Kinser v. Gehl Company

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 27 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MARY KINSER, individually and as
heir at law and personal representative
of the estate of Tim Kinser, deceased,

Plaintiff-Appellee,

v. No. 98-3152

GEHL COMPANY,

Defendant-Appellant.

APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 96-2361-EEO)

E. Wayne Taff, of Sherman, Taff & Bangert, P.C., Kansas City, Missouri (Alan
Epstein, of Hall & Evans, Denver, Colorado, and Steven F. Coronado, of
Sherman, Taff & Bangert, P.C., Kansas City, Missouri, with him on the brief), for
the appellant.

Daniel F. Church, of McAnany, Van Cleave & Phillips, P.A., Lenexa, Kansas
(Byron A. Bowles, of McAnany, Van Cleave & Phillips, P.A., Lenexa, Kansas,
and Kenneth J. Eland, of Sloan & Eland, Hoxie, Kansas, with him on the brief),
for the appellee.

Before KELLY, McWILLIAMS, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.
 Defendant Gehl Company appeals from the district court’s denial of its

motion for judgment as a matter of law or, in the alternative, for new trial

following a jury verdict in favor of plaintiff in this product liability lawsuit. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Prior to his death, Tim Kinser operated a farm in Jennings, Kansas. On

August 17, 1994, while baling alfalfa with his Gehl model 1870 big round baler,

Kinser became entangled up to his waist in the compression rollers of the baler’s

feed intake unit. Farmhand Jeff Rhoades first arrived on the scene and, noting the

tractor’s engine was on and the power take-off (PTO) device, which transmits

power from the tractor to the baler, was still engaged, turned off all machinery

and attempted to assist Kinser in extricating himself from the baler. Unable to

provide much help on his own, Rhoades obtained the assistance of fellow farmer

George Gassman and the two used bumper jacks and an acetylene torch to free

Kinser. Although an ambulance immediately transported Kinser to the Decatur

County Hospital, he lost consciousness during the ride and was pronounced dead

within thirty minutes of his arrival at the hospital.

In August 1996, plaintiff Mary Kinser, 1
on behalf of herself and her

1
Unless stated otherwise, all references to Kinser in this memorandum are
(continued...)

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decedent husband’s estate, filed the instant product liability diversity action

against Gehl, alleging (1) strict liability for manufacturing and selling an

unreasonably dangerous product, (2) negligent design and manufacture, and (3)

breach of implied warranty by introducing into the stream of commerce an

unreasonably dangerous product that was not fit for its intended purpose.

II.

Much of the trial revolved around the design evolution of big round balers.

There are two types of such balers on the market: open-throat models and closed-

throat models. An open-throat baler utilizes spring-loaded tines to pick up crops

off the ground and feeds the material directly into a rotating bale chamber. A

closed-throat baler, which was the design of the Gehl 1870 baler used by Kinser,

employs a similar pick-up system but, before feeding the crops into the bale

chamber, first passes them through a series of compression rollers. These

compression rollers create a higher density bale by packing down the initial core

of the bale. Once the bale in the chamber has reached the desired size, an

automatic tying system is triggered. This mechanism, located on the front of the

baler just above the feed intake area, activates an arm that swings twine across the

bale in the chamber and cuts the twine when the bale is fully wrapped.

1
(...continued)
to the decedent, Tim Kinser.

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 Big round balers were invented in the early 1970s, and Gehl began

manufacturing the machines in 1974. In the first decade of the big round baler’s

existence, numerous manufacturers, including Gehl, built both open-throat and

closed-throat models. By the mid-1980s, however, every American manufacturer

other than Gehl, for reasons unspecified in the record, had shifted its production

exclusively to open-throat balers. Since that time, Gehl has been the sole

domestic manufacturer of closed-throat balers.

Gehl’s closed-throat balers have undergone multiple design changes from

the time they first were manufactured in 1974. The model 1870, which was

designed in 1989 and initially sold the following year, is a third-generation

machine. (Kinser’s specific baler was manufactured on January 9, 1991, and was

purchased by him from a licensed dealer on June 18, 1991.) Notwithstanding the

general design evolution, numerous former and current Gehl executives observed

that the feed intake area of the baler, with which we are concerned here, has

remained essentially the same in all models.

Like all balers discussed in this case, the model 1870 is powered by a PTO

and is operative only if the tractor is on, functioning at the same revolutions per

minute as the tractor’s engine. The only shut-off mechanism for the PTO and,

hence, the baler, is located next to the driver’s seat on the tractor.

Because of the many moving parts in the 1870 baler’s feed intake and

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assembly areas, Gehl has issued an array of warnings in its operator’s manual and

posted a series of warning decals on the machine itself detailing the proper

handling of the baler. These warnings direct users to follow a “mandatory safety

shutdown procedure” before unclogging, cleaning, adjusting, lubricating or

servicing the unit. Under this procedure, users must (1) disengage the PTO, (2)

shut off the tractor engine and remove the starter key, (3) wait for all movement

to stop, and (4) remove all power connections, including the PTO device, from the

tractor. It is undisputed that, had Kinser adhered to these instructions, he would

not have been injured.

Despite this mandatory shutdown procedure, numerous farmers testified the

nature of their work makes it impracticable to abide by the instructions. Farmers

frequently work alone and often have only a small window of time in which to

harvest crops at ideal climatic conditions. Several farmers noted that it is

common for them to get off of their tractor with the PTO engaged to, inter alia ,

assess feeding problems and general mechanical malfunctions in the feed intake

unit, and adjust the twine in the automatic tying mechanism. With respect to the

tying mechanism, the twine often breaks or the catch fails to secure one or both of

the twine strings. As a result, the twine eludes the cutoff device, leaving twine

dangling in front of the baler. A farmer is then forced to sit or lie on the ground

directly in front of the baler’s pick-up assembly area and rethread the twine. Such

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a position puts the operator under the PTO tongue and within several inches of

the pick-up tines.

As there were no witnesses to the injury, it is unclear exactly how Kinser

entangled himself in his baler’s pick-up assembly area. Several individuals

speculated Kinser was either attempting to unplug 2
the baler or fix the automatic

tying mechanism. Plaintiff’s expert, Dr. Jerry Purswell, theorized that, as either

scenario would have put Kinser within inches of the pick-up tines, Kinser likely

lost his footing and was pulled into the machine. Plaintiff’s other expert, William

Kennedy, echoed this testimony.

Plaintiff presented extensive evidence on the purported defects in the 1870

baler’s design. There is no dispute the baler’s feed intake area and compression

roller design represent potential hazards. In fact, the Farm and Industrial

Equipment Institute (FIEI), a trade organization comprised of farm and industrial

equipment manufacturers, discussed these hazards at a series of meetings in 1977

and 1978. The FIEI’s Big Round Baler Manufacturers’ Safety Committee, of

which former Gehl vice-president of engineering Donald Burrough was a member,

identified entanglement in the feed intake/assembly area as a particular hazard

that could lead to the loss of life and limbs and suggested such countermeasures

A “plug” occurs when too much crop enters the baler too quickly and the
2

compression rollers stop turning.

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as additional shielding or the all-out elimination of compression rollers. During

its six-year existence, the committee also discussed the operational difficulties

and accident experiences of all big round baler manufacturers.

Dr. Purswell opined the 1870 baler was defectively designed. He claimed

the FIEI’s extensive analysis of feed entanglement injuries should have alerted

Gehl to the likelihood of Kinser’s injury. Purswell further observed the mere

posting of warnings is ordinarily insufficient to make a product safe. He noted

that under a proper “design hierarchy,” warnings constitute an adequate response

to a hazard only if the manufacturer is unable to either eliminate the hazard

altogether or erect a guard to shield the hazard. Purswell suggested a number of

ameliorative possibilities that could have greatly reduced the severity of Kinser’s

injuries, including the installation of an automatic shut-off mechanism (in the

form of a lanyard or cable) on the front of the baler, movement of the pick-up

tines further back along the bottom of the baler, movement of the hay holddown

bar (i.e., wind guard) and/or elongation of the PTO tongue to minimize operators’

potential proximity to the feed intake area, and construction of a guard in front of

the pick-up tines. Purswell highlighted the feasibility of the guarding proposal by

noting that John Deere previously had adopted similar modifications to its model

510 closed-throat baler.

Elaborating on Purswell’s testimony, Kennedy referenced a guarding device

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on Vermeer’s model 504-C closed-throat baler, maintaining such a guard easily

could have been adapted to the Gehl 1870 baler and could have prevented

Kinser’s death. Kennedy further underscored the importance of “human factors”

in product safety design (how operators typically use the machinery). Based on

his own discussions with farmers and review of FIEI documents, Kennedy insisted

a prudent manufacturer would know farmers frequently step off their tractors and

approach attached balers without first disengaging the PTO. He noted that while

farmers recognize the potential for injury inherent in this procedure, they do not

fully appreciate the magnitude of the risk involved. Kennedy then remarked that

two prior accidents involving similar feed intake area injuries in Gehl-

manufactured closed-throat balers—the Birchler and Neill cases—should have

alerted the company to the need for design changes.

Plaintiff also adduced testimony that not only did Gehl fail to construct any

guarding or shielding in front of the 1870 baler’s feed intake area, but the

company never even considered the baler’s potential hazards in its in-house safety

committee meetings. In response to plaintiff’s request for documents regarding

the safety review of the 1870 baler, Gehl produced a single sheet of paper with

one line of text on it. Other than suggesting a product safety review was

conducted on the 1870 baler in November 1989, the sheet of paper offers no

insight whatsoever into what, if any, hazards the company identified in its design

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of the baler.

According to Burrough, Gehl itself never investigated or studied the issue

of human entanglement in closed-throat balers. Kim Viesselmann, Gehl’s current

project engineer in charge of big round balers, similarly testified he was unaware

of any such studies. Viesselmann also noted Gehl has never considered placing a

shield or guard in front of the feed intake area nor has it undertaken a “human

factors” analysis to assess operator reactions to hazards or the efficacy of its

warning instructions and decals. He s uggested Gehl has not erected any shielding

or guarding in front of the feed intake area because the company does not expect

operators to be in that area with the PTO engaged. The testimony of Lance

Henrickson, Gehl’s product safety engineer, was largely to the same effect.

In its defense, Gehl challenged the qualifications of plaintiff’s expert

witnesses, offered testimony questioning the feasibility of plaintiff’s proposed

shielding/guarding designs, highlighted the dissimilarities in designs between the

1870 baler and other closed-throat balers employing various shielding/guarding

devices, and suggested Kinser’s own failure to recognize an open and obvious

danger was the cause of his injuries. Gehl also presented its own expert witness,

Dr. Bobby Clary, who holds a Ph.D. in agricultural engineering and has extensive

experience in farming and agricultural equipment design. Based on his own

review of the 1870 baler, combined with his farming experience and discussion

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with other farmers, Clary opined that the machine was not dangerous beyond the

expectations of farmers who use it.

Following a seven-day trial, the jury returned a verdict finding Gehl 55% at

fault and Kinser 45% at fault and assessing $3,849,181 in damages. After making

the requisite comparative fault and statutory cap reductions, the district court

entered judgment in favor of plaintiff in the amount of $817,049.55. Gehl filed a

post-trial motion for judgment as a matter of law, or, alternatively, for new trial.

The district court denied the motion in a written order.

III.

Gehl contends plaintiff advanced insufficient evidence to support her

product liability claims, thereby entitling the company to judgment as a matter of

law. Gehl further contends the district court made a number of erroneous

evidentiary rulings that entitle the company to a new trial.

Denial of Motion for Judgment as a Matter of Law

We review de novo the district court’s denial of a litigant’s motion for

judgment as a matter of law filed pursuant to Fed. R. Civ. P. 50(b). Vining v.

Enterprise Fin. Group, Inc. , 148 F.3d 1206, 1213 (10 th
Cir. 1998). We will

reverse such a ruling “only if the evidence points but one way and is susceptible

to no reasonable inferences supporting the party opposing the motion.” Id.

(citation omitted). In our review, “we may not weigh the evidence, pass on the

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credibility of witnesses, or substitute our judgment for that of the jury.”

Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1522 (10 th
Cir.

1997). Further, we must construe all evidence and the inferences therefrom in the

light most favorable to the non-moving party. Id.

Like the district court, we must evaluate the Rule 50(b) motion by looking

at all evidence admitted at trial, even that which was admitted in error. Schudel

v. General Elec. Co. , 120 F.3d 991, 995 (9 th
Cir. 1997), cert. denied , 118 S. Ct.

1560 (1998); Jackson v. Pleasant Grove Health Care Ctr. , 980 F.2d 692, 695-96

(11 th Cir. 1993); Douglass v. Eaton Corp. , 956 F.2d 1339, 1343-44 (6 th
Cir. 1992);

Persinger v. Norfolk & W. Ry. Co. , 920 F.2d 1185, 1188-89 (4 th
Cir. 1990);

Sumitomo Bank v. Product Promotions, Inc. , 717 F.2d 215, 218 (5 th
Cir. 1983);

Midcontinent Broad. Co. v. North Cent. Airlines, Inc. , 471 F.2d 357, 358-59 (8 th

Cir. 1973); contra Lightning Lube, Inc. v. Witco Corp. , 4 F.3d 1153, 1199-1200

(3d Cir. 1993).

This rule promotes certainty: litigants need not supplement
conditionally admitted evidence, perhaps unnecessarily; and district
courts need not speculate as to what other evidence might have been
offered if the evidence had been excluded at trial. The rule promotes
fairness: punishing a litigant for the court’s erroneous admission of
evidence is unfair; and the remedy of a new trial is available to put
both sides on an equal footing.

Schudel , 120 F.3d at 995 (citing Jackson , 980 F.2d at 696 n.4).

1. Strict Liability

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 Kansas has adopted the strict liability doctrine set forth in Restatement

(Second) of Torts § 402A (1964), and its accompanying comments. Jenkins v.

Amchem Prods., Inc. , 886 P.2d 869, 886 (Kan. 1994) (citing Brooks v. Dietz , 545

P.2d 1104, 1108 (Kan. 1976)). The Kansas pattern instruction on strict liability,

which the Kansas Supreme Court has embraced, see id. , and which the district

court gave here, tracks the language of the restatement. See Pattern Instructions

Kansas–Civil 128.17 (3d ed. 1997). The instruction provides:

A manufacturer who sells a product in a defective condition which is
unreasonably dangerous to the user is subject to liability for physical harm
thereby caused to the ultimate user if:

(1) The manufacturer is in the business of making such a product; and

(2) It is expected that the product will reach and does reach the user
without substantial change in the condition in which it is sold.

This rule applies although the manufacturer has exercised all possible care
in the preparation and sale of its product and although the manufacturer has
not bought the property from or entered into any contractual relation
directly with the manufacturer.

A product is in a defective condition if it has a defect in design, and such
defect existed at the time the product left the manufacturer’s hands.

A defective condition is unreasonably dangerous if it is dangerous when
used in the way it is ordinarily used considering the product’s
characteristics and common usage, and is dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchased
it, with the ordinary knowledge common to the community as to its
characteristics.

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Id. (emphasis added). 3

Gehl insists its 1870 baler is not unreasonably dangerous because the

evidence was undisputed that foreseeable users of the baler did not consider it

more dangerous than expected “when used safely.” We disagree. In evaluating

whether a defective condition is unreasonably dangerous, the relevant inquiry

focuses on the danger of the product when used in the way it is ordinarily used,

not merely “when used safely.” See Lester v. Magic Chef, Inc. , 641 P.2d 353,

357-61 (Kan. 1982) (adopting the language of Restatement (Second) of Torts §

402A cmt. i). Foreseeable misuse of a product can give rise to a defective design

claim. See Kan. Stat. Ann. § 60-3305. Although some farmers testified they

never position themselves directly in front of the baler’s feed intake area with the

PTO engaged, not all did. A number remarked that the inherent time constraints

in baling often compel them to diagnose general mechanical problems or adjust

the automatic tying mechanism with the PTO still engaged.

Gehl next suggests plaintiff failed to prove the feasibility of an alternative

design. Plaintiff advanced sufficient evidence of feasible alternative designs,

however, by pointing out the guarding devices on the John Deere 510 and

Vermeer 504-C closed throat balers, both of which were available at the time the

3
The district court appropriately substituted the word “community” in the
last sentence with “foreseeable class of users.”

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Gehl 1870 baler was first sold. In any event, Kansas law does not mandate such

evidence as a prerequisite to recovery in a defective design product liability case.

See Jenkins , 886 P.2d at 890 (“[E]vidence of a feasible alternative design is

admissible in design defect cases, though it probably is not required.”); Siruta v.

Hesston Corp. , 659 P.2d 799, 808 (Kan. 1983) (“In products liability cases, the

plaintiff in sustaining its burden to prove that a product is defectively designed

may properly show the feasibility of a safer design.”). Like many other states,

Kansas law holds that a feasible alternative design is merely one factor a jury may

consider in determining whether a product is defective. See Potter v. Chicago

Pneumatic Tool Co. , 694 A.2d 1319, 1331-33 & n.11 (Conn. 1997) (cataloguing

cases on the four approaches courts have taken on this issue).

Gehl further contends it is entitled to judgment as a matter of law because

Purswell and Kennedy were unqualified to render expert opinions on the design of

the 1870 baler. We reject this argument. The qualification of an expert witness is

a preliminary question of law, Fed. R. Evid. 104(a), which, assuming an objection

has been registered, the district court must assess as part of its gatekeeping

function prior to admitting to the testimony. See Daubert v. Merrell Dow Pharm.,

Inc. , 509 U.S. 579, 592-93 (1993). Notwithstanding Gehl’s pre-trial motion in

limine , the court refused to conduct a Daubert hearing in order to evaluate the

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reliability of plaintiff’s experts and the relevance of their proposed testimony. 4

Kinser v. Gehl Co. , 989 F. Supp. 1144, 1147 (D. Kan. 1997). The remedy for this

error, however, is, at best, a new trial. As noted above, we must analyze the

denial of a motion for judgment as a matter of law by looking at all evidence

admitted at trial, including evidence that should have been excluded. Schudel ,

120 F.3d at 995. Looking at all evidence admitted at trial, we conclude the record

supports a finding of defective design strict liability.

2. Negligence

The record also is sufficient to support the jury’s verdict on a negligence-

based theory.

[T]he characteristic that distinguishes strict liability from negligence
is proof of actual or constructive knowledge of risk: In a negligence
action we focus on the defendant’s conduct and require plaintiff to
show defendant acted unreasonably in light of a known or
constructively known risk. In strict liability actions, on the other
hand, we focus not on the reasonableness of a defendant’s conduct but
on the product, and we either ignore the question of a manufacturer’s
actual or constructive knowledge of risk (as in a ‘consumer
expectations’ design defect case) or we in effect impute to the
manufacturer defendant current scientific knowledge of the risk
caused by his product (as in a risk/benefit design defect balancing
test).

Johnson v. American Cyanamid Co. , 718 P.2d 1318, 1324 (Kan. 1986) (citation

As noted in our discussion of Gehl’s new trial request, the district court’s
4

error was entirely understandable in light of our then-controlling precedent in
Compton v. Subaru of Am., Inc. , 82 F.3d 1513 (10 th Cir. 1996).

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omitted).

A manufacturer has a duty to use ordinary care in the design of a product so

that the product will be reasonably safe for the use for which it is intended or

which can reasonably be anticipated. Garst v. General Motors Corp. , 484 P.2d

47, 60 (Kan. 1971); Pattern Instructions Kansas–Civil 128.02 (3d ed. 1997). A

number of factors are considered in assessing whether a manufacturer has

employed the requisite amount of due care, including (1) whether others in the

field are using the same design or a safer design, (2) whether a safer design not

yet in use is known to be feasible, and (3) whether, in the case of a new product,

adequate testing has been conducted. Garst , 484 P.2d at 61. Although a

manufacturer has an obligation to exercise reasonable care in product design, the

manufacturer is not an insurer that its product is accident-proof or incapable of

producing injury. Id. Nor is the manufacturer required to adopt only those

features that “represent the ultimate in safety or design.” Id.

To prevail on a defective design negligence claim, a plaintiff must establish

that there was a defect in the product and not simply that a better design might

have been possible. Id.

To prove defective design, it is insufficient merely to assert that a
different design would have alleviated or averted the plaintiff’s
injuries, since it may be assumed that any particular accident involving
man and machine might have been avoided through a variation in the
design of the machine. [Moreover,] such a variation might greatly
magnify the chances of other sorts of mishaps taking place, or else

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 render the machine incapable of reasonably efficient performance of
its function.

Id. at 61 (quotation omitted). Evaluation of such a negligence claim entails a

risk-utility analysis in which the inherent risks associated with the product are

balanced against the product’s utility and the burden necessary to eliminate or

reduce the risk. Patton v. Hutchinson Wil-Rich Mfg. Co. , 861 P.2d 1299, 1310

(Kan. 1993) (citing Restatement (Second) of Torts §§ 291-293 (1964)). The

inquiry into defectiveness is confined to the time of sale. Id. at 1307. Kansas law

imposes no duty to recall or retrofit a product not defective at the time of sale:

If a product is not defective when it is first sold, it does not thereafter
become defective by reason of technological improvements or other
knowledge gained by the manufacturer. Foreseeability is the litmus
test of whether a manufacturer is liable for a product that is defective
when it is first sold.

Id.

In addition to the evidence outlined in our discussion of plaintiff’s strict

liability claim, there was testimony suggesting Gehl largely ignored the 1870

baler’s potential hazards in its product safety reviews. Gehl appears to have

conducted little or no investigation into the issue of human entanglement in the

baler’s feed intake area. Despite the fact that other manufacturers had erected

shielding and/or guarding around the pick-up assembly areas of their closed-throat

balers, Gehl never even considered installing such devices, thereby ignoring

proper design hierarchy. Although Gehl executives were aware of human

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entanglement injuries, the company apparently decided such injuries were

attributable to operator negligence and did not necessitate design changes. In

sum, there was ample evidence to establish negligence on the part of Gehl. 5

Denial of Motion for New Trial

Reiterating many of the same points raised in its post-trial motion, Gehl

contends it is entitled to a new trial because the district court erred in (1)

permitting Purswell and Kennedy to testify as expert witnesses, notwithstanding

their alleged lack of qualifications, (2) instructing the jury on a manufacturer’s

duty to test for defects, (3) admitting evidence of the Birchler accident, (4)

allowing Purswell and Kennedy to rely on and reference documents purportedly

from the FIEI, and (5) admitting Burrough’s deposition excerpts.

1. Qualifications of Plaintiff’s Expert Witnesses

Prior to trial, Gehl challenged the qualifications of plaintiff’s expert

witnesses and requested a Daubert hearing at which the court could assess the

relevance and reliability of the experts’ proposed testimony. Relying on our then-

controlling precedent in Compton v. Subaru of Am., Inc. , 82 F.3d 1513 (10 th
Cir.

1996), the district court denied the request, holding that a Daubert analysis was

Gehl has not specifically addressed the implied warranty theory in its brief.
5

For largely the same reasons outlined in our discussion of plaintiff’s remaining
theories, we believe the evidence was sufficient to support recovery under an
implied warranty theory.

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unnecessary inasmuch as “the testimony and opinions of Kennedy and Purswell

are based solely on engineering background and experience, and not upon a

particular methodology or technique.” Kinser , 989 F. Supp. at 1147. In a single

sentence, the court then stated plaintiff’s experts’ proposed testimony satisfied the

“traditional Rule 702 inquiry.” Id.

In Daubert , the Supreme Court held district judges must act as gatekeepers

in admitting expert testimony, thereby ensuring that such evidence is both

relevant and reliable. Daubert , 509 U.S. at 589.

Unlike an ordinary witness, an expert is permitted wide latitude to
offer opinions, including those that are not based on firsthand
knowledge or observation. Presumably, this relaxation of the usual
requirement of firsthand knowledge—a rule which represents a most
pervasive manifestation of the common law insistence upon the most
reliable sources of information—is premised on an assumption that the
expert’s opinion will have a reliable basis in the knowledge and
experience of his discipline.

Id. at 592 (internal citations omitted). Although we interpreted Daubert to be

limited to expert testimony grounded in some scientific principle or methodology,

see Compton , 82 F.3d at 1518-19, the Supreme Court recently rejected that

interpretation in Kumho Tire Co. v. Carmichael , 119 S. Ct. 1167, 1170 (1999).

The Court held that while the factors identified in Daubert are flexible and non-

exclusive, the testimony of all experts whose data, principles, methods, or

application are called into question must be assessed for relevance and reliability

as a precondition to admissibility. Id. at 1175.

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 Because the district court did not hold a Daubert hearing or make any

findings on the qualifications of plaintiff’s experts, our review is difficult. If the

court had conducted a Daubert analysis, we would examine its admissibility ruling

under an abuse of discretion standard. See General Elec. Co. v. Joiner , 118 S. Ct.

512, 519 (1997). Here we have no findings to review. Confronting a nearly

identical situation, the Fifth Circuit recently implied a trial court’s omission may

be harmless error if the record contains sufficient indicia of the experts’

qualifications. See Tanner v. Westbrook , 174 F.3d 542 (5 th
Cir. 1999). The Fifth

Circuit essentially undertook its own Daubert analysis based on the materials

submitted by both sides in regards to the defendant’s motion for a Rule 104(a)

hearing. Id. at 545-46. While this approach is generally reasonable, we do not

think it necessary to confine our review to the materials accompanying the

Daubert hearing request. Rather, we believe we may look at the entire record,

including testimony presented at trial.

Purswell has a bachelor’s degree in mechanical engineering, a doctorate in

industrial engineering, and has taught classes on “product design from an

ergonomics standpoint” (i.e., how individuals interact with products). He has

consulted for agricultural manufacturers in litigation on numerous occasions,

analyzing the adequacy of instructions, warnings, and guarding on certain farm

equipment. He also has published articles suggesting product warnings are

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limited in their ability to influence individuals to operate products safely.

These credentials alone do not qualify Purswell to testify as an expert in

this case on possible alternative designs. Indeed, Purswell acknowledged he has

no practical experience in mechanical design. He focuses solely on concepts and

has no expertise with respect to the design of products under a traditional

engineering method. He has never published a single paper examining any type

of agricultural equipment, never operated a big round baler, and, excluding this

case, never consulted on behalf of a plaintiff or manufacturer regarding big round

balers. In fact, other than familiarizing himself with the deposition testimony of

three farmers, Purswell has neither investigated nor spoken with any individual

regarding their experience with big round balers.

Furthermore, Purswell admitted there is a well-recognized methodology

which engineers in the field of product design must follow before recommending

a design for a particular piece of equipment. To propose a design concept or

design change without engaging in each of the steps of this methodology

contravenes the engineering code of ethics. Purswell conceded his recommended

changes for the 1870 baler were all mere concepts; he neither developed designs

nor tested the feasibility or safety of any of his proposals.

As for Kennedy, he has a bachelor’s degree in mechanical engineering and

now works as a “forensic engineer” at his own consulting firm focusing on

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product and vehicle accident reconstruction. He did not attempt to reconstruct

Kinser’s injury. In preparation for his testimony, Kennedy reviewed the

depositions of several farmers, traveled to western Kansas to take measurements

of and watch Kinser’s (repaired) 1870 baler in use, and examined both industry

standards publications and various big round baler manufacturers’ operator’s

manuals. Kennedy acknowledged, however, that he has never designed a piece of

agricultural equipment or operated a hay baler. After embracing Purswell’s

testimony regarding the necessity of following a strict engineering methodology

before proposing design solutions to a manufacturer, Kennedy also conceded he

had not adhered to that methodology before testifying on possible design changes

for the 1870 baler. He merely reviewed the production run of similar guarding

utilized by John Deere.

A number of circuits have suggested the testing of alternative design

proposals is often a critical component to the reliability of an engineer expert

witness’ testimony on this subject. See Dancy v. Hyster Co. , 127 F.3d 649, 651-

52 (8 th Cir. 1997); Watkins v. Telsmith, Inc. , 121 F.3d 984, 989-90 (5 th
Cir.

1997); Peitzmeier v. Hennessy Indus., Inc. , 97 F.3d 293, 296-98 (8 th
Cir. 1996);

Cummins v. Lyle Indus. , 93 F.3d 362, 368-69 (7 th
Cir. 1996). Hands-on testing,

of course, is not an absolute prerequisite to the admissibility of expert testimony.

Cummins , 93 F.3d at 369. An engineer expert could establish the reliability of his

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proposed design changes, for example, “through the review of experimental,

statistical, or other scientific data generated by others in the field.” Id. We need

not decide here the scope of any testing requirements. It is sufficient to say that

in the absence of some indicia of reliability of the expert’s proposed designs,

exclusion of expert testimony is appropriate.

As noted, most of the proposed design modifications discussed by Purswell

and Kennedy lacked an adequate foundation of reliability. Simply throwing out a

concept and suggesting it may be feasible is an insufficient basis “for relaxing the

usual first-hand knowledge requirement of the Federal Rules of Evidence on the

ground that the expert’s opinion has a reliable basis in knowledge and experience

of his discipline.” Id. Nevertheless, Purswell and Kennedy also recommended

guards/shielding which previously have been demonstrated feasible on the John

Deere 510 and Vermeer 504-C closed throat balers, both of which were in use

years before the Gehl 1870 baler first hit the market. Purswell and Kennedy

further testified that the use of such guards/shielding could have prevented or, at

a minimum, greatly reduced the severity of Kinser’s injuries. Although federal

law governs this admissibility issue, it is guided in part by the substantive state

law. Under Kansas law, “[o]ne of the most significant factors in [determining

whether a manufacturer has exercised due care in the design of its product] is

whether others in the field are using the same design, or a safer design.” Garst ,

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484 P.2d at 61. Accordingly, while we believe much of the expert testimony

rendered by Purswell and Kennedy should have been excluded under a Daubert

analysis, we conclude any error ultimately was harmless and a new trial is thus

unwarranted.

2. Duty to Test Instruction

Gehl claims the district court erred in submitting a failure to test instruction

to the jury. Gehl argues there was no evidence in the record as to what testing

should have been done or what testing would have revealed. In a diversity case,

the substance of a jury instruction is a matter of state law, but the grant or denial

of a tendered instruction is a procedural matter governed by federal law.

Wolfgang , 111 F.3d at 1525. When a party objects to instructions given at trial,

we conduct “a de novo review to determine whether, as a whole, the instructions

correctly stated the governing law and provided the jury with an ample

understanding of the issues and applicable standards.” Advantor Capital Corp. v.

Yeary , 136 F.3d 1259, 1265 (10 th
Cir. 1998) (internal quotation omitted).

Assuming the instruction properly sets forth the relevant law, we review the

district court’s decision to give the particular instruction for an abuse of

discretion. Allen v. Minnstar, Inc. , 97 F.3d 1365, 1368 (10 th
Cir. 1996).

The Kansas Supreme Court has described a manufacturer’s duty to test as

follows:

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 The rule is that a manufacturer has a duty to make such tests and
inspections, during and after the process of manufacture, as should be
recognized as being reasonably necessary to secure the production of a
safe product; and a manufacturer who negligently fails to use
reasonable care in making such tests and inspections, and thereby
produces a defective article which causes damage while being put to
an ordinary anticipated use, is liable for such damage.

Lindquist v. Ayerst Labs., Inc. , 607 P.2d 1339, 1350 (Kan. 1980) (quotation

omitted). We conclude the record justifies the issuance of a duty to warn

instruction. Plaintiff advanced sufficient evidence suggesting that, if Gehl had

evaluated the efficacy of warnings on its 1870 baler or examined closed-throat

baler feed intake entanglement injuries in the industry, the company would have

learned of the excessive dangers posed by the 1870 baler’s design and the

availability of ameliorative devices. In addition, plaintiff adduced testimony from

Gehl’s own current and former employees regarding the inadequacy of the

company’s product safety reviews, offering insight to jurors on why Gehl may not

have identified defects in proposed and/or current product designs.

3. Evidence of Previous Accidents

Gehl maintains the district court improperly admitted evidence of a prior

closed-throat baler entanglement injury for the purpose of showing the company

had notice of defects in the 1870 baler. Specifically, Gehl claims it was error to

admit evidence on the injuries suffered by the plaintiff in the Birchler case. We

review the district court’s evidentiary rulings for an abuse of discretion. Pandit v.

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American Honda Motor Co. , 82 F.3d 376, 379 (10 th
Cir. 1996). Under this

standard, “a trial court’s decision will not be disturbed unless the appellate court

has a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” Id.

(citation omitted).

Both federal and Kansas law permit the introduction of similar accidents in

product liability actions to prove “notice, the existence of a defect, or to refute

testimony given by a defense witness that a given product was designed without

safety hazards.” Ponder v. Warren Tool Corp. , 834 F.2d 1553, 1560 (10 th
Cir.

1987); see Powers v. Kansas Power & Light Co. , 671 P.2d 491, 499 (Kan. 1983)

(“Evidence of prior similar accidents is admissible to prove foreseeability.”). As

a prerequisite to admitting such evidence, the proponent must demonstrate “the

circumstances surrounding the other accidents were substantially similar to the

accident involved in the present case.” Wheeler v. John Deere Co. , 862 F.2d

1404, 1407 (10 th
Cir. 1988) (citations omitted). The requisite degree of

substantial similarity is tied to the proponent’s theory of proof:

If dangerousness is the issue, a high degree of similarity will be
essential. . . . If the accident is offered to prove notice, a lack of exact
similarity of conditions will not cause exclusion provided the accident
was of a kind which should have served to warn the defendant. . . .
Once a court has determined that accidents are substantially similar,
any differences in the circumstances surrounding those occurrences go
merely to the weight to be given the evidence.

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Ponder , 834 F.2d at 1560 (citations omitted) (first alteration in original).

The accident culminating in the Birchler lawsuit involved an individual

who became entangled in the feed intake area of a Gehl model 1500-A closed-

throat baler. According to Kennedy, the Birchler plaintiff went into the machine

following the same path as Kinser. Although Gehl emphasizes that the 1500-A

baler in Birchler is different than the 1870 baler at issue in the instant action, the

difference is largely immaterial inasmuch as there is abundant testimony that the

feed intake areas on the two models are virtually identical.

Noting that the accident in Birchler pre-dated Kinser’s purchase of his

1870 baler, Gehl also insists it could not have been put on notice of any defects in

its 1870 baler as a result of the Birchler accident. We have held before that a

substantially similar prior accident may be used to establish notice only if it

occurred sufficiently prior to the date of the subject incident that defendant could

have taken steps to remedy the situation. Julander v. Ford Motor Co. , 488 F.2d

839, 846 (10 th
Cir. 1973). It is undisputed here that Gehl did not receive notice of

the injuries in the Birchler accident, which occurred in August 1990, until August

1991. Kinser’s 1870 baler was manufactured in January 1991 and sold to him in

April 1991. Gehl is thus correct that the Birchler incident itself would not have

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put the company on notice of a defect in Kinser’s specific baler. 6

Any error the district court may have committed by admitting testimony on

the Birchler incident was harmless. Plaintiff offered evidence of another similar

accident—an entanglement injury in a closed-throat baler’s feed intake area—in

the Neill case that took place nearly a decade before Kinser’s injury. Birchler ,

therefore, did not represent Gehl’s first notice of potential deficiencies with the

feed intake area design of closed-throat balers. Gehl does not object to the

introduction of testimony on Neill . Moreover, the court invited Gehl to mitigate

the effect of this evidence by having Gehl executives testify that nothing about

the Birchler accident, including the verdict, compelled the company to alter the

design of its closed-throat balers. Gehl did not avail itself of this opportunity.

Accordingly, the company is in no position to complain about the error on appeal.

4. FIEI Documents

Gehl maintains the court erred in allowing plaintiff to elicit testimony on

and reference various documents purportedly issued by the FIEI. We discern no

abuse of discretion in the court’s rulings. None of these documents were admitted

into evidence. The materials simply were used by plaintiff’s expert witnesses as a

6
Plaintiff’s suggestion that Gehl’s August 1991 notice of the Birchler
incident should have triggered a post-sale duty to warn must be rejected. At no
time in the district court did plaintiff raise a duty to warn claim. We will not
entertain issues raised for the first time on appeal. Walker v. Mather (In re
Walker) , 959 F.2d 894, 896 (10 th
Cir. 1992).

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partial basis upon which to assess Gehl’s knowledge of closed-throat baler

hazards and exercise of due care (or lack thereof) in product design. Federal Rule

of Evidence 703 provides:

The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.

Gehl has been a member of the FIEI (now named the Equipment

Manufacturers’ Institute) since the time of its formation in the 1970s. Burrough,

who served as a member of the FIEI’s Big Round Baler Committee, testified that

the organization discussed closed-throat baler hazards and entanglement injuries

in its meetings. The minutes of these meetings and correspondence between

committee members are easily characterized as proper bases upon which an expert

witness may rely for opinions regarding a manufacturer’s knowledge of possible

hazards and/or design defects. See Nanda v. Ford Motor Co. , 509 F.2d 213, 222

(7 th Cir. 1974) (citations omitted) (“Facts or data found in the literature of the

profession, even though not themselves admissible in evidence, properly form a

part of the basis for an expert’s opinion.”).

Gehl attacks the reliability of these materials by underscoring the paucity of

evidence in the record authenticating the documents. Rule 703, however, permits

expert witnesses to base their opinions on evidence that is inadmissible under the

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hearsay, authentication, and best evidence rules. 29 Charles A. Wright and Victor

J. Gold, Federal Practice and Procedure § 6273, at 311 (1997). “The rationale for

this aspect of Rule 703 is that experts in the field can be presumed to know what

evidence is sufficiently trustworthy and probative to merit reliance.” Id.

Although the district court could have precluded the reference to these

documents, it did not abuse in discretion in refusing to do so.

5. Burrough Deposition Excerpts

Gehl’s final argument is that the deposition excerpts of Burrough read to

the jury constitute inadmissible hearsay. Plaintiff read excerpts of Burrough’s

depositions from three previous product liability lawsuits involving big round

baler injuries: Birchler (1993 deposition), Neill (1991 deposition), and Dunnahoe

(1985 deposition). Gehl grounds its challenge to this testimony on Fed. R. Evid.

801(d)(2). This rule provides, in relevant part, that a statement is not hearsay if—

[t]he statement is offered against a party and is (A) the party’s own
statement, in either an individual or a representative capacity or (B) a
statement of which the party has manifested an adoption or belief in
its truth, or (C) a statement by a person authorized by that party to
make a statement concerning the subject, or (D) a statement by the
party’s agent or servant concerning a matter within the scope of
agency or employment made during the existence of the relationship.
. . . The contents of the statement shall be considered but are not alone
sufficient to establish the declarant’s authority under subdivision (C)
[or] the agency or employment relationship and scope thereof under
subdivision (D).

Although Burrough had retired at the time of these depositions, he

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continued to perform consulting services for Gehl on projects he had overseen

during his full-time tenure with the company. Moreover, prior to being deposed

in this case, current project engineer Viesselmann met with Burrough to review

the former structure of Gehl’s engineering department and the evolution of Gehl’s

closed-throat balers’ designs. The preceding facts, both of which were

established through Viesselmann’s testimony, constitute independent and

sufficient corroboration of Burrough’s authority to make statements on behalf of

Gehl and/or the scope of Burrough’s employment. Because the topics discussed

in Burrough’s deposition excerpts all concerned events and policies occurring

during his employment, the district court did not err in admitting this testimony

pursuant to Rule 801(d)(2).

IV.

The judgment of the district court is AFFIRMED.

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