dissenting:
I respectfully dissent. Were we affirming a jury verdict that rejected the plaintiff Hagan’s contention that the machinery as designed was “unreasonably dangerous,” there is little in the majority opinion with which I would disagree. Here, however, despite evidence that at slight cost a readily foreseeable and serious hazard of the machinery’s use could be obviated, the district court directed a verdict dismissing the suit, without affording the trial jury an opportunity to assess whether the design defect created an “unreasonably dangerous” hazard in the product’s foreseeable use.
Apparently, our standard for determining when a directed verdict is proper can bear repeating. As we stated in Boeing Company v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc):
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the nonmover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.
For reasons to be specified more fully below, I believe the evidence before the jury permitted reasonable and fair-minded men to infer that the machinery was unreasonably dangerous in its lack of any safety device with regard to the recurrent (three or four times a day) situation when the wood became blocked in the saw machinery. To unblock the wood, a worker had to remove a side-panel and reach inside the machinery. It was admittedly an operation extremely hazardous to the worker’s hands, which could become amputated when the wood was unblocked and the saw machinery commenced again to operate, unless the power was first cut off at a console some ten feet away from the machine.
Under the applicable Oklahoma products liability law, the issue, as I see it, is wheth*1054er the machinery was unreasonably dangerous to normal and foreseeable use because of the lack of an automatic cutoff of the machinery upon removal of the side-panel, or of a buzzer or warning light by way of alert; whether such safety device was reasonably required to prevent or minimize the foreseeable and recurrent hazard: that (as here) one unaware that another worker had not cut off the machinery at the console switch, but assuming that such had been done in accord with standard instructions, might have his hands seriously injured in the recurrent and regular operation of unblocking the wood.
A leading Oklahoma products liability decision, Smith v. United States Gypsum Company, 612 P.2d 251 (Okl.1980), cited by the majority, recognizes this as an actionable products liability hazard. In upholding a verdict against the manufacturer upon a similar theory, the Oklahoma Supreme Court referred to the holding in Parks v. Allis Chalmers, 298 N.W.2d 456 (Minn.1979) that “there was sufficient evidence for the jury to conclude that the manufacturer knew, or should have known ‘that some power users would leave the power unconnected while unclogging.’ ” Smith, supra, 612 P.2d at 254. (The Parks decision, incidentally, upheld a verdict for the plaintiff in a manufacturer’s products liability case with facts virtually indistinguishable from the present.)
As the majority notes, the determination of whether the machinery is unreasonably dangerous for such reason involves a weighing of the magnitude of the danger against utility factors (cost, efficiency, etc.) required to prevent it. The majority also admits that the testimony of the defendant’s president shows that a cut-off or other protective device was feasible at reasonable cost.
The evidence as to the crucial issue was admittedly skimpy. It included only the cited testimony of the defendant’s president, and of the plaintiff Hagan himself as to the recurrent nature of the hazard. It undoubtedly would have been preferable for the plaintiff to have secured expert witnesses. They, however, would have testified to nothing further than what the lay evidence shows: that the recurrent risk was of sufficient magnitude as to create a hazard, and that it was easily feasible at little expense to avoid the risk without loss of efficiency. The majority comes dangerously close to holding that a hazard — obvious to the common-sense of the jury, as developed by lay evidence — may not be proved without the shibboleth of formula testimony by Ph.D. experts.
I believe the majority fell into error in so insinuating. I do not think either the district court would have granted, or the majority upheld, a directed verdict if the plaintiff had produced such experts who, actually, would testify to no more than the ultimate evidence before the present jury. As stated by the Tenth Circuit, in affirming the denial of a directed verdict (and involving the application of Oklahoma products liability law under circumstances generically similar to the present): “In determining whether a machine is defective in design, the jury is entitled to weigh the ease of construction of a safety device against the magnitude of threatened harm in not constructing it. If the latter is of great magnitude and the former is relatively inconsequential, the trier may determine that the machinery was defectively designed.” Davis v. Fox River Tractor Company, 518 F.2d 481, 484 (10th Cir. 1975).
Accordingly, I respectfully dissent in our affirmance of the grant of a directed verdict, for I believe that there was sufficient evidence as the unreasonableness of the hazard as, under the applicable Oklahoma law, to raise an issue of fact triable by the jury.