
You, Mr. Wight, you go ahead, sir.
6
MR. WIGHT:
7
As you are aware the Henrie v. Northrop Grumman is
8
a Tenth Circuit case that outlines Utah law regarding strict
9
liability, warranty and negligence.
Let's -- whoever.
Thank you, Your Honor.
In this action, the
10
plaintiffs make claims for strict liability, warranty
11
negligence, and negligent misrepresentation.
12
argue, Your Honor, that plaintiff has failed to meet his
13
burden on each of those causes of action.
14
We would
Now, first of all, with regard to the negligence,
15
strict liability and breach of warranty claims, those claims
16
are governed by Utah law.
17
of those claims, the plaintiff has to show that the product
18
in question here, the 11810, is unreasonably dangerous.
19
order to make a showing of unreasonable danger under Utah
20
law, the plaintiff has to show that the product was
21
dangerous to an extent beyond which would be contemplated by
22
the ordinary and prudent buyer, consumer or user of that
23
product in that community.
And to make a showing under each
In
24
Your Honor, as we've listened to plaintiff's case,
25
there has been absolutely no evidence as to what an ordinary
App. 526
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1
user or prudent user would expect with regard to this
2
product.
3
and he demonstrated how he used the product on the night of
4
the fire.
5
container -- at least portions of it, the nozzle, inside the
6
wood burning stove.
7
that an ordinary and prudent user could expect to do that
8
safely.
9
You were here for the examination of Mr. Calder
In fact, he demonstrated putting a gasoline
Plaintiffs have presented no evidence
Now because they have made no showing, because
10
they have presented no evidence either by fact witness or
11
expert witness, their negligence, strict liability and
12
breach of warranty claims fail as a matter of law.
13
Now with regard to negligent misrepresentation, in
14
order for negligent misrepresentation to be maintained,
15
there must actually be a false representation.
16
Utah courts have stated that the defendant has to
17
affirmatively represent an important fact to the plaintiff
18
that is not true.
19 20
THE COURT:
What case are you relying on there,
Mr. Wight?
21 22
In fact, the
MR. WIGHT: Inc.
That would West v. Inter Financial,
It's a Utah Court of Appeals case from 2006.
23
THE COURT:
Its site?
24
MR. WIGHT:
139 P.3d 1059.
25
During plaintiff's case in chief, plaintiff has
App. 527
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1
failed to present any evidence that Blitz made an
2
affirmative representation that he could safely use the
3
gasoline container in the manner that he did on the night of
4
the fire.
5
affirmative representation, plaintiff's negligent
6
misrepresentation claim fails as a matter of law.
7
Because there is no evidence of such an
Moving on, Your Honor, we would also -- if we do
8
not prevail on the motion to dismiss plaintiff's product
9
liability claims because of a lack of showing of
10
unreasonable danger, we would move that plaintiff's punitive
11
damage claim be dismissed.
12
Now the standard for punitive damages under Utah
13
law is that the plaintiff must prove actual knowledge by the
14
defendant of the danger created by the defendant's conduct.
15
Additionally, the plaintiff has to prove by clear and
16
convincing evidence that it was careless and reckless to a
17
degree that shows utter indifference to the consequences
18
that may result.
19
That's the standard.
Plaintiff has failed to meet that standard for
20
three reasons.
First, plaintiff has presented no evidence
21
that flame arrestors were recommended, required or industry
22
standard at the time the 11810 can was sold -- or, excuse
23
me, manufactured.
24
Stevick, affirmatively testified that the National Fire
25
Protection Standards neither recommend nor require a flame
In fact, plaintiff's own expert, Dr.
App. 528
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1
arrestor.
2
government regulations requiring a flame arrestor, plaintiff
3
cannot show willful and reckless disregard for Mr. Calder's
4
rights.
5
Because there were no stamped industry or
Second, at the time Mr. Calder allegedly purchased
6
the 11810 container, there had only been one other lawsuit
7
asserted against Blitz alleging a flashback explosion
8
involving this container.
9
Now the testimony is that there have been millions
10
of Blitz gasoline containers sold prior to 1999.
11
that time, there was only one lawsuit.
12
constitute actual knowledge on Blitz's part of a substantial
13
risk of flashback explosions.
14
lack of knowledge on the part of Blitz that these containers
15
can experience that phenomenon.
16
Yet, at
This does not
In fact, it actually shows a
Third, Your Honor, Mr. Calder on the stand
17
described his own belief that he made a mistake on the night
18
of the fire.
19
actions in this lawsuit, his own comparative negligence, we
20
would submit that plaintiffs cannot maintain an argument for
21
punitive damages and that claim should be dismissed as a
22
matter of law.
And, Your Honor, due to Mr. Calder's own
23
THE COURT:
Thank you very much, Mr. Wight.
24
MR. WIGHT:
Thank you, Your Honor.
25
THE COURT:
All right.
App. 529
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1 2
MR. ROSS:
Your Honor, I briefly will address
defense's points.
3
THE COURT:
4
MR. ROSS:
Please. Starting with the defense claim that
5
our strict liability negligence and warnings fail due to no
6
evidence that an ordinary consumer, not Mr. Calder, would
7
not expect to be safe in this situation.
8
is under Rule 50 of the Federal Rules of Civil Procedure
9
that defendant is making this motion?
10 11
THE COURT:
I'm assuming this
Probably with the inferences in your
favor.
12
MR. ROSS:
Yes, Your Honor.
13
And under that standard, the Court has to decide
14
if it -- whether no reasonable juror would have legally
15
sufficient evidence.
16
look at Mr. Calder, hear his story, and decide, especially
17
given the number of hands that went up when you asked who
18
had started a fire in the voir dire, each one of these
19
jurors has some sort of experience with gasoline and its
20
use, and they can use their own judgment to decide that an
21
ordinary user would be able to start -- would think that it
22
is safe to start a fire with gasoline.
23
reasonable juror could have sufficient evidence -- legally
24
sufficient evidence under these facts.
25
And certainly a reasonable juror could
Therefore, a
Moving to the second, the negligent
App. 530
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1
misrepresentation, when Blitz puts a glass can into the
2
market, it represents that's it's safe for its uses.
3
Mr. Chrisco has testified, there are three uses that are
4
common for gasoline.
5
THE COURT:
As
So you say that the negligent
6
misrepresentation is just by putting it -- when Blitz puts
7
it into the market?
8
MR. ROSS:
9
THE COURT:
10
Yes, Your Honor. What case do you have to buttress
that?
11
MR. ROSS:
Your Honor, having not heard this
12
argument before right now, I do not have a case to back that
13
up.
14
And, finally, Your Honor, moving to the punitive
15
damages claims, again, the standard under Rule 50 is would a
16
reasonable juror, could he have legally sufficient evidence
17
to decide.
18
flashback explosions, Cy Elmburg, also from Mr. Chrisco,
19
since the 1960s and '70s.
20
of Mr. Elmburg that they knew that people were getting hurt
21
and dying in flashback explosions.
22
that Eagle Manufacturing made a can with a flame arrestor in
23
it that they had proven through testing could prevent
24
flashbacks.
25
can in 1998 and '99, they refused to consider putting a
We have heard that Blitz has been aware of
They have testified in the guise
The fact that they knew
And still, when they redesigned Mr. Calder's
App. 531
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1
flame arrestor into their can.
2
in their failure modes analysis.
3
They didn't even consider it
Therefore, Your Honor, there is legally
4
sufficient -- a juror could find that there is legally
5
sufficient evidence to find a punitive damages claim, the
6
negligence, the strict liability in both warning and defect,
7
and negligent misrepresentation because of Blitz's
8
representation that for all three of the uses that Blitz
9
knew the can was going to be used for, solvent, accelerant
10
and fuel, that Blitz had represented it was safe under the
11
implied warranty of merchantability when it's put on the
12
market.
13
THE COURT:
Counsel, I'm going to deny the
14
motions.
I think there is sufficient evidence to go to the
15
jury.
16
question of the misrepresentation.
17
that says -- your theory is just that by putting it on the
18
market, they made a misrepresentation?
However, I am going to reserve just on the one
19
MR. ROSS:
20
THE COURT:
I've got to find a case
Yes, Your Honor. I have to look at that.
But the rest,
21
I believe, raise sufficient -- looking at it in the standard
22
that I must, sufficient evidence to go to the jury.
23
What is up next for your case, plaintiff?
24 25
Where
are we? MR. ANDERSON:
We're finishing Mr. Chrisco.
App. 532
Then
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1
at all times unless they are in use; is that right?
2 3
A.
That can is designed so that it's easy to keep
closed when not in use, that's correct. Q.
4
Now, your experience with Blitz over these 34
5
years has been, has it not, that this tether tends to get
6
brittle and break so that the vent cap comes off over a
7
period of time, doesn't it?
8
MR. SAYLER:
9
THE COURT:
10 11
Beyond the scope. Overruled.
THE WITNESS:
Well, I mean it could.
Anything
is possible there. Q.
12
BY MR. ANDERSON:
And when that breaks off,
13
then this little button right here where the vent is
14
would remain open, wouldn't it? A.
15
Well, you could still pop the button on.
Just
16
because it's not attached, you can still snap it back
17
on.
18
Q.
Unless you lost it?
19
A.
If you lost it, yes.
20
Q.
Is it your -- well, you agree, do you not, that
21
there is no consensus at the ASTM F15.10 subcommittee
22
concerning the efficacy of flame arresters, don't you?
23
MR. SAYLER:
Objection.
24
THE COURT:
25
MR. ANDERSON:
Beyond the scope.
Overruled. He brought it up, Your Honor. 813
App. 571
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1
Q.
BY MR. ANDERSON:
Don't you?
2
A.
Would you ask that again.
3
Q.
Would you agree that there is no consensus
4
among the members of the F15.10 ASTM subcommittee
5
regarding the efficacy of flame arresters, whether or not
6
they should or should not be included in gas cans.
7
MR. SAYLER:
8
THE COURT:
9
THE WITNESS:
10
since about 2006 or 7.
11
is that this body of work, these claims, are now being
12
looked at by ASTM.
13
that body.
14
they have either elected or chosen an independent testing
15
facility and are writing protocol in how to test this
16
theory or these claims.
17
anything that you talked about there, and I currently
18
don't know the current status.
19
years, so I don't know exactly how far along that is in
20
its work.
21
Q.
Timeframe as well. Overruled. I haven't been a member of ASTM Currently what I know about ASTM
Plaintiffs' experts are setting on
So are defendant experts.
And there is --
Prior to that, I'm not aware of
I've been gone for three
And the institute that the ASTM subcommittee
22
actually employed to do the testing was Worcester
23
Polytechnic Institute, correct?
24 25
A.
Sir, I don't know that because I have not been
involved since '07 with it.
I just know that that's -814
App. 572
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1
the big picture that I know, it's in the hands and who
2
the members kind of are.
3
who was chosen and who was not. Q.
4
I can't talk in detail about
But you do know that, right now, as we sit
5
here, the issue of testing flame arresters to determine
6
whether they should or should not be required, is
7
presently undergoing --
8 9
THE COURT:
That's sustained.
isn't the time we are focusing on.
10
Q.
BY MR. ANDERSON:
Right now really
Sustained.
Now, Mr. Chrisco, you
11
testified earlier about Blitz gas containers being sold
12
at Wal-Mart?
13
A.
Yes, sir.
14
Q.
Wal-Mart is in fact, and has been for many
15
years, Blitz's biggest customer; is that correct? A.
16
Yeah.
That's probably correct.
They are the
17
biggest customer for most people that sell to them,
18
yes.
19
Q.
Sure.
Now, you indicated that the last time
20
that Blitz sold Model 11810, the 2 Plus gas can, to
21
Wal-Mart at Loveland, Colorado, was sometime in 2003; is
22
that correct?
23 24 25
A.
No.
Q.
Okay.
I think the document said December of
'02. The end of '02, the beginning of '03? 815
App. 573
Case 2:07-cv-00387-TC -PMW Document 463 Filed 11/19/10 Page 1 of 8 Appellate Case: 11-4039 Document: 01018652041 Date Filed: 06/02/2011 Page: 108
1 2 3 4 5 6 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
8
CENTRAL DIVISION
9
______________________________________________________________
11
DAVID CALDER, INDIVIDUALLY,AND AS FATHER AND GUARDIAN OF HMP, A DECEASED MINOR,
12
PLAINTIFF,
10
13 14 15
CASE NO. 2:07-CV-387TC
VS. BLITZ U.S.A., INC.,
SALT LAKE CITY, UTAH
DEFENDANT.
NOVEMBER 9, 2010
16
______________________________________________________________
17
JURY TRIAL BEFORE THE HONORABLE TENA CAMPBELL UNITED STATES DISTRICT COURT JUDGE
18 19 20 21 22 23 24 25
1074
App. 597
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1 2 APPEARANCES:
3 4 FOR THE PLAINTIFF:
5 WINDER & COUNSEL BY: DON WINDER, ESQ. BENTON GAINES ROSS, ESQ. 175 WEST 200 SOUTH, SUITE 4000 P.O. BOX 2668 SALT LAKE CITY, UTAH 84110 (801) 322-2222
6 7 8 9
THE ANDERSON LAW FIRM BY: HANK ANDERSON, ESQ. GANT A. GRIMES, ESQ. 4245 KEMP BLVD., SUITE 810 WICHITA FALLS, TEXAS 76308 (940) 691-7600
10 11 12 13
FOR THE DEFENDANT: KIPP AND CHRISTIAN BY: SHAWN MC GARRY, ESQ. GARY T. WIGHT, ESQ. 10 EXCHANGE PLACE, 4TH FLOOR SALT LAKE CITY, UTAH 84111 (801) 521-3773
14 15 16 17
SHOOK HARDY & BACON BY: SCOTT W. SAYLER, ESQ. DOUGLAS S. BECK, ESQ. JENNIFER M. STEVENSON, ESQ. 2555 GRAND BOULEVARD KANSAS CITY, MISSOURI 64108 (816) 474-6550
18 19 20 21 COURT REPORTERS:
22 23 24
RAYMOND P. FENLON PATTY WALKER 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634
25
1075
App. 598
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1 2 3 4 5 6
I-N-D-E-X
7 8 9
WITNESS
DIRECT
CROSS
REDIRECT
RECROSS
10 11
KIM PASSEY DEPOSITION.............................PAGE 1077
12
PLAINTIFF'S CLOSING ARGUMENT......................PAGE 1082
13
DEFENDANTS' CLOSING ARGUMENT......................PAGE 1123
14
PLAINTIFF'S CLOSING ARGUMENT IN REBUTTAL..........PAGE 1140
15 16 17 18 19 20 21 22 23 24 25
1076
App. 599
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1
MR. ANDERSON:
2
THE COURT:
3
THAT'S ALL WE HAVE, YOUR HONOR.
ALL RIGHT.
THE DEPOSITION IS OVER.
ANYTHING MORE?
4
MR. ANDERSON:
5
THE COURT:
ALL RIGHT.
7
MR. WIGHT:
YES, YOUR HONOR.
8
THE COURT:
OKAY.
6
9
PLAINTIFF WILL REST AND CLOSE. DOES THIS CONCLUDE THE
EVIDENCE?
WHAT WE'LL DO IS WE'RE GOING TO
TAKE ABOUT A 10 MINUTE BREAK SO THAT THE ATTORNEYS CAN GET
10
SET UP FOR CLOSING, SO I CAN MAKE SURE THE COPIES OF THE JURY
11
INSTRUCTIONS ARE READY TO GO, THEN WE'LL COME BACK AND BEGIN
12
OUR CLOSINGS. (JURY EXCUSED)
13 14 15 16 17
THE COURT:
OKAY.
BE, PLAINTIFF, YOUR INITIAL CLOSING? MR. ANDERSON:
THE COURT:
19
MR. MC GARRY:
20
THE COURT:
22 23 24 25
MR. GANT WILL BE AN HOUR, AND THEN
I'LL FINISH WITH A 30 MINUTE CLOSING.
18
21
HOW LONG IS YOUR CLOSING GOING TO
ALL RIGHT.
AND THEN YOU, SIR?
LESS THAN THAT.
WE'LL TAKE ABOUT 10 MINUTES.
IN ABOUT
THREE MINUTES YOU'LL GET YOUR JURY INSTRUCTIONS. YES, SIR. MR. WIGHT:
YOUR HONOR, WE WOULD AGAIN ASSERT OUR
MOTION FOR JUDGMENT AS A MATTER OF LAW. THE COURT:
IS THIS THE TIME?
SURE.
1079
App. 602
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1
MR. WIGHT:
THANK YOU, YOUR HONOR.
WITH REGARD TO
2
PLAINTIFF'S NEGLIGENCE, STRICT LIABILITY AND WARRANTY CLAIMS,
3
WE WOULD AGAIN ASSERT THAT THOSE CLAIMS SHOULD BE DISMISSED AS
4
A MATTER OF LAW.
5
INTERPRETATION OF THAT LAW, PLAINTIFF HAS THE BURDEN TO SHOW
6
THAT THE PRODUCT WAS DANGEROUS TO AN EXTENT BEYOND WHICH WOULD
7
BE CONTEMPLATED BY THE ORDINARY AND PRUDENT BUYER. IN THIS CASE WE HAVE HAD NO EVIDENCE OF WHAT THE ORDINARY
8 9
UNDER UTAH LAW AND THE TENTH CIRCUIT'S
AND PRUDENT BUYER BELIEVES TO BE SAFE USES OF THE PRODUCT.
10
WE'VE HAD NO EVIDENCE THAT SUCH A BUYER OR ORDINARY USER WOULD
11
EXPECT THAT INSERTING PORTIONS OF THE CONTAINER WHILE FILLED
12
WITH GASOLINE INTO A BURNING STOVE WOULD BE CONSIDERED SAFE. ON THOSE GROUNDS, YOUR HONOR, WE WOULD AGAIN ASSERT THAT
13 14
PLAINTIFF'S NEGLIGENCE, STRICT LIABILITY AND WARRANTY CLAIMS
15
BE DISMISSED AS A MATTER OF LAW. WITH REGARD TO PLAINTIFF'S NEGLIGENT MISREPRESENTATION
16 17
CLAIM, WE WOULD AGAIN ASSERT THAT PLAINTIFF HAS PRESENTED NO
18
EVIDENCE REGARDING WHAT IMPORTANT FACT BLITZ AFFIRMATIVELY
19
REPRESENTED TO HIM THAT WAS IMPROPER.
20
EVIDENCE OF WHAT THAT IMPORTANT FACT IS.
21
ANALYSIS OF THE LAW REGARDING WHETHER SIMPLY PLACING SOMETHING
22
INTO THE MARKETPLACE BECOMES AN AFFIRMATIVE REPRESENTATION.
23
SO, YOUR HONOR, WE WOULD AGAIN ASSERT THAT PLAINTIFF'S
THERE HAS BEEN NO THERE'S BEEN NO
24
NEGLIGENT MISREPRESENTATION CLAIM BE DISMISSED AS A MATTER OF
25
LAW.
1080
App. 603
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AND, FINALLY, WITH REGARD TO PLAINTIFF'S CLAIM FOR
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PUNITIVE DAMAGES, AS ARGUED PREVIOUSLY, THERE HAS BEEN NO
3
EVIDENCE THAT BLITZ ACTED IN A WILLFUL, CARELESS OR RECKLESS
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MANNER WITH REGARD TO PLAINTIFF DAVID CALDER.
5
WITH THE STANDARDS IN PLACE AT THE TIME THIS CONTAINER WAS
6
ALLEGEDLY SOLD.
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ACTIONS THAT WERE DANGEROUS.
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PLAINTIFF HEEDED THOSE WARNINGS, THIS ACCIDENT WOULD NOT HAVE
9
OCCURRED.
BLITZ PROPERLY WARNED PLAINTIFF REGARDING
THE COURT:
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BLITZ COMPLIED
AND FINALLY, YOUR HONOR, HAD
THANK YOU VERY MUCH.
I THINK GIVEN THE
11
STANDARD OF HOW I MUST JUDGE THE EVIDENCE AT THIS STAGE, THAT
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THERE IS SUFFICIENT EVIDENCE ON ALL CLAIMS TO GO TO THE JURY.
13
ALL RIGHT, 10 MINUTE BREAK.
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MR. MC GARRY:
15
THE COURT:
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MR. MC GARRY:
YOUR HONOR, ONE LAST THING.
YES, SIR. DURING THE COURSE OF TRIAL BOTH OF
17
US, BOTH SIDES, WE HAD PREVIOUSLY INDICATED WE MAY BE CALLING
18
WITNESSES THAT WE DIDN'T.
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WILL DISCUSS THAT THE OTHER PARTY DIDN'T CALL WITNESSES AND
20
MAKE ANY COMMENT ABOUT THAT.
I WILL TRUST THAT NEITHER OF US
MR. ANDERSON:
THAT CERTAINLY WON'T BE A PROBLEM
23
MR. MC GARRY:
ALL RIGHT, THANK YOU.
24
THE COURT:
25
(RECESS AT 9:41 A.M.
21 22
WITH US.
ALL RIGHT. TRANSCRIPT CONTINUES ON PAGE 1082)
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(9513I)
2 3 4 5 6 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
8
CENTRAL DIVISION
9
______________________________________________________________
10 11
DAVID CALDER, INDIVIDUALLY,AND AS FATHER AND GUARDIAN OF HMP, A DECEASED MINOR,
12
PLAINTIFF,
13 14 15
CASE NO. 2:07-CV-387TC
VS. BLITZ U.S.A., INC.,
SALT LAKE CITY, UTAH
DEFENDANT.
NOVEMBER 9, 2010
16
______________________________________________________________
17
JURY INSTRUCTION CONFERENCE BEFORE THE HONORABLE TENA CAMPBELL UNITED STATES DISTRICT COURT JUDGE
18 19 20 21 22 23 24 25
1
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APPEARANCES:
3 4
FOR THE PLAINTIFF:
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WINDER & COUNSEL BY: DON WINDER, ESQ. BENTON GAINES ROSS, ESQ. 175 WEST 200 SOUTH, SUITE 4000 P.O. BOX 2668 SALT LAKE CITY, UTAH 84110 (801) 322-2222
6 7 8
THE ANDERSON LAW FIRM BY: HANK ANDERSON, ESQ. GANT A. GRIMES, ESQ. 4245 KEMP BLVD., SUITE 810 WICHITA FALLS, TEXAS 76308 (940) 691-7600
9 10 11 12 FOR THE DEFENDANT:
13 KIPP AND CHRISTIAN BY: SHAWN MC GARRY, ESQ. GARY T. WIGHT, ESQ. 10 EXCHANGE PLACE, 4TH FLOOR SALT LAKE CITY, UTAH 84111 (801) 521-3773
14 15 16
SHOOK HARDY & BACON BY: SCOTT W. SAYLER, ESQ. DOUGLAS S. BECK, ESQ. JENNIFER M. STEVENSON, ESQ. 2555 GRAND BOULEVARD KANSAS CITY, MISSOURI 64108 (816) 474-6550
17 18 19 20 21 22 23 24
COURT REPORTERS: RAYMOND P. FENLON PATTY WALKER 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634
25
2
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THE COURT:
2
MR. ANDERSON:
3
THE COURT:
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NOW ARE READY TO GO.
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BE ABLE TO FOLLOW ALONG.
6
ARE ON A SCREEN.
7
DO YOU HAVE AN EXTRA COPY OF YOURS?
AND THEN WE CHANGE H.M.P. TO HALIE. WE'RE OKAY WITH THAT.
ALL RIGHT.
SO WITH THOSE CHANGES, MINE
LET'S SEE YOURS.
I DON'T KNOW IF I'LL
MINE ARE ON A SCREEN.
YOURS OF MINE
SO DO WE HAVE THEM IN WRITTEN FORM ANYWHERE?
8
MR. SAYLER:
9
THE COURT:
YES, YOUR HONOR. THANK YOU.
OKAY.
WHICH ONES AM I NOT
10
PUTTING IN THAT YOU BELIEVE NECESSARY?
11
LET ME LOOK AT IT, AND THEN TELL ME WHY, MR. SAYLER OR
12
MR. WIGHT.
13
MR. SAYLER:
14
THE COURT:
15
MR. SAYLER:
16
TELL ME BY NUMBER.
STARTING AT PAGE 39. OKAY.
AND YOU BELIEVE THAT --
THIS IS A MUJI ACCEPTED STATE OF THE
ART EXCEPTION. THE COURT:
17
IT APPLIES HERE BECAUSE YOU BELIEVE THAT
18
THE STATE OF THE ART BASED UPON THE STANDARDS WAS NO FLAME
19
ARRESTOR?
20
MR. SAYLER:
WE BELIEVE THAT THE EVIDENCE IN THIS
21
CASE HAS, PURSUANT TO THE COURT'S IN LIMINE RULINGS, BEEN
22
FOCUSED UPON THE STATE OF KNOWLEDGE AS OF APRIL 1999.
23
THE COURT:
24
MR. SAYLER:
25
RIGHT. AND THAT IS CERTAINLY ECHOED THROUGHOUT
MANY, MANY OF THE COURT'S EVIDENTIARY RULINGS AND THE EVIDENCE
28
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THAT WE HAVE BEEN ALLOWED TO PRESENT.
2
THE ART -- THE STATE OF THE ART DOCTRINE ABSOLUTELY APPLIES IN
3
THIS CASE AS WE'VE ARGUED AND DISCUSSED AT LENGTH. THE COURT:
4
WE BELIEVE THE STATE OF
IS STATE OF THE ART, MR. SAYLER, IS THAT
5
THE SAME AS THE CONCEPT THAT THE DESIGN DEFECT HAD TO BE
6
PRESENT AT THE TIME IT WENT OUT ONTO THE MARKET? MR. SAYLER:
7
IT'S A DIFFERENT CONCEPT IN THAT IT
8
RELATES TO THE KNOWLEDGE THAT EXISTED AT THAT TIME.
9
I WOULD AGREE THAT THEY'RE RELATED IN THAT, YES, THE DESIGN
10
SO WHILE
DEFECT HAD TO EXIST AT THE TIME THE PRODUCT WAS SOLD. THE COURT:
11
BECAUSE THAT'S ALL -- LET ME JUST STOP
12
YOU.
13
POINTED OUT, THAT THROUGHOUT, AFTER '99 NOTHING WAS RELEVANT.
14
BUT DOES THAT MEAN THAT STATE OF THE ART APPLIES HERE IN THIS
15
CASE?
16
THAT'S ALL I RULED ON.
AND I AGREED WITH YOU, AS YOU
I REALLY DON'T KNOW. MR. SAYLER:
ABSOLUTELY.
AND WE BELIEVE THIS VERY,
17
VERY FIRMLY, BECAUSE ALTHOUGH IT'S TRUE THAT -- IT IS TRUE
18
THAT A DESIGN DEFECT HAD TO EXIST AT THE TIME THE PRODUCT WAS
19
MANUFACTURED AND SOLD, STATE OF THE ART DEFINES THE CONCEPT OF
20
WHAT CONSTITUTES A DEFECT, AND IT'S PREMISED UPON WHAT WAS --
21
WHAT IS DESCRIBED IN THIS UTAH MODEL JURY INSTRUCTION AS TO
22
WHAT CONSTITUTES STATE OF THE ART IN TERMS OF KNOWLEDGE AND
23
WHAT WAS KNOWN AT THAT RELEVANT TIME.
24 25
SO WE BELIEVE IT'S EXTREMELY IMPORTANT THAT A STATE OF THE ART INSTRUCTION BE GIVEN HERE, ESPECIALLY IN LIGHT OF THE
29
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WAY THE EVIDENCE WAS PRESENTED IN THIS TRIAL, WHERE THE FOCUS
2
AS IT RELATED TO THIS ISSUE WAS ALMOST ENTIRELY UPON WHAT WAS
3
KNOWN AS OF APRIL 1999. THE COURT:
4 5
ALL RIGHT.
AND YOUR RESPONSE,
PLAINTIFF? MR. ROSS:
6
YES, YOUR HONOR.
THERE IS PLENTY OF
7
EVIDENCE IN THE RECORD TO SAY THAT BLITZ KNEW ABOUT FLAME
8
ARRESTORS, FLASHBACKS, THAT OTHER CONSUMER GAS CANS AS OF 1999
9
HAD FLAME ARRESTORS IN THEM.
AND TO PUT A STATE OF THE ART
10
INSTRUCTION IN THAT CASE WITH THE EVIDENCE THAT THE JURY HAS
11
HEARD IS A COMMENT ON THE WEIGHT OF THE EVIDENCE. THE COURT:
12
YEAH.
I'M GOING TO DENY IT, AND I'LL
13
TELL YOU WHY.
14
OUR CASE, AND TO PUT IN STATE OF THE ART WOULD BE CONTRARY AND
15
CONFUSING, BUT YOUR OBJECTION IS NOTED. OKAY.
16
I BELIEVE THAT 16 AND 17 COVER THE ISSUES IN
WHAT ELSE?
17
MR. SAYLER:
18
THE COURT:
PAGE 43. OKAY.
19
ONE.
20
WITH 32.
21
SUBSTITUTE YOURS FOR MINE?
22
ALL.
23
TELL ME WHAT'S OUR COMPARATIVE
LET'S SEE IF IT DIFFERS SIGNIFICANTLY. WHAT'S LACKING THERE?
COMPARE THIS
WOULD YOU RATHER JUST
EXCEPT IT DOESN'T COVER IT QUITE
I CAN SUBSTITUTE YOUR 43 FOR MY 32. MR. SAYLER:
WE BELIEVE THAT BOTH WOULD BE
24
APPROPRIATE, BUT WE WOULD PREFER A SUBSTITUTION OVER YOUR 32
25
IN LIEU OF OUR PAGE 43 PROPOSED INSTRUCTION.
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App. 641
Appellate Case: 11-4039
Document: 01018652041
Date Filed: 06/02/2011
Page: 119
CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 2nd day of June 2011, he caused an electronic copy of the foregoing Brief of Defendant-Appellant to be served by ECF and a hard copy of the Brief to be served by Federal Express upon the following attorneys: Hank Anderson, Esq. THE ANDERSON LAW FIRM 4245 Kemp Boulevard, Suite 810 Wichita Falls, TX 76308 Don Winder, Esq. WINDER & COUNSEL, P.C. 175 West 200 South, Suite 4000 Salt Lake City, UT 84101 /s/ Christopher Landau______ Christopher Landau, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000
[email protected]
