McPhail v. Deere & Co.

FILED
United States Court of Appeals
Tenth Circuit

June 25, 2008
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARBARA JEAN McPHAIL,
Personal Representative of the Estate
of WILLIS RAY McPHAIL,

Plaintiff-Appellant,
v. No. 07-6142
DEERE & COMPANY, a Delaware
Corporation,

Defendant-Appellee,

and JOHN DOES 1-3,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 06-CIV-593-R)

Joseph T. Acquaviva, Jr. (Chad M. Kirk with him on the brief), Wilson, Cain &
Acquaviva, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Jo Anne Deaton (Lindsay J. McDowell with her on the brief), Rhodes,
Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, Oklahoma, for Defendant-
Appellee.

Before TACHA, EBEL and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.

In June of 2004, Willis Ray McPhail, a Kiowa County, Oklahoma farmer,

was killed when he started his tractor by bypassing its malfunctioning circuitry.

When it started, the tractor suddenly lurched backward and ran him over,

inflicting fatal injuries. His widow, Barbara Jean McPhail, brought suit in state

court on her own behalf and on behalf of his estate against Deere & Co.

(“Deere”), the manufacturer of the tractor. After the case was removed to federal

court, the district court granted summary judgment in favor of Deere. Although it

concluded that there was sufficient evidence to go to a jury regarding whether the

tractor was unreasonably dangerous, as that term is used in Oklahoma, it found

that a sticker affixed to the tractor provided sufficient warning to cure the defects

in the tractor’s design. We disagree, and reverse the grant of summary judgment.

Mrs. McPhail also appeals the district court’s denial of her motion to remand the

case to state court. She argues that Deere has failed to establish the amount in

controversy and that the parties are no longer diverse because of the identification

of “John Doe” defendants. We examine whether diversity jurisdiction exists, and

conclude that it does.

I. BACKGROUND

Willis McPhail purchased a used 1981 Deere 4440 tractor at an auction

approximately eight years ago. On the morning of his death, in June 2004, the

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tractor would not start, due to a malfunction in its starting circuitry. Because of

the urgency of getting the hay crop in, Mr. McPhail decided to bypass start the

tractor as a stopgap measure; the alternative was to lose the crop. Mr. McPhail

was not the first farmer to do this. Plaintiff submitted evidence that significant

numbers of farmers have resorted to bypass starting when the starting circuitry on

their tractors failed. See generally McMurray v. Deere & Co., 858 F.2d 1436

(10th Cir. 1988). When a tractor’s starting circuitry becomes inoperative, the

tractor can still be started if the user creates a new electrical circuit that bypasses

any failures in the normal circuitry. To effectuate a bypass start, the user stands

on the ground near the engine and lays a screwdriver across the electrical

terminals on the starter and the solenoid to close the circuit necessary for engine

ignition. Mr. McPhail did this twice that morning. On his first attempt, the

tractor started successfully, in neutral, but the front-end loader would not work.

Mr. McPhail turned off the tractor and attempted to fix the front-end loader.

Then, standing between the front and rear wheels on one side of the tractor, he

attempted a second bypass start. This time, according to his employee Darrel

Coffelt, the transmission engaged and the tractor suddenly lurched backward at

high speed, running over Mr. McPhail. He died from the injuries later that day.

Mr. McPhail’s tractor was designed with a neutral-start switch, which

prevents engine ignition if the transmission is in gear. But because this switch is

part of the tractor’s normal starting circuitry, bypass starting the tractor also

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bypasses this safety mechanism. Thus, nothing in the design of the tractor

protects users from the unexpected movement of the tractor if it is bypass started

while in gear. In the 1970s and 1980s, Deere became aware that farmers were

bypass starting their tractors, that tractors started in gear were also prone to

sudden movement, and that this was leading to accidents. In response, for models

manufactured after 1984, Deere began using an “Engagement Override Valve,”

which prevents the transmission from engaging, even if the tractor is in gear,

unless the tractor’s operator cycles the clutch or manually returns the tractor to

neutral. For older models, Deere undertook a safety campaign, starting in 1989,

to warn users of the dangers of bypass starting.

Deere first identified all of the pre-1984 models whose transmission could

engage when the tractor is bypass started. For these tractors, Deere attempted to

contact all known owners to educate them on the dangers of bypass starting and to

install a safety kit on their tractors. The safety kits included a plastic cover for

the tractor’s solenoid to prevent the operator from accessing the terminals used in

bypass starting, and a warning sticker to affix near the solenoid cover. The

sticker is a vibrant red and contains the following words: “DANGER” and “Start

only from seat in park or neutral. Starting in gear kills.” The warning also

contains two cautionary depictions. One illustration, contained within a

prohibitory red circle with a slash through it, shows a screwdriver being placed

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over a solenoid terminal. The second image depicts a person standing on the

ground near the tractor and being run over because the tractor is moving forward.

It is undisputed that this warning was present on Mr. McPhail’s tractor on

the morning of the accident. However, there is no evidence that a Deere

representative contacted Mr. McPhail, rather than a previous owner, as part of the

education component of the campaign. There were remnants of the solenoid

cover in place, suggesting it had been installed at some point. But it had been

broken off prior to the accident and nothing in the record indicates whether the

cover was present when Mr. McPhail bought the tractor at auction.

Two other features of the Deere 4440 are important. First, it employs a

Quad-Range Transmission (QRT), which functions via a hydraulic (or “wet”)

clutch. When a tractor with a QRT is started, hydraulic pressure must build up

within the clutch before the tractor will move, whether or not the tractor is in

gear. Because of this, the tractor’s engine will act as if it is in neutral for a short

interval after it is started, even if it is in gear. Once the hydraulic pressure is

adequate to engage the transmission, the tractor will suddenly move under full

power. This is in contrast to the behavior of a manual (or “dry”) clutch. If a

tractor with a “dry” clutch is started while the tractor is in gear, the transmission

is engaged during engine ignition. The tractor will begin to move immediately

but, because the engine has not fully started, the movement is less powerful.

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 A second significant feature, as explained by one of Mr. McPhail’s expert

witnesses, is that “[t]he ‘Quad-Range’ transmission controls provide ‘false’ or

‘apparent’ neutral positions which can cause the operator to believe the tractor is

in neutral, when it is not. The control system does not provide a positive visual

or tactile indication of a true neutral position.” Aplt. App., Vol. III, at 175. In

other words, the gear shift on this model of tractor may appear to be in neutral

when in fact the tractor is in gear.

II. DIVERSITY JURISDICTION

Mrs. McPhail originally filed this suit in Oklahoma state court. Invoking

diversity jurisdiction, Deere removed the case to federal court. Mrs. McPhail

challenged removal through a motion to remand. On appeal, she continues to

assert that federal subject matter jurisdiction is lacking because the jurisdictional

requirements of 28 U.S.C. § 1332(a) have not been met, for two independent

reasons. First, she contends that the citizenship of unidentified (“John Doe”)

defendants has destroyed diversity. Second, she contends that Deere never

carried its burden to prove the requisite amount in controversy. Our review of a

denial to remand is de novo. See Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d

1072, 1076 (10th Cir. 1999).

A. Diversity of “John Doe” Defendants

Mrs. McPhail first argues that the citizenship of unidentified defendants is

a bar to removal. In her original complaint, Mrs. McPhail named three “John

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Doe” defendants who have since been identified as in-state distributors. Under 28

U.S.C. § 1332(a) the citizenship of all defendants must be different from the

citizenship of all plaintiffs. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806);

Salt Lake Tribune Publ’g Co. v. AT&T Corp., 320 F.3d 1081, 1095–96 (10th Cir.

2003). Mrs. McPhail urges, therefore, that the identification of these defendants

has destroyed diversity and that the case must be remanded. She also asserts that

she has been unable to amend her complaint to substitute these named defendants

because necessary information is contained within records controlled by Deere.

Under the federal removal statutes the presence of “John Doe” defendants

at the commencement of an action creates no impediment to removal. See 28

U.S.C. § 1441(a) (“[T]he citizenship of defendants sued under fictitious names

shall be disregarded.”); Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1234–35

(10th Cir. 2006). Thus, the diversity of citizenship between Deere and McPhail

was sufficient to support the statutory diversity requirement at the time of

removal. The question, then, is whether subsequent identification of potential

defendants destroys complete diversity and requires remand to state court.

To be sure, if a non-diverse party is added to the complaint at any time

prior to final judgment, the case must be remanded to state court. 28 U.S.C. §

1447(c) provides that “[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be remanded.”

Further, § 1447(e) states: “[i]f after removal the plaintiff seeks to join additional

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defendants whose joinder would destroy subject matter jurisdiction, the court may

deny joinder, or permit joinder and remand the action to the State Court.”

Although §1447(e) speaks of joinder, it has been held to apply when the

complaint is amended to replace “John Doe” defendants with defendants

identified by name. See Casas Office Mach., Inc. v. Mita Copystar Am., Inc., 42

F.3d 668, 673–75 (1st Cir. 1994) (noting legislative history indicating

Congressional intent that this section apply to identification of “John Doe”

defendants).

As § 1447(e) indicates, however, the plaintiff does not have an absolute

right to join such parties. Federal Rule of Civil Procedure 15(a)(2) allows

amendments only with leave of the opposing party or the court. 1 Further, under

Rule 19 the district court must determine whether the party sought to be joined is

indispensable. If so, Rule 19 requires the court either to join the party, in which

case remand is necessary under § 1447(e), or to deny joinder, in which case Rule

19(b) also requires that the action be dismissed. 2 If the defendant is not

indispensable, Rule 20(a)(2) permits joinder at the discretion of the district court.

1
Federal Rule of Civil Procedure 15(a)(1) allows for some amendments to a
complaint to be made as a matter of course prior to the filing of a responsive
pleading. That provision is inapplicable because Deere’s responsive pleading has
already been filed.
2
Federal Rule of Civil Procedure 19(b) also allows for the case to go
forward if the district court determines “in equity and good conscience” that it
should proceed without the indispensable party. Rule 19(b) sets forth factors for
making this determination. In such a situation, the non-diverse party, having been
left out of the litigation, is no longer an impediment to diversity jurisdiction.
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See State Distrib., Inc. v. Glenmore Distill. Co., 738 F.2d 405, 416–17 (10th Cir.

1984). In exercising this discretion, the district court “typically considers several

factors [including] whether the amendment will result in undue prejudice, whether

the request was unduly and inexplicably delayed, [and whether it] was offered in

good faith . . . .” Id. at 416. If the district court determines that joinder is

appropriate, § 1447(e) requires remand to state court. If the district court decides

otherwise, it “may deny joinder.” 28 U.S.C. § 1447(e).

We have no occasion here to apply these principles to the district court’s

decision, because Mrs. McPhail never attempted to amend her complaint. She

informs us in her brief that she did not learn the identities of these potential

defendants until shortly before the district court granted summary judgment, and

states that her ability to add these individuals to her complaint was dependent on

information controlled by Deere. Accordingly, as matters now stand, the

complaint names parties who are wholly diverse, and there is no basis for

remanding to state court. If Mrs. McPhail attempts to amend her complaint on

remand, the district court will determine whether to grant leave to amend, whether

any additional named parties are indispensable, and, if not, whether permissive

joinder is appropriate. For now, Deere is the only named defendant. Having

never been presented with a motion to amend the complaint to substitute non-

diverse defendants in place of the unidentified defendants, the district court did

not err in determining that it has diversity jurisdiction.

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 B. Amount in Controversy

Subject matter jurisdiction under 28 U.S.C. §1332(a) requires, in addition

to diversity of citizenship, an amount in controversy in excess of “$75,000,

exclusive of interest and costs.” Mrs. McPhail asserts that Deere never

established this amount in controversy and that the district court therefore erred

by denying her motion to remand.

Determinations of sufficiency of the amount in controversy are governed by

an odd set of rules. The evident purpose of diversity jurisdiction is to protect out-

of-state defendants from possible home-town prejudice of jurors from the

plaintiff’s state. As James Madison explained in the Virginia ratifying

convention:

It may happen that a strong prejudice may arise, in some states, against the
citizens of others, who may have claims against them. We know what
tardy, and even defective, administration of justice, has happened in some
states. A citizen of another state might not chance to get justice in a state
court, and at all events he might think himself injured.

3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption

of the Federal Constitution 533 (2d ed. 1836); see also Bank of the United States

v. Deveaux, 5 Cranch (9 U.S.) 61, 87–88 (1809) (Marshall, C.J.).

With this purpose in mind, one might expect the rules for determining

sufficiency to be at least as favorable to the out-of-state as the in-state party.

Alternatively, bearing in mind that federal jurisdiction is exceptional and that

parties seeking to invoke federal jurisdiction must demonstrate that their case

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falls within its reach, see, e.g., United States v. Hays, 515 U.S. 737, 743 (1995),

one might expect the burden of proof to fall on the proponent of federal

jurisdiction. Neither expectation proves entirely true. If an in-state plaintiff

suing an out-of-state defendant wishes to be in federal court, all the plaintiff

needs to do is allege an amount in excess of $75,000 and he will get his way,

unless the defendant is able to prove “to a legal certainty” that the plaintiff’s

claim cannot recover the alleged amount. See St. Paul Mercury Indem. Co. v. Red

Cab Co., 303 U.S. 283, 289 (1938); Woodmen of World Life Ins. Soc’y v.

Manganaro, 342 F.3d 1213, 1216–17 (10th Cir. 2003). On the other hand, if the

in-state plaintiff wishes to remain in state court, all it needs to do is to refrain

from alleging any particular sum in its prayer for relief (assuming that is

permitted, as it often is, under state rules of civil procedure), and, according to

this and most other courts, the defendant is required to prove jurisdictional facts

by a “preponderance of the evidence” such that the amount in controversy may

exceed $75,000. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th

Cir. 2001) (citing cases). Thus, when the proponent of federal jurisdiction is the

party that does not need it, mere allegations suffice; but when the proponent of

federal jurisdiction is the party in whose interest diversity jurisdiction was

created, actual proof of jurisdictional facts is required, at a stage in the litigation

when little actual evidence is yet available. This set of rules bears no evident

logical relation either to the purpose of diversity jurisdiction, or to the principle

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that those who seek to invoke federal jurisdiction must establish its prerequisites.

See generally Alice M. Noble-Allgire, Removal of Diversity Actions When the

Amount in Controversy Cannot be Determined from the Face of Plaintiff’s

Complaint: The Need for Judicial and Statutory Reform to Preserve Defendant’s

Equal Access to Federal Courts, 62 Mo. L. Rev. 681 (1997).

The requirement that a defendant must prove facts in support of the amount

in controversy by a “preponderance of the evidence,” which derives from McNutt

v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936), 3 raises a further

puzzle: in most removal cases, there is little “evidence” one way or another. In

most cases, the defendant must file a notice of removal within thirty days after

receiving the complaint. See 28 U.S.C. § 1446(b). Pre-removal discovery in state

court is unlikely to have produced helpful information by then. “Even if a

defendant immediately were to serve interrogatories or requests to admit upon the

plaintiff, many states give the opposing party thirty days or more in which to

answer interrogatories. The defendant, therefore, either must hope that the

plaintiff will respond well before the ordinary deadline or, in the alternative, must

seek a court order to shorten the time period.” Noble-Allgire, 62 Mo. L. Rev. at

731 (footnote omitted). And if the plaintiff moves quickly to challenge removal

3
McNutt’s requirement that jurisdictional facts be proven by a
preponderance of the evidence applies in theory to plaintiffs too, 298 U.S. at 182,
189, although in removal cases the rule has much more effect in practice on
defendants, who cannot put an amount in controversy simply by including it in
the complaint.
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in federal court, there may not be time to produce more evidence in federal

discovery before the court decides to rule. See Fed. R. Civ. P. 16(b)(2) (the

district court’s scheduling order, which sets forth the timing for disclosures, may

be issued as late as ninety days after the defendant makes an appearance); Fed R.

Civ. P. 26(f)(1) (the parties must meet to plan for discovery, at the latest, twenty-

one days before the district court’s order under Rule 16(b)(2) is due). If the judge

holds a hearing under Rule 12(b)(1), the defense can present evidence, but may

have little to work with.

Misunderstood, this system is liable to serious abuse. However, in a recent

decision the Seventh Circuit has clarified this jurisprudential mess, explaining the

proper role of the “preponderance of the evidence” standard, and how defendants

may have a chance at satisfying it. Meridian Security Ins. Co. v. Sadowski, 441

F.3d 536, 540–43 (7th Cir. 2006) (Easterbrook, J.). The “preponderance of the

evidence” standard applies to jurisdictional facts, not jurisdiction itself. As the

court put it, “[w]hat the proponent of jurisdiction must ‘prove’ is contested

factual assertions . . . [j]urisdiction itself is a legal conclusion, a consequence of

facts rather than a provable ‘fact’.” Id. at 540–541. Applying this rule to the

same situation we confront here—a removing defendant claiming diversity

jurisdiction in the face of a silent complaint—the court offered the following

solution:

the removing defendant, as proponent of federal jurisdiction, must establish
what the plaintiff stands to recover. We have suggested several ways in
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 which this may be done—by contentions, interrogatories or admissions in
state court; by calculation from the complaint’s allegations[;] by reference
to the plaintiff’s informal estimates or settlement demands[;] or by
introducing evidence, in the form of affidavits from the defendant’s
employees or experts, about how much it would cost to satisfy the
plaintiff's demands. The list is not exclusive; any given proponent of
federal jurisdiction may find a better way to establish what the controversy
between the parties amounts to, and this demonstration may be made from
either side’s viewpoint (what a judgment would be worth to the plaintiff, or
what compliance with an injunction would cost the defendant). Once the
estimate has been made—and contested factual allegations that support the
estimate have been established in a hearing under Rule 12(b)(1) by
admissible evidence . . . —then the St. Paul Mercury standard comes to the
fore, and the case stays in federal court unless it is legally certain that the
controversy is worth less than the jurisdictional minimum.

Id. at 541–42 (citations omitted). We also note that to the extent that a defendant

must rely on the federal discovery process to produce this evidence (perhaps

because there was no time to do so in state court) he may ask the court to wait to

rule on the remand motion until limited discovery has been completed, see, e.g.,

McCraw v. Lyons, 863 F. Supp. 430, 435 (W.D. Ky. 1994) (“If Plaintiff seeks

remand, Defendant may request that the Court delay a decision pending

completion of limited discovery.”), although we do not decide under what

circumstances a district court would abuse its discretion by refusing such a

request.

Meridian eliminates the double standard that would come from

misunderstanding what “preponderance of the evidence” requires. The proponent

of federal jurisdiction must prove contested facts; and because a defendant has no

control over the complaint, he cannot put a large sum of money in controversy

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simply by demanding it, as a plaintiff often can. But once those underlying facts

are proven, a defendant (like a plaintiff) is entitled to stay in federal court unless

it is “legally certain” that less than $75,000 is at stake. If the amount is uncertain

then there is potential controversy, which is to say that at least $75,000 is in

controversy in the case.

Although this Court’s opinions have not been entirely clear on this issue,

the approach we adopt today is consistent with their holdings and analysis. In

Laughlin v. K-Mart Corp., 50 F.3d 871, 873 (10th Cir. 1995), we held that where

a state court complaint does not identify a specific amount that the plaintiff seeks

to recover, the burden is on a defendant seeking removal to demonstrate that this

jurisdictional prerequisite is satisfied by “affirmatively establish[ing]” in the

petition that the amount in controversy exceeds the statutory requirement. The

plaintiff in Laughlin alleged wrongful constructive discharge and sought damages

in excess of $10,000. Id. at 872. The defendant attached the petition to its notice

of removal, but failed to suggest any potential value of the claims in the petition.

Id. at 873. Thus, we were presented with a petition and a notice of removal that

both only referred to damages in excess of $10,000. Id. We found this

insufficient to satisfy the amount in controversy requirement. Id. at 874.

In Martin v. Franklin Capital Corp., 251 F.3d 1284 (10th Cir. 2001), the

defendant’s notice of removal totaled up all of the dollar figures contained in the

plaintiff’s complaint, but some of these dollar amounts were essentially

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background information that were not linked to the plaintiff’s attempts to recover

damages. Because defendant’s notice of removal depended on an erroneous

“construction of the [plaintiff’s] pleading,” we found jurisdiction lacking. Id. at

1291. In the course of doing so, we stated that the defendant must “establish the

jurisdictional amount by a preponderance of the evidence,” 251 F.3d at 1290. It

would have been more precise to say that the defendant must affirmatively

establish jurisdiction by proving jurisdictional facts that made it possible that

$75,000 was in play, which the defendants in Martin failed to do. It is only the

jurisdictional facts that must be proven by a preponderance—not the legal

conclusion that the statutory threshold amount is in controversy. As explained in

Meridian:

To recap: a proponent of federal jurisdiction must, if material factual
allegations are contested, prove those jurisdictional facts by a
preponderance of the evidence. Once the facts have been established,
uncertainty about whether the plaintiff can prove its substantive claim, and
whether damages (if the plaintiff prevails on the merits) will exceed the
threshold, does not justify dismissal. Only if it is “legally certain” that the
recovery (from plaintiff's perspective) or cost of complying with the
judgment (from defendant’s) will be less than the jurisdictional floor may
the case be dismissed.

441 F.3d at 543.

In light of this clarification of the rule, we now consider whether Deere has

proven the facts necessary to supports its assertion that this case may involve

more than $75,000. Mrs. McPhail contends that because her complaint does not

specify the total amount of damages sought, Deere did not carry its burden.

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However, a plaintiff cannot avoid removal merely by declining to allege the

jurisdictional amount. This would allow frustration of the purpose of diversity

jurisdiction, which is, after all, to protect the out-of-state defendant. Still, in the

absence of an explicit demand for more than $75,000, the defendants must show

how much is in controversy through other means.

First, the defendant may rely on an estimate of the potential damages from

the allegations in the complaint. See Meridian, 441 F.3d at 541. A complaint

that presents a combination of facts and theories of recovery that may support a

claim in excess of $75,000 can support removal. For example, the Fifth Circuit

has upheld removal based on a complaint seeking recovery in tort for “alleged

damages for property, travel expenses, an emergency ambulance trip, a six day

stay in the hospital, pain and suffering, humiliation, and her temporary inability

to do housework after the hospitalization.” Luckett v. Delta Airlines, Inc., 171

F.3d 295, 298 (5th Cir. 1999). The court made this determination by “[r]eading

the face of the complaint,” even though it did “not specify the numerical value of

the damage claim.” Id.

Second, beyond the complaint itself, other documentation can provide the

basis for determining the amount in controversy—either interrogatories obtained

in state court before removal was filed, or affidavits or other evidence submitted

in federal court afterward. Meridian, 441 F.3d at 541–42; Manguno v. Prudential

Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (allowing “summary-

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judgment-type evidence,” such as affidavits, to support jurisdiction). This

roughly parallels a plaintiff’s right, under Fed. R. Civ. P. 10(c), to make “[a]

copy of a written instrument that is an exhibit to a pleading . . . a part of the

pleading for all purposes.” In some situations, this sort of evidence alone will

allow a defendant to support its claims regarding the amount in controversy. For

example, where a defendant has allegedly breached a contract and the plaintiff

seeks damages in an indeterminate amount, a defendant might support jurisdiction

by attaching a copy of the contract, valued at more than $75,000, to the notice of

removal. Or it might “introduc[e] evidence, in the form of affidavits from the

defendant’s employees or experts, about how much it would cost to satisfy the

plaintiff’s demands.” Meridian, 441 F.3d at 541–42 (citing Rubel v. Pfizer Inc.,

361 F.3d 1016 (7th Cir. 2004)).

Furthermore, a plaintiff’s proposed settlement amount “is relevant evidence

of the amount in controversy if it appears to reflect a reasonable estimate of the

plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002).

Acknowledging that the use of a settlement offer would not be permissible at trial

as evidence to establish “‘liability for or invalidity of the claim or its amount,’”

the Ninth Circuit has held that it is permissible for a district court to consider

settlement offers when deciding the jurisdictional question. Id. at n.3 (quoting

Fed. R. Evid. 408). We agree. The amount in controversy is not proof of the

amount the plaintiff will recover. Rather, it is an estimate of the amount that will

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be put at issue in the course of the litigation. To this end, documents that

demonstrate plaintiff’s own estimation of its claim are a proper means of

supporting the allegations in the notice of removal, even though they cannot be

used to support the ultimate amount of liability.

In light of these principles, we think Deere has met its burden. As required

under Oklahoma pleading rules, Mrs. McPhail did not plead any specific amount

in damages. See Okla. Stat. tit. 12, § 2008(A)(2). Rather, she sought relief “in an

amount in excess of Ten Thousand Dollars.” Aplt. App., Vol. I, at 18. She also

sought “actual damages, punitive damages as determined by the trier of fact, plus

pre and post judgment interest, costs, attorney fees and such other and further

relief which the Court deems appropriate,” again without citing any specific sum.

Id.

In its notice of removal, Deere cited the allegations in the complaint and

represented that the amount in controversy in the case exceeded $75,000. Deere

also incorporated several emails and letters that shows that counsel for Deere had

a conversation with one of Mrs. McPhail’s attorneys that included a discussion of

the value of the claim. Aplt. App., Vol. II, at 28. Deere’s counsel interpreted

comments made during this discussion as meaning that Mrs. McPhail was

stipulating that she would be seeking more than $75,000 in damages. Id. Mrs.

McPhail’s attorneys consistently denied this concession, stating that any figures

discussed between counsel were spoken informally “in general settlement

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discussions” and did not necessarily reflect the actual amount in controversy. Id.

at 29. Counsel for Mrs. McPhail also wrote a separate letter refusing to concede

an amount in controversy in excess of $75,000, inviting Deere’s attorneys to

undertake their own “economic analysis” to ascertain the amount in controversy.

Id. at 31. While Mrs. McPhail’s counsel stated in this correspondence that it

“may very well be” true that the amount in controversy would exceed $75,000, he

refused to stipulate to any amount other than the $10,000 required by Oklahoma

law. Id.

This information, which was presented to the district court with the notice

of removal, is sufficient to support diversity jurisdiction. The complaint itself

sets forth all of the underlying facts: Mrs. McPhail alleged that Deere’s defective

design led to Mr. McPhail’s “severe bodily injuries” which in turn led to

“permanent and progressive injury” and his “wrongful death.” Aplt. App., Vol. I,

at 16. In addition, she also cited the Oklahoma wrongful death statute, and

requested “all relief enumerated therein.” Id. at 17. That statute allows recovery

for medical and burial expenses, the loss of consortium and the grief of the

surviving spouse, the mental pain and anguish suffered by the decedent, pecuniary

loss based on earning capacity, and grief and loss of companionship; it also

permits an award of punitive damages. See Okla. Stat. tit. 12, § 1053. For

actions found by a jury to exhibit “reckless disregard,” the jury has the discretion

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to award any amount up to $100,000 or the amount awarded in actual damages,

whichever is greater. See Okla. Stat. tit. 23, § 9.1(B)(1).

Given these allegations and the nature of the damages sought, the complaint

on its face may be sufficient by itself to support removal. We need not decide the

question based on the complaint alone, however, because the correspondence

between counsel that was incorporated in the notice of removal demonstrates that

Mrs. McPhail’s attorneys also believed the amount in controversy “very well may

be” in excess of $75,000. Although Mrs. McPhail’s counsel attempted to

downplay this as a general figure discussed in “the context of settlement,” we

agree with the Ninth Circuit that this is relevant evidence of the value of the

claim. Even assuming the amount in controversy was not apparent from the face

of the complaint, this background information provides enough supplementary

information for the district court to conclude that it is not legally certain that Mrs.

McPhail will recover an amount less than $75,000. The district court was

therefore correct in concluding that Deere proved the facts necessary to establish

that more than $75,000 was in controversy.

III. THE ADEQUACY OF THE WARNING

We turn now to the merits. Because jurisdiction is based on diversity, we

apply the law of the forum state, in this case the Oklahoma law of products

liability. A plaintiff may recover under a theory of strict products liability in

Oklahoma if she can prove that: “1) the product was the cause of the injury; 2) a

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defect existed in the product at the time it left the manufacturer’s possession and

control; and 3) the defect made the product unreasonably dangerous to the

plaintiff or his property.” McMurray v. Deere & Co., Inc., 858 F.2d 1436, 1439

(10th Cir. 1988) (applying Oklahoma law). Under Oklahoma law, the test for

whether a product is unreasonably dangerous is whether the product is

“‘dangerous to an extent beyond that which would be contemplated by the

ordinary consumer who purchases it, with the ordinary knowledge common to the

community as to its characteristics.’” Id. (quoting Kirkland v. Gen. Motors

Corp., 521 P.2d 1353, 1362–63 (Okla. 1974) (further internal quotation marks

omitted).

However, even where a product’s design defect makes the product

unreasonably dangerous, Oklahoma law does not impose liability if the product

contains a warning that adequately addresses the known risks of use. See Smith v.

U.S. Gypsum Co., 612 P.2d 251, 253–54 (Okla. 1980). The Oklahoma Supreme

Court has enunciated the relevant standard:

If a product is potentially dangerous to consumers, a manufacturer is
required to give directions or warnings . . . as to its use. If these
warnings cover all foreseeable use and if the product is not
unreasonably dangerous if the warnings and directions are followed,
the product is not defective in this respect. If the warnings are
unclear or inadequate to apprise the consumer of the inherent or
latent danger, the product may be defective; particularly where a
manufacturer has reason to anticipate danger may result from the use
of his product and the product fails to contain adequate warning of
such danger, the product is sold in a defective condition.

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Id. Further, Oklahoma law does not require a manufacturer “to foresee that

[professionals who use its product will] fail to read its warnings, and then use [the

product] in a manner that manufacturer’s instructions expressly warned against.”

Hutchins v. Silicone Specialties, Inc., 881 P.2d 64, 67 (Okla. 1993). Finally,

“there is no duty to warn a knowledgeable user of the product of the dangers

associated therewith.” Duane v. Oklahoma Gas & Elec. Co., 833 P.2d 284, 286

(Okla. 1992).

The district court concluded that, had there been no warning on the tractor,

a triable issue would exist regarding whether the tractor was unreasonably

dangerous. Citing common failures in the starting circuitry, the need that this

created for farmers to bypass start their tractors, the fact that the tractor was

designed in such a way that bypass starting was easy to accomplish, and the

potential for unexpected movement associated with bypass starting, the district

court found that there was sufficient evidence in the record for reasonable jurors

to find that the tractor was unreasonably dangerous. Deere does not challenge

this conclusion.

We confronted a similar question in McMurray v. Deere & Co., 858 F.2d

1436 (10th Cir. 1988). In McMurray, the plaintiff’s decedent had died when he

attempted to bypass start his tractor while it was in gear. Id. at 1437–38. In that

case, the district court had issued a jury instruction that required the jury to find

in favor of the defendant if it found that bypass starting the tractor was an

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abnormal use of the product. Id. at 1438–39. Oklahoma law only allows such a

defense “where the method of using a product is not that which the manufacturer

intended or is a use that could not reasonably be anticipated by a

manufacturer.” Id. at 1442 (quoting Fields v. Volkswagen of Am., Inc., 555 P.2d

48, 56 (Okla. 1976)). We found that “Deere intended . . . that the tractor would

be used for agricultural purposes” and that Mr. McMurray, when he bypass

started it, was “attempting to use [his tractor] for a proper purpose.” Id. at

1442–43. Accordingly, we held that Mr. McMurray did not use his “in an

abnormal manner or in an unforeseeable way.” Id. at 1443. Since McMurray,

Deere implemented its bypass start campaign, which resulted in the warning being

placed on Mr. McPhail’s tractor.

Because this sticker was present, Oklahoma law also requires Mrs. McPhail

to prove that the warning is “unclear or inadequate to apprise the consumer of the

inherent or latent danger.” Smith, 612 P.2d at 254. The district court held that

Deere’s warning was adequate or, in the alternative, that Mr. McPhail’s awareness

of the dangers of bypass starting rendered the warning unnecessary. Mrs.

McPhail appeals the district court’s grant of summary judgment regarding the

adequacy of the warning. 4 We agree with Mrs. McPhail that there are genuine

4
Mrs. McPhail also appeals several other issues, generally related to the
district court’s treatment of information in the record and its interpretation of
precedent, and argues that the district court relied on an incomplete record
because documents that the district court ordered Deere to produce were never
made available to plaintiff. In light of our disposition, we need not reach these
(continued...)
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issues of material fact that should have precluded the grant of summary judgment

on this issue.

The sticker on Mr. McPhail’s tractor contains two sentences. First, it tells

the operator of the tractor to “[s]tart only from seat in park or neutral.” Aplt.

App., Vol. II, at 163. Second, it warns that “[s]tarting in gear kills.” Id. The

warning also contains the word “DANGER” and an illustration of a person

standing on the ground being run over by the tractor as it moves forward. Id. We

find that these cautionary phrases, taken in the light most favorable to the party

opposing summary judgment, give rise to an issue of fact regarding the clarity and

adequacy of this warning. Specifically, the sticker does not warn a user that the

tractor’s transmission can engage even though the tractor appears to be in neutral.

Instead, the warning expressly connects the danger of death to “starting in gear.”

Although the first sentence instructs the operator to “[s]tart only from seat,” it

also highlights the need to start in “park or neutral.” This implies that the

dangers of bypass starting might be averted by making sure that the tractor is in

park or neutral, not in gear, when it is started. Yet, Mrs. McPhail’s evidence

makes it apparent that this is not the case.

Deere argues that if farmers simply complied with the first four words of

the warning—“start only from seat”—they would not be able to bypass start and

4
(...continued)
other issues.
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would not be at risk. True. But they might also not be able to use the tractor.

The record shows that Deere is aware that normal use of the tractor sometimes

makes it necessary to bypass start the tractor, which cannot be accomplished from

the seat. Mr. Kirk Ney, a Division Engineer for Deere, acknowledged the need

that farmers have to bring in their crops during harvest time, because it is tied to

their livelihoods. Aplt. App., Vol. III, at 64. He testified that some failures in

the starting system are “easily fixable” and may be fixed by the tractor’s operator,

instead of a technician, “depending on . . . what’s wrong.” Id. at 63. He went on

to state that “of course” it would be necessary to diagnose the problem. Id.

Finally, he acknowledged that Deere’s service technicians are trained to diagnose

starting circuitry problems by bypass starting tractors, and that even Deere service

technicians had been injured while bypass starting tractors they were diagnosing.

Id. at 78–81. This testimony, taken in the light most favorable to Mrs. McPhail,

could lead a reasonable juror to conclude that Deere has anticipated that farmers

will need to bypass start their tractors, and the warning fails to account for this

need.

The district court decision does not take into account this key shortcoming

in the warning: the inference that the danger arises from starting the tractor when

it is not in neutral or park. Mrs. McPhail provided evidence that the behavior of

the Quad-Range Transmission masks whether the tractor is in gear. The affidavit

from Mrs. McPhail’s expert witness states that the gear selector for this model

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tractor could appear to be in neutral when the tractor was actually in gear. These

characteristics of the tractor give rise to the inference that even an operator who

takes care to ensure that the tractor is in neutral cannot be sure that unexpected

movement will not occur. Mr. Coffelt testified that, after the accident, the tractor

was traveling in reverse at “a pretty good rate of speed” and that he “couldn’t

believe it, it was going backwards instead of forwards.” Aplt. App., Vol II., at

102. These facts support an inference that the tractor was in a gear that Mr.

McPhail had not deliberately selected.

The sticker affixed to Mr. McPhail’s tractor warned: “Danger. Start only

from seat in park or neutral. Starting in gear kills.” This informs a tractor’s

operator of the potentially lethal consequences of bypass starting a tractor in gear.

However, reading the warning in the light most favorable to the plaintiff, it may

also suggest that starting the tractor in neutral or park eliminates that danger.

While the warning contains cautionary depictions regarding bypass starting

generally and tractor motion caused by bypass starting, the warning does not

caution against the possibility that even a tractor that appears to be in neutral or

park may move under engine power. Indeed, by stating that “starting in gear

kills,” it tends to suggest that if the user is sufficiently careful in ensuring that the

tractor is in park or neutral, all will be well. Absent some warning about “false”

or “apparent” neutral settings on this transmission, we are unable to find, as a

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matter of law, that this warning overcomes the dangerous conditions of the

tractor.

The district court found, alternatively, that Mr. McPhail’s own knowledge

of the dangerous condition of the tractor would make it impossible for Mrs.

McPhail to prove the causation element necessary for recovery on a theory of

products liability. However, the evidence in the record regarding Mr. McPhail’s

knowledge relates to the dangers of bypass starting generally, and not to the

specific dangerousness at issue here. That is, Mr. McPhail may have been aware

that a tractor will move if it is bypass started while it is in gear. Nothing in the

record shows that Mr. McPhail also knew that a tractor that appeared to be in

neutral could, in fact, be capable of unexpected movement. Similarly, the

evidence Deere presented regarding the knowledge of farmers in the community

also addressed only the dangers of starting in gear, not the danger that a tractor

could appear to be in neutral when in fact it was not. Mrs. McPhail has presented

evidence that this model of tractor was capable of potentially lethal behavior that

is not addressed by the tractor’s warning. This evidence creates a genuine factual

dispute with regard to the adequacy of the warning, and makes summary judgment

in favor of Deere inappropriate.

IV. CONCLUSION

The district court did not err in exercising jurisdiction. However, we find

that there are genuine issues of material fact regarding whether the warning

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clearly and adequately addresses the tractor’s ability to be in gear and move under

power even when it appears to be in neutral. Accordingly, we REVERSE the

district court’s grant of summary judgment in favor of Deere, and REMAND the

case for further proceedings. Appellant’s motion to seal the appendix, Vol. III, is

GRANTED.

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