No. 89-024
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
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ANDREW KRUEGER and SUZANNE KRUEGER,
Plaintiffs and Respondents,
GENERAL MOTORS CORPORATION,
a Delaware Corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District Court,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Curtis G. Thompson; Jardine, Stephenson, Blewett & Weaver,
Great Falls, Montana
Richard A. Bowman, Argued, Kent B. Hanson and Kim M.
Schmid; Bowman & Brooke, Minneapolis, Minnesota
For Respondent:
I-
3ennis Patrick Conner, Argued, Great Falls, Montana
0 *grik B. Thueson, Helena, Montana
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Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from a jury verdict and judgment of
the Eighth ~udicialDistrict, Cascade County, awarding gener-
al and special compensatory damages in a products liability
case. Defendant General Motors Corporation [GM] appeals an
award of the District Court of the ~ i g h t hJudicial District,
Cascade County awarding the plaintiff Andrew Krueger
(Krueger) damages in the sum of $1,293,430.00. The District
Court found that GM's failure to warn regarding a defectively
designed full-time four wheel drive transfer case was the
proximate cause of plaintiff's injuries. We affirm.
GM raises the following issues and specifications of
error on appeal:
1) Did the District Court err in excluding evidence of
videotaped tests conducted by the defendant's expert witness
regarding the response of various types of transfer cases
under conditions similar to the accident in question?
2) Did the District Court err in admitting evidence of
other incidents involving the sudden rolling of vehicles
equipped with the New Process Model 2 0 3 transfer case?
3) Did the District Court err in excluding evidence of
plaintiff's prior drug convictions and alleged habitual drug
use on the issue of plaintiff's life expectancy?
4) Did the District Court err in instructing the jury
regarding the affirmative defense of assumption of the risk
in products liability litigation?
5 Is there substantial evidence in the record to
support the District Court's finding that GM's failure to
warn was a proximate cause of Andrew Krueger's injuries?
6) Did the District Court err in admitting into evi-
dence hearsay testimony and allowing plaintiff's arguments
alleged by defendant to be based on hearsay statements?
7) Did the District Court err in overruling defendants
objections to plaintiff's closing arguments requesting the
jury to "send a message" to GM when punitive damages were not.
an issue in the case?
On February 17, 1983 Krueger experienced problems with
the universal joint on the front drive shaft of a 1976
General Motors Chevrolet full-time four wheel drive pickup
that he had borrowed from a friend, He drove the pickup t.o
the Pit Stop, an auto repair shop in Great Falls owned by a
friend, where he planned to remove the shaft and leave it for
repairs.
Krueger parked the truck on the sloping driveway outside
the Pit Stop (approximately S f 0 ) and with the vehicle engaged
in park proceeded to remove the front drive shaft. When
Krueger disconnected the shaft the pickup began to roll down
the slope of the driveway. The back of Krueger's head got
caught in the front differential and was pulled forward on to
his chest as the truck rolled over him. The accident broke
Krueger's neck and severely damaged his spinal cord,
rendering Krueger a quadriplegic.
Prior to 1973, all GM four wheel drive vehicles were
equipped with conventional transfer cases; with such transfer
cases the rear drive shaft remains locked when the vehicle is
in "park." This is necessary because with a conventional
transfer case disengaged and the wheel hubs unlocked, as they
normally would be on dry pavement, the vehicle is essentially
a two wheel drive vehicle and would roll unless the rear
drive shaft was locked.
The pickup involved in this accident was equipped with a
New Process Model 203 full-time four wheel drive transfer
case, used in GM models with automatic transmissions from the
years 1973 to 1979. On these vehicles, the "park" gear locks
the power output shaft leading from the engine to the
transfer case, to which the front and rear drive shafts are
then connected.
Because of cornering problems where the outer wheel must
rotate faster than the wheels on the inside of the corner, a
differential is needed to compensate for these two different
rotation speeds. A differential makes this compensation by
applying the engine's driving force through the path of least
resistance. In a full-time four wheel drive vehicle, a third
inter-axial differential, located in the transfer case, is
needed to compensate for the difference in cornering speeds
between the front and rear wheels. When either of the drive
shafts is disconnected on a full-time four wheel drive, this
inter-axial differential applies the locking force of the
"park" gear through the path of least resistance to the drive
shaft that is no longer connected, this allows all the
vehicle's wheels, including those on the still connected axle
and drive shaft, to roll freely. Thus, a vehicle equipped
with a New Process Model 203 transfer case and engaged in
"park" will begin to roll when a single drive shaft is
removed or a single wheel is jacked off the ground. The only
way to prevent this motion is to first engage the vehicle in
"park" and then in four wheel drive "lock." Engaging "lock"
on a full-time four wheel drive is similar to engaging the
transfer case and locking the hubs on a conventional four
wheel drive. It locks all wheels so they will turn at the
same speed regardless of cornering distances, eliminatinq the
function of the differential, and thus no one portion of the
drive train can become a path of least resistance.
As one can see, there is a great difference in the
effect of putting a full-time versus a conventional four
wheel drive pickup in park when the front drive shaft is
disconnected. In the conventional models, "park" locked the
rear drive shaft and that is all that had to be done. Rut in
a vehicle equipped with the New Process Model 203 one had to
place the transmission in "park" and also engage the transfer
case in "lock," locking all four wheels and insuring that the
vehicle was completely immobilized.
During his service in the military, Krueger gained
considerable experience and knowledge regarding the operation
and repair of conventional four wheel drive vehicles.
Krueger had also been employed as a drive line specialist for
Glacier Motors in Cut Bank, Montana. During that time he
built and repaired approximately 500 drive lines. Krueger's
knowledge or lack thereof of the dangers in removing the
front drive shaft on a full-time four wheel drive equipped
with the New Process Model 203 and whether GM provided a
reasonably safe transfer case design and/or a warning suffi-
cient to avoid strict products liability were focal issues at
trial.
During trial, plaintiff advocated an alternative trans-
fer case design, the Borg Warner Quadra Trac (used in Jeeps
at the time), asserting that it would have prevented the
accident. The Quadra Trac employs a limited-slip friction
clutch in the transfer case to retain the traction that would
be lost when all the power is transferred via the
differential to the wheel experiencing the least resistance.
The friction clutch requires an individual wheel or axle to
experience a threshold amount of torque for the clutch to
slip and allow the differential to work freely. Until the
threshold level of torque is reached, such as when the inside
wheel experiences resistance when cornering, both wheels will
revolve at the same speed. Thus, when a single wheel is the
only one powered, such as when one wheel spins out on ice or
snow, the friction clutch provides a limited traction
recovery to the other wheel until the spinning wheel regains
its traction. A vehicle equipped with the New Process 203,
on the other hand, would be unable to generate any traction
and remain immobile. Friction clutches wear out quickly and
are rarely maintained at the torque specifications level
present when manufactured.
Krueger argued that a properly maintained Borg Warner
Quadra Trac transfer case would have prevented the accident
because the friction clutch in the transfer case differential
would have engaged the park gear to the rear drive shaft once
the vehicle began to roll. Plaintiff contended that this
would have either held the vehicle on the slope or, if the
clutch was worn, slowed its rolling enough to provide Krueger
enough time to get clear of the vehicle. GM argued that even
a Borg Warner Quadra Trac transfer case at specifications
would not have held the vehicle on the accident slope.
I.
We now address the first issue raised by GM: Did the
District Court err in excluding evidence of videotaped tests
conducted by the defendant's expert witness regarding the
response of various types of transfer cases under conditions
similar to the accident in question? In its brief, GM argues
that copies of the videotapes were given to the plaintiff
prior to trial, and thus do not raise a discovery compliance
issue. At the deposition of defendant's expert, Richard
Keefer, approximately two weeks prior to trial, GM assured
Krueger's attorney, Mr. Dennis Conner, that any such
videotapes would be disclosed prior to trial:
Q (BY MR. CONNER) Well, what pending
assignments do you have?
A Pending assignments?
Q Right.
A I don't believe I have any specific
pending assignments. . . . if refinements to the
preliminary work we've done on evaluating various
kinds of vehicles, full-time and/or part time and.
t h e rollaway s i t u a t i o n , a r e r e q u e s t e d , why, I
e x p e c t w e ' l l do it. And i f i t ' s r e q u e s t e d t h a t
t h e y a r e r e p o r t e d i n some way, why, we c e r t a i n l y
have t h e c a p a b i l i t y t o do t h a t .
MR. CONNER: W e l l , i f h e ' s g o i n g t o d o any
f u r t h e r work p r i o r t o t h e t i m e o f t r i a l , I ' d l i k e
s u c h documents o r r e c o r d s t h a t a r e g e n e r a t e d which
a r e d i s c o v e r a b l e t o h e c e r t a i n l y produced p r i o r t o
t r i a l , a s w e l l a s having t h e opportunity t o f u r t h e r
d e p o s e him---
MR. HANSON: W e l l , i f you're agreeing,
then---
MR. CONNER: ---on t h a t s u b j e c t .
MR. HANSON: ---when you h a v e y o u r w i t n e s s e s
d o a l l t h e work t h e y h a v e n ' t y e t d o n e t h a t y o u ' r e
g o i n g t o r e p r o d u c e them f o r d e p o s i t i o n s , f i n e .
Tamny h a d n ' t done j a c k s q u a t when h e g o t u n d e r
oath. And we're n o t g o i n g t o a g r e e t o any k i n d o f
c o n d i t i o n s on o u r p e o p l e , r e d e p o s i n g them, t h a t
i s n ' t g o i n g t o a p p l y t o you, c e r t a i n l y .
- -l l c e r t a i n l y - - whatever e x h i b i t s
We w i show you
a r e g e n e r a t e d , - -e - i l l i n f o r m you o f a n y t h i n g
and w w
y o u ' r e e n t i t l e d --
t o know a b o u t t h e b a s i s o r g r o u n d s
f o r -- i s o p i n i o n s .
- h Whether I ' m g o i n g t o b r i n g M r .
K e e f e r back and h a v e you d e p o s e him a g a i n , I h i g h l y
doubt it, j u s t a s I h i g h l y doubt t h a t y o u ' r e going
t o g i v e me a m e a n i n g f u l o p p o r t u n i t y t o l e a r n what
Tamny's d o n e s i n c e t h e t i m e o f h i s d e p o s i t i o n .
K e e f e r D e p o s i t o n , pp. 123-125. ( ~ m p h a s i s dded.)
a Mr. ~eefer
was d e p o s e d on J u l y 12, 1988. P r i o r t o t h e d e p o s i t i o n he
conducted tests of various four wheel drive vehicles to
d e t e r m i n e i f t h e y would r o l l on a s l o p e e q u a l t o t h e a c c i d e n t
s l o p e when t h e d r i v e l i n e was removed. During t h e s e t e s t s he
determined that a 1977 Jeep equipped with a Rorg Warner
Q u a d r a T r a c t r a n s f e r c a s e would n o t r o l l on t h e t e s t s l o p e .
Keefer Deposition, p. 139. On J u l y 2 1 and 22 h e c o n d u c t e d
f u r t h e r t e s t s , r e c o r d i n g them on v i d e o t a p e . GM a l l e g e s t h a t
t h i s new e v i d e n c e would d e m o n s t r a t e t h a t v i r t u a l l y any v e h i -
cle, i n c l u d i n g a J e e p w i t h Q u a d r a T r a c , would r e s p o n d a s t h e
accident vehicle did under the circumstances. The trial
began on J u l y 2 5 , 1988, t h r e e days a f t e r t h e f i n a l t e s t i n g .
The existence and content of the videotapes was not disclosed
to plaintiff until mid-trial, after the plaintiff had rested
on August 3, 1988.
In this regard, the facts of this case are similar to
those in Workman v. McIntyre (1980), 190 Mont. 5, 617 P.2d
1281, where we held that admission of an undisclosed film
exhibit was an abuse of discretion. The film was not made
available to the plaintiff after assurances by the State that
it would be. We held that:
These tactics are contrary to the letter and spirit
of all pretrial discovery which is to prevent
surprise, to simplify the issues, and to permit
counsel to prepare their case for trial on the
basis of the pretrial order.
Workman, 617 P.2d at 1285. It is clear from the record in
this case that GM assured the plaintiff that any further
exhibits generated by their expert would be disclosed prior
to trial and that GM failed to do so. The District Court did
not abuse its discretion in excluding the videotape evidence.
GM's expert was also precluded from testifying regarding
the tests conducted in the excluded videotapes, and regarding
current model full-time four wheel drive designs. The trial
judge ruled that:
Well that's part of the experiment and that's
subsequent to the close of discovery. And its also
a possibility of interjecting subsequent designs.
So our court is clear on that that those are not
permissible.
Transcript, August 8, 1988, p. 1996.
We agree. In a strict liability action under a design
defect theory, the question is whether the design specifica-
tions were partly or totally defective. Rix v. General
Motors Corp (1986), 222 Mont. 318, 330, 723 P.2d 195, 202.
Design specifications are "judged not by the condition of the
product, but the state of scientific and technological
knowledge available to the designer - - - - - the product
at the time
- placed - - market." Kuiper v. Goodyear Tire & Rubber
was on the
Co. (1983), 207 Mont. 37, 62, 673 P.2d 1208, 1221. (Emphasis
added.) In - we set forth the following elements for
Rix,
instructional purposes in an alternative design products
liability case:
. . . (3) In determining whether an alternative
design should have been used, the jury should
balance so many of the following factors as it
finds to - pertinent - - - - of manufacture:
be at the time
)( a The reasonable probability that the
product as originally designed would cause serious
harm to the claimant.
(b) Consideration of the reasonable probabil-
ity of harm from the use of the original product as
compared to the reasonable probability of harm from
the use of the product with the alternative design.
(c) The technological feasibility of an
alternative design that would have prevented claim-
ant's harm.
- 723 P.2d at 201.
Rix, (Emphasis added.) Thus, the only test
evidence admissible in this case would be test evidence
concerning other designs available at the time the New Pro-
cess 203 transfer case was placed on the market, such as the
Borg Warner Quadra Trac, or conventional transfer cases. The
record indicates that all the evidence excluded by the Dis-
trict Court was either associated with the inadmissible
videotape tests, or involved subsequent designs used in the
a.utomobile industry, particularly the designs used in current
model full-time four wheel drive passenger vehicles. We
reiterate the rule as we did in Rix:
. . . a design is defective if - - - - of
at the time
manufacture an alternative designed product would
have been safer than the original designed product
and was both technologically feasible and a
marketable reality. Again - - frame under
-- the time
scrutiny - - -.time - manufacture - - any
is the of and not
other time.
- 723 P.2d at 202.
Rix, (Emphasis added.) The District Court
did not abuse its discretion in excluding evidence concerning
the late test results and evidence of d.esigns not pertinent
to the time of manufacture.
11.
Regarding the second issue raised by GM, the test of
admissibility for evidence of other accidents in a products
liability case is "whether the circumstances surrounding the
product involved in other accidents were substantially the
same or similar to the accident at issue." Kuiper, 673 P.2d
at 1219. The accidents need not he identical to be
admissible. Runkle v. Burlington IJorthern (1980), 188 Mont.
286, 292, 613 P.2d 982, 986.
Here, the other accidents all involved the New Process
Model 203 transfer case and its inherent design characteris-
tics which cause it to roll when a single wheel is jacked up
or a single drive shaft removed. Although one incident
involved a Chrysler vehicle, that vehicle was equipped with
the same 203 transfer case used by GM. Also, the incident
involving removal of the rear drive shaft demonstrates the
same roll-away characteristics at issue in this case that
distinguish the New Process 203 from a conventional transfer
case or one equipped with a limited slip differential.
The admission of evidence of other accidents in products
liability litigation is entrusted to the discretion of the
trial judge. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. I.,
9, 713 P.2d 527, 532. We do not see any abuse of discretion
in this case.
As its third issue GM argues that the District Court
erred in excluding evidence of Krueger's alleged habitual
drug use on the issues of plaintiff's life expectancy and
assumption of the risk. Relevant evidence may be excluded if
its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleadinq
the jury. Rule 403, M.R.Evid. Here, the evidence is
speculative at best, and, if it bears any relevance at all to
this case, the evidence is of such a highly prejudicial
nature in comparison to its probative value that its
admission could constitute error.
Under Rule 403, the determination of admissibility is
within the discretion of the trial judge and will not be
disturbed unless there is manifest abuse of discretion.
Zeke's Distributinq Co. v. Brown-Forman Corp. (Mont. 1989) ,
779 P.2d 908, 911, 46 St.Rep. 1678, 1681; Dahlin v. Holmquist
(1988), 766 P.2d 239, 241, 45 St.Rep. 2127, 2129-2130. The
exclusion of the drug evidence in this case was a sound
exercise of discretion hy the trial judge.
IV.
Pertaining to issue IV, at trial, the District Court
gave the following instruction, i11 addition to the pattern
instruction (Instruction No. 23) , on the affirmative d-efense
of assumption of the risk:
The Defendant has the burden of proving that
Andy Krueger assumed the risk of his injuries. To
establish this defense, General Motors must prove:
(1) That Andy Krueger actually knew before he was
injured that the vehicle would roll if he dlscon-
1
nected the front driveline;
(2) That knowing this, Krueger voluntarily exposed
himself to the danger, and.
(3) That Krueger unreasonably exposed himself to
that danger.
If the Defendant fails to prove all three of
the above, then Andy Krueger did not assume the
risk of his injuries.
Instruction No. 20. GM argues that the instruction errone-
ously requires that Krueger knew the truck would roll on him
and render him a quadriplegic before he attempted to discon-
nect the front driveline, the absurd equivalent of requiring
that he have a death wish.
With regard to the affirmative defense of assumption of
the risk in products liability, Montana has adopted the
position of the Restatement of Torts 2d, 9 402A, Comment (n):
Contributory negligence of the plaintiff is
not a defense when such negligence consists merely
in a failure to discover the defect in the prod-
uct, or to guard against the possibility of its
existence. On the other hand the form of contribu-
tory negligence which consists in voluntarily and
unreasonably proceeding to encounter a known dan-
ger, and commonly passes under the name of assump-
tion of risk, is a defense under this Section as in
other cases of strict liability. If the user or
consumer discovers the defect and is aware of the
danger, and nevertheless proceeds unreasonably to
make use of the product and is injured hy it, he is
barred from recovery.
Brown v. North Am. Mfg. Co. (1977), 176 Mont. 98, 110, 576
P.2d 711, 719. Assumption of the risk is now apportioned in
a manner similar to fault under a comparative negligence
scheme. Zahrte v. Sturm, Ruger & Co., Inc. (19831, 203 Mont.
90, 94, 661 P.2d 17, 19.
The standard applied in evaluating the defense is a
subjective one rather than the objective standard of the
reasonahle man test:
"The s t a n d a r d t o be a p p l i e d i s a s u b j e c t i v e one, of
what the particular plaintiff sees, knows,
u n d e r s t a n d s and a p p r e c i a t e s . I n t h i s it d i f f e r s
from t h e o b j e c t i v e s t a n d a r d which i s a p p l i e d t o
contributory negligence. . . . I f by r e a s o n of
age I or lack of information, experience,
i n t e l l i g e n c e , o r judgment, t h e p l a i n t i f f d o e s n o t
u n d e r s t a n d t h e r i s k i n v o l v e d i n a known s i t u a t i o n ,
h e w i l l n o t b e t a k e n t o assume t h e r i s k , a l t h o u g h
i t may be found t h a t h i s c o n d u c t i s c o n t r i b u t o r y
n e g l i g e n c e b e c a u s e it d o e s n o t conform t o t h e
community s t a n d a r d o f t h e r e a s o n a b l e man."
Brown, 5 7 6 P.2d a t 719, q u o t i n g R e s t a t e m e n t of T o r t s 2d, $
496D, Comment (c) . I n o r d e r f o r GM t o a s s e r t t h e d e f e n s e ,
Krueger m u s t have had s u b j e c t i v e o r a c t u a l knowledge t h a t t h e
truck would roll. This does not require that he have
knowledge of t h e s e v e r i t y o f t h e i n j u r i e s h e would suffer.
GM admitted that Krueger would have never attempted to
complete t h e r e p a i r s i n t h e manner h e c h o s e i f h e knew t h a t
the vehicle would begin to roll when h e disconnected t h e
drive shaft.
GM asserts that Instruction 20 is tantamount to an
a b o l i t i o n of t h e d e f e n s e o f assumption o f t h e r i s k i n prod-
ucts liability. W disagree.
e The i n s t r u c t i o n merely re-
q u i r e d t h a t t h e p l a i n t i f f have a c t u a l knowledge o f t h e danger
and then specifically s t a t e d what a c t u a l knowledge of the
d a n g e r e n t a i l s under t h e f a c t s of t h i s c a s e . I t was o b v i o u s
t o t h e j u r y under t h e s e f a c t s t h a t Krueger l a c k e d such knowl-
edge. I n o t h e r c a s e s it may be e q u a l l y o b v i o u s t h a t a p l a i n -
t i f f h a s s u b j e c t i v e knowledge of t h e a c t u a l danger posed by a
defect. I n such c a s e s , a j u r y c o u l d t h e n e v a l u a t e t h e e x t e n t
t o which that plaintiff assumed the risk of his injuries.
It is reversible error to refuse to instruct on an
important p a r t of a p a r t y ' s theory of t h e case. Further-
more, a p a r t y h a s a r i g h t t o have j u r y i n s t r u c t i o n s which
are adaptable to his theory of the case. Tacke, 713 P. 2d at
534. Although we believe that Montana Pattern Instruction
7.05, taken directly from Zahrte, would have been a
sufficient, comprehendable and accurate statement of the law
in this case, we find no error on the part of the trial judge
in giving Instruction No. 20 as a complementary instruction
under the facts of this case.
v.
We now turn to the issue of sufficiency of the evidence,
(Issue V) , to support the District Court's denial of GM's
motions for directed verdict and new trial.
When reviewing a jury verdict, this Court's function is
to determine if there is substantial credible evidence in the
record supporting the jury ' s verdict. Gunning v. General
Motors Corp. (Mont. 1989), 779 P.2d 64, 66, 46 St.Rep. 1546,
1548, Weinberg v. Farmers State Bank of Worden (1988), 752
P.2d 719, 721-722, 45 St.Rep. 391, 392. Where there is
substantial evidence to support the jury's verdict the
District Court's refusal to grant a new trial will not be
disturbed. Brothers v. Town of Virginia City (1976), 171
Mont. 352, 358, 558 P.2d 464, 467. When reviewing a denial of
a motion for directed verdict, we concede as true all of
plaintiff's evidence and give the plaintiff the benefit of
all legitimate inferences. If the record at that point
should contain substantial evidence sustaining the jury
finding then the trial court's action in denying the motion
for directed verdict and submitting the cause to the jury,
and the jury verdict itself, must be sustained. Brothers,
558 P.2d at 467.
In the case at bar there is substantial credible evi-
dence supporting the jury's verdict and the District Court's
denial of GM's motions for directed verdict and new trial.
This evidence supports the finding that GM's failure to warn
concerning the inherent design characteristics of the New
Process Model 203 transfer case---characteristics causing
vehicles equipped with it to roll under circumstances that
vehicles equipped with conventional transfer cases would
not---was the proximate cause of Krueger's injuries.
Krueger's testimony and the testimony of the other accident
victims tended to prove the same thing: the accident victims
all believed that a vehicle equipped with the New Process
Model 203 transfer case would behave like a conventional four
wheel drive when a driveline was removed or a wheel jacked
up; they all testified that had they known otherwise they
would never have attempted the repairs in the manner they
did. Furthermore, evidence was presented regarding the Borg
Warner Quadra Trac transfer case that enabled the jury to
balance the transfer case design chosen by GM against the
feasibility and marketability of alternative designs.
A manufacturer may be required to provide a warning in
relation to its product if it is to avoid a determination
that the product is unreasonably dangerous. Restatement of
Torts 2d $ 402A, Comment (j) at 353 (1965). The product is
automatically defective if it is unreasonably dangerous, and
a warning is required but not given. Rost v. C. F. & I.
Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385.
It is the manufacturer's duty to warn inadequately informed
users about the risk of danger involved with the use of a
product. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54,
692 P.2d 440, 445.
The only alleged warning given by GM is contained in a
sticker that was located on the driver's sunvisor in the
accident vehicle and all vehicles equipped with the New
Process 203 transfer case. Plaintiff's Exhibit 199. This
sticker merely consists of operating instructions for full-
time four wheel drive in the unlocked and locked positions of
the transfer case, it does not warn of any of the dangers or
differences from conventional transfer cases when repairs are
attempted with the transfer case and interaxial differential
unlocked.
GM contends that because of Krueger's training in motor
vehicle repair and the precautions associated with it, (such
as using the parking brake, wheel chocks, and generally
avoiding repairs on a slope), it is clear that any warning
given "would have fallen on deaf ears." Rost, 616 P.2d at
386-387. In this regard, GM argues that the jury was
entitled to hear evidence regarding plaintiff's propensity
toward carelessness in the face of information available to
him, including evidence of plaintiff's alleged use of
dangerous drugs.
We have already discussed the admissibility of the
alleged drug evidence and do not believe the subject merits
further discussion. Furthermore, the "deaf ears" situation
in Rost is distinguishable from the case at bar. In Rost, a
warning by the manufacturer of elevator cables was excused
because the owner of the premises where the plaintiff was
injured had a duty to maintain and inspect the elevator and
would have failed to do so regardless of a warning of the
obvious fact that worn elevator cables pose a serious dan--
ger. In fact, the store owner in Rost had been involved in a
prior accident in the same elevator when the cables broke.
Here, there is no superseding cause excusing GM's failure to
warn. Thus, the jury was entitled to find that GM's failure
to warn was the proximate cause of Krueger's injuries.
VI.
We now come to issue VI concerning the admission of
hearsay statements and arguments based on such statements.
GM obiects to the admission of the hearsay testimony of an
alleged GM master technician as given by Krueger's expert
Simon Tamny. Mr. Tamny testified regarding a conversation
that he had with the technician about a similar accident the
technician had involving a 203 transfer case.
An expert may base an opinion on facts or data perceived
by or made known to him at or before the hearing. If of a
type reasonably relied upon by experts in a particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible into evidence. Rule 703,
M.R.Evid. - - Azure v. City of Billings (1979), 1 8 2
See e.g.
Mont. 234, 255, 596 P.2d 460, 472, State v. Deshner (19711,
158 Mont. 188, 193-194, 489 P.2d 1290, 1293-1294. At trial,
plaintiff qualified Mr. Tamny as an expert in transfer case
design. Field investigations of user experience is an
appropriate method for such an expert to form opinions as to
whether a particular transfer case design is an effective
design or is dangerous. Mr Tamny synthesized the
technician's accident with other incidents involving the New
Process 203 in arriving at his opinion that the transfer case
was defective and a warning should have been provided. - See
Azure, 596 P.2d at 472. The District Court did not abuse its
discretion in allowing plaintiff's expert to testify
concerning one of the bases upon which he formed his opinion.
GM's expert Paul Johnson testified that the torque
specifications of the limited slip differential in the alter-
native design transfer case advocated by Krueger were not
sufficient to hold the vehicle in place on the accident
slope. During cross examination of the witness, Krueger's
counsel referred to a hypothetical phone call where a Borg
Warner employee had confirmed that the specifications were
indeed the ones given in the testimony of Krueger's expert,
and thus would have immobilized the accident vehicle or at
least sufficiently slowed its rolling to allow the plaintiff
to get clear of the vehicle. Krueger's counsel challenged
GM's expert to call Borg Warner during a recess and confirm
the torque specifications of the alternative transfer case
design.
The District Court sustained GM's initial objection to
this questioning, then allowed Krueger's counsel to inquire
after the recess whether Mr. Johnson had made the phone call.
At closing argument, Krueger's counsel commented on Mr.
Johnson's failure to accept counsel's challenge to call Rorg
Warner regarding the specifications.
The situation here is similar to that in Gunnels v. Hoyt
(Mont. 1981), 633 P.2d 1187, 38 St.Rep. 1492, where we held
that the plaintiff was not prejudiced by several instances of
alleged misconduct by defense counsel, the most serious being
that defense counsel made improper comments upon and
references to excluded evidence, which indicated to the jury
that the plaintiff was concealing evidence. Improper
argument requires a reversal of a verdict only when prejudice
has resulted which prevents a fair trial. Gunnels, 633 P.2d
at 1194; Nelson v. Hartman (1982), 199 Mont. 295, 301, 648
P.2d 1176, 1179. Any prejudice suffered by the defendant
here was minimal, and certainlv did not rise to such level as
to deprive GM of a fair trial.
VII.
Finally, GM contends that the District Court erred in
overruling GM's objections to Krueger's closing argument
requesting the jury to "send a message to GM" when punitive
damages were not an issue.
We decline in this case to determine whether the "send a
message" argument is proper or prejudicial in products lia-
bility litigation where punitive damages are not an issue.
As we stated earlier, improper argument requires reversal of
a verdict only when prejudice has resulted that prevents a
fair trial. -----
Gunnels, - 633 P . 2 d at 11.94; Nelson, -
supra, -
supra,
648 P.2d at 1179. Considering the severity and permanent
nature of plaintiff's injuries, and the daily attendant care
he will require for the remainder of his life, we see the
amount of the the jury's verdict as compensation for the
plaintiff's injuries and not merely a reflection of alleged
inflammatory remarks made during the plaintiff's closing
arguments.
We conclude that there was no abuse of discretion by the
District Court in denying General Motor's motions for direct-
ed verdict and new trial.
AFFIRMED.
We Concur: A