FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARI DANIEL, individually and as
the personal representative of the
Estate of Melvin Daniel and as
Guardian for the minor children,
No. 08-35592
and as the personal representative
of the Estate of Fred Ramiskey,
Plaintiff-Appellant,
D.C. No.
3:06-cv-05706-KLS
v. OPINION
COLEMAN COMPANY INC., a
Delaware Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Karen L. Strombom, Magistrate Judge, Presiding
Argued and Submitted
August 3, 2009—Seattle, Washington
Filed March 26, 2010
Before: Harry Pregerson, John T. Noonan, Jr. and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Noonan;
Dissent by Judge Pregerson
4891
4894 DANIEL v. COLEMAN COMPANY
COUNSEL
Philip A. Talmadge, Peter Lohnes, Tukwila, Washington;
Michael E. Blue, Jeffrey M. Campiche, Seattle, Washington;
Patrick J. Kang, Seattle, Washington; Thomas C. Bierlein,
Issaquah, Washington, for the plaintiff-appellant.
Kenneth R. Lang, Amy M. Decker, Wichita, Kansas; Keith
Gerrard, Todd W. Rosencrans, Seattle, Washington, for the
defendant-appellee.
OPINION
NOONAN, Circuit Judge:
This dispute arises from a wrongful death action initiated
by Mari Daniel on behalf of her husband and her father, Mel-
vin Daniel and Fred Ramiskey.
FACTS
In September of 2006, Robert Haney, Fred Ramiskey, and
Melvin Daniel went on a hunting trip in the Chambers Lake
area near Packwood, Washington, staying in Daniel’s twenty-
five foot camper. Haney was the owner of a Coleman Power-
mate 5045 heater, which was purchased in 1995. Coleman
describes the Powermate 5045 as a “commercial” grade
heater, and the package label identifies it as an “industrial”
heater. It operates off of 20-pound or larger propane tanks and
is rated at up to 45,000 Btu of heat output. The warning on
the base of the heater states: “Follow instructions and Warn-
ings to avoid fires, serious injury or death. For outdoor or well
DANIEL v. COLEMAN COMPANY 4895
ventilated construction use only. Never use inside house,
camper, tent, vehicle or other unventilated or enclosed area.”
Haney had seen the warning but had not read its contents. The
Powermate 5045 also includes product instructions which
direct users to open the propane tank fully and to relight the
heater if the flame does not glow red.
During a cold night, Haney retrieved the Powermate 5045
and, with Daniel and Ramiskey’s approval, operated the
heater inside of the camper for about one hour. Haney opened
the window to the camper four inches while the heater was in
use. Haney estimates that he operated the heater on its “high”
setting for half an hour, and on its lowest setting for the
remainder of the hour. These estimates were confirmed
through further tests by the local sheriff detectives after the
accident.
That night, Daniel and Ramiskey died of carbon monoxide
poisoning. Haney survived.
PROCEEDINGS
Marie Daniel filed this lawsuit in December of 2006,
asserting wrongful death claims under Washington law. Dan-
iel claimed that Coleman failed to provide adequate warnings
at the time of manufacture. Daniel also claimed that Cole-
man’s knowledge of other incidents involving its heaters cre-
ated a post-manufacture duty to warn of the risks associated
with the Powermate 5045. Finally, Daniel claimed that the
heater was defectively designed because it was more danger-
ous than a reasonable consumer would expect, and because it
lacked alternative design features which would have made the
heater more safe. The district court dismissed Daniel’s post-
sale duty to warn claim, but allowed the other claims to pro-
ceed to trial.
During the trial, the jury heard of five other incidents in
which eight people died as a result of carbon monoxide poi-
4896 DANIEL v. COLEMAN COMPANY
soning while using the Powermate 5045 in enclosed spaces.
The court, however, did not admit other evidence of cases in
which users of different Coleman heater models were killed
by carbon monoxide.
The jury returned a verdict that the Coleman Powermate
5045 was reasonably safe in its design and time-of-
manufacture warnings. Daniel filed a motion for a new trial
on the grounds that the district court erred when it dismissed
Daniel’s post-sale duty to warn claim, and that several of the
court’s evidentiary rulings were erroneous and prejudicial.
The district court rejected the motion. Daniel appeals.
ANALYSIS
[1] Daniel argues that the district court erred when it failed
to instruct the jury that Coleman had a post-sale duty to warn
about the risk of carbon monoxide poisoning that results from
operating the Powermate 5045 in “enclosed areas and . . . with
the fuel flow reduced.” Daniel’s argument is without merit.
Whether a duty to warn exists is “a question of law that gener-
ally depends on mixed considerations of logic, common
sense, justice, policy, and precedent.” See Simonetta v. Viad
Corp., 165 Wash.2d 341 (2008). Here, Daniel does not pres-
ent evidence of a new and distinct danger which arose after
the point of sale. The danger of carbon monoxide poisoning
was known to Coleman before the sale, and the heater was
sold with warnings that, if followed, would prevent carbon
monoxide poisoning. The jury found that the point-of-sale
warnings on the Powermate 5045 adequately covered the risk
of using the heater inside a camper and at reduced fuel flow.
Daniel does not contest this finding on appeal. The district
court properly held that there was no post-sale duty to warn
of a danger already accounted for.
[2] Daniel also argues that the district court erred when it
precluded the admission of evidence regarding a number of
carbon monoxide deaths resulting from the use of other mod-
DANIEL v. COLEMAN COMPANY 4897
els of Coleman heaters. According to Daniel, the evidence
was admissible to prove that Coleman had knowledge or
notice that its propane heaters posed a carbon monoxide dan-
ger. However, the parties stipulated during pretrial that “Cole-
man is aware of incidents in which consumers have allegedly
operated Coleman propane radiant heaters in enclosed spaces
resulting in the consumers’ death from carbon monoxide poi-
soning.” These admissions were read to the jury several times
and precluded the need to introduce specific evidence of other
incidents to prove notice or knowledge.
[3] Nor was the evidence likely to be admissible to prove
the substance of Daniel’s design defect and negligence
claims. The record suggests that much of the evidence was
not in admissible form. Moreover, the Powermate 5045 heat-
ers were marked for “outdoor,” “industrial,” and “construc-
tion” use; they were physically larger and more powerful than
the heaters involved in the other incidents; and they included
different warning language relating to use in enclosed areas.
The district court acted within its discretion when it referred
to these factors in finding that accidents caused by Coleman’s
other heater models were not “substantially similar” to the
accident in the present case. See Cooper v. Firestone Tire and
Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) (citations
omitted) (“[a] showing of substantial similarity is required
when a plaintiff attempts to introduce evidence of other acci-
dents as direct proof of negligence, a design defect, or notice
of the defect”).
[4] Daniel also disputes the district court’s decision to
exclude the results of several tests performed by Coleman on
its indoor “camping” heater, the Focus 5, as well as evidence
of a 1992 warning campaign associated with the same heater.
According to Daniel, the excluded evidence would have
shown that Coleman knew that its heaters generated increased
levels of carbon monoxide when operated at reduced fuel
flow. However, Daniel was permitted to present substantially
equivalent evidence at trial to prove this very point. Several
4898 DANIEL v. COLEMAN COMPANY
witnesses, including two that were Coleman employees, testi-
fied that Coleman knew, from its tests in the 80s and 90s, that
running a propane heater at low fuel flow could potentially
produce higher levels of CO. See Trial Transcript at 337.
Results from several of the tests mentioned were admitted as
exhibits during trial. Because the evidentiary decision is
unlikely to have caused Daniel substantial prejudice, the
court’s ruling does not constitute reversible error. See Harper
v. City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008).
[5] Daniel’s final challenge is to the district court’s deci-
sion, pursuant to Rule 37(c) of the Federal Rules of Civil Pro-
cedure, to exclude a report from Daniel’s expert, Hutter, on
the grounds that it was untimely. We find no error in the dis-
trict court’s application of the Rule 37(c) sanctions. Daniel’s
late report sought to substantiate deposition testimony that
was taken early in the discovery process. The untimeliness
was neither justified nor harmless.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
PREGERSON, Circuit Judge, dissenting:
In this case, the use of a dangerous consumer product, a
Powermate 5045 heater, led to the deaths of two people. After
Coleman began to sell the Powermate 5045, Coleman learned
that the product’s safety features and warnings were inade-
quate to protect consumers, some of whom died. In such cir-
cumstances, I cannot agree with the majority that as a matter
of “logic, common sense, justice, [and] policy,” Coleman bore
no post-sale duty to warn consumers of heightened dangers
associated with the Powermate 5045. Simonetta v. Viad Corp.,
197 P.3d 127, 131 (Wash. 2008) (en banc).
This appeal arises out of a suit filed by Mari Daniel, the
widow of Melvin Daniel and daughter of the late Fred
DANIEL v. COLEMAN COMPANY 4899
Ramiskey. During a family trip in 2006, Ramiskey, Melvin
Daniel, and Robert Haney, a Chief Warrant Officer in the
United States Army, used a Coleman Powermate 5045 heater
to stay warm at night. Before he went to bed, Haney set the
heater to its lowest setting and left the window of his twenty-
five foot camper slightly open. Haney awoke to find
Ramiskey and Daniel dead from carbon monoxide poisoning.
Haney himself was hospitalized, but survived. Roughly two
months after the tragedy, Haney was deployed to Iraq.
The majority asserts that Coleman bore no post-sale duty to
warn consumers of the risks associated with the Powermate
5045 because one risk—that of death—already existed, and
was warned of, at the time of sale. Such a conclusion subverts
Washington law, which requires that “where a manufacturer
learned . . . about a danger connected with the product after
it was manufactured[,] . . . the manufacturer is under a duty
to act with regard to issuing warnings or instructions concern-
ing the danger . . . .” Wash. Rev. Code § 7.72.030(1)(c). Simi-
larly, the Restatement of Torts provides that a reasonable
seller would provide a warning after the time of sale if “the
seller knows or reasonably should know that the product
poses a substantial risk of harm to persons” and “the risk of
harm is sufficiently great to justify the burden of providing a
warning.” Restatement (Third) of Torts: Product Liability
§ 10(b).
That the potential result—death—was present both before
and after Coleman sold the Powermate 5045 does not mean,
as the majority believes, that no appreciable new risk or dan-
ger of death arose after the time the product was put on the
market. This erroneous conclusion stems from the majority’s
conflation of risk and result. A risk, however, is the “uncer-
tainty of a result, happening, or loss; the chance of injury,
damage or loss; esp[ecially], the existence and extent of the
possibility of harm. Black’s Law Dictionary 1442 (9th ed.
2009) (emphasis added). In the case before us, Coleman man-
ufactured and sold a product with the belief that the product
4900 DANIEL v. COLEMAN COMPANY
carried with it a certain risk, or chance, of harm. Later, after
the time the product was sold and put on the market, Coleman
learned that the Powermate 5045’s safety features and warn-
ings were inadequate to protect consumers from a risk that
was far greater than the company first believed to exist. Con-
sumers kept dying. Once Coleman obtained this new knowl-
edge of the heightened risk, I would hold that, as a matter of
law, the company bore a post-sale duty to warn consumers of
the newly perceived risk.1
I would also hold that the district court abused its discretion
by excluding evidence of accidents involving other models of
Coleman propane heaters. According to a Consumer Products
Safety Commission report, these accidents resulted in fifty-
eight carbon monoxide deaths. Nevertheless, the district court
ruled that the other incidents were not substantially similar to
the incident at issue here because the other heaters bore differ-
ent labels than the Powermate 5045. “The ‘substantially simi-
lar’ predicate for the proof of similar accidents is defined . . .
by the defect . . . at issue.” Jackson v. Firestone Tire & Rub-
ber Co., 788 F.2d 1070, 1083 (5th Cir. 1986), cited with
approval by Cooper v. Firestone Tire & Rubber Co., 945 F.2d
1103, 1105 (9th Cir. 1991). The alleged defect at issue here
is excess production of carbon monoxide. The Powermate
5045 and the other heaters all suffered from this same defect.
Furthermore, some of the other heaters, such as the Focus 15
and Focus 30, are visually similar to the Powermate 5045.
Incidents involving other heaters were therefore substantially
similar to the incident involving the Powermante 5045 here.
Evidence of those other incidents should have been admitted.
Lastly, I would hold that the district court abused its discre-
1
Because Coleman did not learn, and could not have learned, of the
heightened risk until after the time of sale, this conclusion does not con-
flict with the jury’s determination that Coleman’s time of sale warnings
were adequate. See Restatement (Third) of Torts: Product Liability § 10 at
comment c.
DANIEL v. COLEMAN COMPANY 4901
tion by excluding a report from Mari Daniel’s expert, Gary
Hutter. Hutter submitted an expert report, based in part on
transcripts of Haney’s testimony. Prior to the close of discov-
ery, Haney happened to come home on leave from Iraq. Only
then was Hutter able to speak face to face with Warrant Offi-
cer Haney. After learning additional information during this
in-person interview, Hutter realized that his earlier report was
wrong, and attempted to submit a report correcting his earlier
misunderstanding. Though the discovery period had not yet
closed, and though trial would not commence for almost three
months, the district court rejected Hutter’s report, and any
related testimony, as untimely. In a serious case such as this
one, involving a dangerous product and multiple deaths, a dis-
trict court does not properly exercise its discretion when, in
the name of judicial efficiency, it rejects an expert’s attempt
to get the facts right.
Accordingly, I dissent.