Rogers, Cosandra v. Ingersoll Rand Co

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 1998 Decided May 29, 1998

No. 97-7131

Cosandra Rogers,

Appellee

v.

Ingersoll-Rand Company,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 95cv00432)

Barry R. Ostrager argued the cause for appellant, with
whom Mary Beth Forshaw, Simona S. Gurevich, William H.
Robinson, Jr., and Terrence M.R. Zic were on the briefs.

Charles C. Parsons argued the cause and filed the brief for
appellee.

Before: Wald, Sentelle and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Ingersoll-Rand Company ap-
peals from judgment entered upon a jury verdict awarding a
total of $16.7 million in actual and punitive damages for
injuries arising out of an incident in which a machine manu-
factured by appellant backed over and maimed appellee Co-
sandra Rogers. Rogers had sued both in strict liability and
in negligence. On appeal Ingersoll-Rand asserts that the
district court erred in its jury instructions and in evidentiary
rulings, and raises a number of other issues. We find no
reversible error and affirm.

I. Background

On April 17, 1992, a crew of workers repaved a portion of
Military Road in the District of Columbia. Crew member
Terrell Wilson operated a 50,000 pound milling machine man-
ufactured by appellant Ingersoll-Rand (known as its model
MT-6520) which stripped away layers of asphalt from the
road. A crew member, appellee Cosandra Rogers, directed
traffic, making sure her co-workers were not injured by
passing cars.

Just before the crew was scheduled to break for lunch,
Wilson prepared to back up the milling machine. He looked
over his left shoulder and did not see Rogers, who apparently
was standing in a blind spot with her back to the machine.
As the machine slowly rolled backwards, its alarm--designed
to go off when the unit backs up--did not sound. The MT-
6520 backed onto Rogers's left foot, and then rolled onto her
leg. Rogers's pelvis was crushed, and her internal pelvic
organs were mangled. Her left leg was amputated. Her lost
limb included the sacroiliac joint so that she will never be able
to use a prosthesis and is as thoroughly confined to a wheel-
chair as if she were a paraplegic.

Invoking the diversity jurisdiction of the district court, 28
U.S.C. s 1332, Rogers sued Ingersoll-Rand, seeking compen-
satory and punitive damages resulting from her injury. She
sought to hold Ingersoll-Rand strictly liable for her injuries
as a result of the allegedly defective design of the MT-6520,
and also claimed that Ingersoll-Rand was liable for her
injuries because of its negligence in designing or manufactur-
ing the MT-6520.

At the conclusion of the trial, Ingersoll-Rand moved for
judgment as a matter of law as to liability and punitive
damages. The district court denied this motion. The jury
subsequently concluded that Ingersoll-Rand was liable for
Rogers's injuries and awarded her $10.2 million in compensa-
tory damages and $6.5 million in punitive damages. Inger-
soll-Rand then renewed its motion for judgment as a matter
of law and moved in the alternative for a new trial. The
district court denied the motions, see Rogers v. Ingersoll-
Rand Co., 971 F.Supp. 4 (D.D.C. 1997), and Ingersoll-Rand
appealed.

II. Discussion

A.

First, we shall take up Ingersoll-Rand's claim that the
district court erred when it failed to instruct the jury on its
so-called "warnings" defense. At trial, Ingersoll-Rand intro-
duced into evidence its Operation and Maintenance Manual,
which instructs users of its milling machine to (1) stay ten
feet away from the rear of the machine when it is operating;
(2) verify that the back-up alarm works; and (3) "check area
for people or obstructions in your line of travel." In addition,
the MT-6520 itself had a sign which warned people to stay
ten feet away.

Ingersoll-Rand proposed the following jury instruction,
which it captioned "Requirement of Warning":

Sometimes a product cannot be made reasonably safe,
but it is nevertheless desirable that the product be
manufactured and distributed because of its utility. In

such cases, it is the obligation of the manufacturer to
give appropriate warning of any dangerous condition
which is likely to be encountered.

If you find that the milling machine was accompanied by
adequate warning which made the milling machine safe
for use if the warnings are followed, then the milling
machine was not unreasonably dangerous and was not
defective, and you should find for defendant Ingersoll-
Rand.

The district court stated that "[t]he requirement of warning is
simply not proper law as stated in this [proposed instruction],
as far as the Court knows, which says that if you give a
proper warning there isn't anything else that [Ingersoll-
Rand] had to do." Accordingly, the district court declined to
give the proposed instruction, and rejected Ingersoll-Rand's
post-trial motions which claimed that this ruling was errone-
ous. Before us, Ingersoll-Rand renews its argument that the
proposed "warnings" instruction was mandated by the law of
the District of Columbia, and that the district court therefore
erred by refusing to give it.

We review a district court's denial of a motion for judgment
as a matter of law de novo. Scott v. District of Columbia, 101
F.3d 748, 752 (D.C. Cir. 1996). Ingersoll-Rand's proposed
instruction would have directed the jury to "find for [the]
defendant" if it found "that the milling machine was accompa-
nied by adequate warnings which made the milling machine
safe for use if the warnings are followed." This instruction
assumes that an adequate warning by itself would immunize a
manufacturer from any liability caused by its defectively
designed product. This is not a correct statement of applica-
ble law.

In this diversity action we apply the law of the District of
Columbia. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d
549, 553 (D.C. Cir. 1993) (noting the extension of the Erie
doctrine to the District of Columbia). When interpreting the
common law of the District of Columbia, we follow the
decisions of the District of Columbia Court of Appeals, which
is, for Erie doctrine purposes, treated as if it were the highest

court of the state. See D.C. Code Ann. s 11-102 (1981).
Under District of Columbia law, as interpreted by the District
of Columbia Court of Appeals, a plaintiff seeking to recover in
strict liability must establish that the injury-causing product
was sold in "a defective and unreasonably dangerous condi-
tion." Warner Fruehauf Trailer Co., Inc. v. Boston, 654 A.2d
1272, 1276 (D.C. 1995). Rogers alleged that Ingersoll-Rand
sold the MT-6520 in "an unreasonably dangerous condition,"
because it lacked certain safety features, such as rear-view
mirrors, kill switches, and a sufficiently reliable back-up
alarm.

In Warner Fruehauf, the District of Columbia Court of
Appeals applied a "risk-utility balancing test" to analyze
whether a design defect was unreasonably dangerous. 654
A.2d at 1276. Under this test, a plaintiff "must show the
risks, costs and benefits of the product in question and
alternative designs, and that the magnitude of the danger
from the product outweighed the costs of avoiding the dan-
ger." Id. (internal quotation marks and citations omitted).
The Warner Fruehauf court held that under a risk-utility
analysis, a manufacturer "is entitled to defend a strict liability
claim based on defective design by showing that a warning
accompanied the product that reduced its dangers." Id. at
1278 (citation omitted, emphasis added). Significantly, the
court stated that a manufacturer could show that warnings
"reduced" the dangers of its products--not that warnings
could eliminate such dangers altogether. Indeed, the Warner
Fruehauf court explicitly noted that "while the adequacy of a
warning is relevant and may even tip the balance in the
decision whether a product is or is not defectively designed, it
is not the sole consideration." Id. (emphasis added). "A
warning," it added, "is only one of a product's many design
attributes that weigh in the balance of dangers against utility
... but could be a pivotal design attribute in a particular
case." Id. (citation omitted).

Ingersoll-Rand's proposed instruction does exactly what
the District of Columbia Court of Appeals said was impermis-
sible: it elevates the adequacy of its warnings to the sole
consideration in the risk-utility analysis. As Ingersoll-Rand

would have it, once the jury evaluates the milling machine's
warnings and finds them adequate, its job is over; it "should
find for [the] defendant." Since the "warnings" defense
would have instructed the jury that adequate warnings trump
all other factors--including the "magnitude of the danger
from the product," see id. at 1276--Ingersoll-Rand's pro-
posed instruction misstates the law of the District of Colum-
bia.

Ingersoll-Rand argues that our decision in Ferguson v.
F.R. Winkler GMBH & Co. KG, 79 F.3d 1221 (D.C. Cir.
1996), provides authority for its proposed instruction. In
Ferguson, a bakery employee sought to hold the manufactur-
er of a device known as a "string-line proofer" strictly liable
for injuries caused by the device. The proofer shuttled
shaped pieces of dough along a bakery production line. To
gain access to misshapen pieces of dough which could clog the
line, workers were instructed to press a button to shut down
the line, and then to remove an exterior panel from the
proofer to gain access to the dough. The plaintiff's employer
purchased such a proofer and modified it, replacing an exteri-
or panel with a hinged plexiglass door, which could be opened
while the proofer was moving. While on the job, the plaintiff
lifted the plexiglass door, attempting to clear away some
dough, and the moving proofer injured his arm. In analyzing
whether the proofer was unreasonably dangerous, we con-
cluded that the manufacturer could not have reasonably
foreseen that its product would be modified in such a danger-
ous way, and that there was little chance that such an injury
would have occurred if the proofer had not been so modified.
Id. at 1225-26.

We also considered the proofer's operations manual, which
instructed users not to reach into a moving proofer, and a
large sign on the proofer itself, which stated that the proofer
should not be opened while it was running. Id. at 1226. We
concluded that these "obvious and repeated warnings would
have, if heeded, eliminated the risk of the injury that [the
plaintiff] suffered." Id. (citing Restatement (Second) of
Torts s 402A cmt. j (1965) ("Where warning is given, the
seller may reasonably assume that it will be read and heeded;

and a product bearing such a warning, which is safe for use if
it is followed, is not in defective condition, nor is it unreason-
ably dangerous.")).

Importantly, our analysis took into account both the design
of the unmodified proofer (including its safety features) and
the accompanying warnings about its use. We never stated
that warnings alone will necessarily save a product from
being unreasonably dangerous. Indeed, we observed that
"the D.C. courts have never explicitly announced that ade-
quate warnings may cure a design defect." Id. at 1226. It is
thus not correct that a manufacturer may, under the law of
the District of Columbia, merely slap a warning onto its
dangerous product, and absolve itself of any obligation to do
more. Ingersoll-Rand's claim that "[c]learly, under Fergu-
son, a manufacturer who provides an adequate warning need
not take any other measures to protect against foreseeable
misuse" simply misstates our holding.

We do not mean to dispute that warnings may tip the
balance in a manufacturer's favor in individual cases. See
Warner Fruehauf, 654 A.2d at 1278 ("A warning ... could be
a pivotal design attribute in a particular case.") (citation
omitted). On the other hand, warnings need not be the
dispositive factor in every case. Here, for example, it seems
reasonably foreseeable that a worker with her back to a
milling machine would be in no position to "heed" a sign on
the machine instructing her to keep ten feet away. Under
these circumstances, a manufacturer may have a heightened
responsibility to incorporate additional safety features to
guard against foreseeable harm. See Restatement (Third) of
Torts: Products Liability s 2 cmt. l (1997) ("[W]arnings are
not ... a substitute for the provision of a reasonably safe
design.... Just as warnings may be ignored, so may obvi-
ous or generally known risks be ignored, leaving a residuum
of risk great enough to require adopting a safer design.").1

__________
1 Illustration 14 to this comment of the Restatement is squarely
on point:

The district court did not err when it refused to give the
"adequate warning, therefore no liability" instruction pro-
posed by Ingersoll-Rand, because that instruction misstates
the law of the District of Columbia. Ingersoll-Rand may
have been entitled to a less sweeping instruction on its
"warnings" theory, but it never proposed one. The district
court was under no obligation to tinker with the flawed
proposed instruction until it was legally acceptable. Cf. Par-
ker v. City of Nashua, New Hampshire, 76 F.3d 9, 12 (1st
Cir. 1996) ("[W]hen the instruction offered by the lawyer is
manifestly overbroad, the district judge may reject without
assuming the burden of editing it down to save some small
portion that may be viable.").

B.

The jury heard evidence that Ingersoll-Rand's MT-6520
milling machine had killed an 18-year-old named James Ledg-
erwood in Canada approximately a year before the Rogers
incident took place. As the district court instructed the jury,
evidence of the Ledgerwood accident was introduced for a
single purpose: to show that Ingersoll-Rand was on notice of
the alleged design defects of the MT-6520 before Rogers's

__________
Jeremy's foot was severed when caught between the blade and
compaction chamber of a garbage truck on which he was
working. The injury occurred when he lost his balance while
jumping on the back step of the garbage truck as it was moving
from one stop to the next. The garbage truck, manufactured
by XYZ Motor Co., has a warning in large red letters on both
the left and right rear panels that reads "DANGER--DO NOT
INSERT ANY OBJECT WHILE COMPACTION CHAMBER
IS WORKING--KEEP HANDS AND FEET AWAY." The
fact that adequate warning was given does not preclude Jere-
my from seeking to establish a design defect under Subsection
(b). The possibility that an employee might lose his balance
and thus encounter the shear point was a risk that a warning
could not eliminate and that might require a safety guard.
Whether a design defect can be established is governed by
Subsection (b).

(emphasis added).

subsequent injury. Before us, Ingersoll-Rand complains that
the district court incorrectly forbade it from introducing
additional information about the Ledgerwood accident. In
particular, Ingersoll-Rand offered--and the district court
disallowed--testimony which occurred at a coroner's inquest
into Ledgerwood's death. According to Ingersoll-Rand, the
excluded testimony, which consisted of the testimony of wit-
nesses and the remarks of the investigating coroner, would
have shown that "those investigating Mr. Ledgerwood's death
concluded that [Ledgerwood's] own carelessness--not a de-
fect in the MT-6520--caused his death." This fact, Inger-
soll-Rand continues, would have "negate[d] [the Ledgerwood]
accident's relevance as to notice of a defect." Ingersoll-Rand
sought to introduce this testimony through its representative,
who attended the inquest.

The trial court stated that the inquest testimony would be
excluded because it was hearsay. Ingersoll-Rand argues that
the district court's styling of the basis for exclusion was
incorrect. Ingersoll-Rand offered the testimony to address
the extent to which it was on notice of the milling machine's
alleged design defects. This is correct. By definition, such
testimony was not literally hearsay because it was not offered
"to prove the truth of the matter asserted" (i.e., that the
decedent's own carelessness caused his death), but rather to
prove that the defendant was not on notice of the alleged
design defect. See Fed. R. Evid. 801. This is not, of course,
to say that it was necessarily error to exclude the evidence,
only that the stated basis for the ruling was incorrect. It
matters not. Even if we assume the exclusion was erroneous,
such error was not reversible.

To determine whether we must reverse as a result of an
evidentiary error, we apply 28 U.S.C. s 2111, which provides:
"On the hearing of any appeal ... in any case, the court shall
give judgment after an examination of the record without
regard to errors or defects which do not affect the substantial
rights of the parties." Thus, if an error is harmless, the
judgment will stand. We consider three factors when decid-

ing if a given error is harmless: "If (1) the case is not close,
(2) the issue not central, or (3) effective steps were taken to
mitigate the effects of the error, the error is harmless."
Carter v. District of Columbia, 795 F.2d 116, 132 (D.C. Cir.
1986) (citation omitted).

After considering these factors, we conclude that the dis-
trict court's exclusion of the proffered testimony was harm-
less error, if it was error at all. First, the case was not close,
at least as to whether the Ledgerwood accident placed Inger-
soll-Rand on notice that the MT-6520 may have been defec-
tively designed. Ingersoll-Rand's argument proceeds from
the premise that where the proximate cause of injuries was
the negligence of the injured party rather than the danger-
ousness of the instrumentality of injury, the manufacturer of
the allegedly dangerous instrumentality is not placed on
notice of the dangerousness of its product. Indeed, appellant
argues that "the negligence of a prior accident victim negates
that accident's relevance as to notice of a defect." In apply-
ing that theory to the facts of the present case, Ingersoll-
Rand argues that Ledgerwood died, not just because he was
negligent, but because he was practically suicidal: "[a]n in-
vestigation by Canadian law enforcement officials and an
official Coroner's Inquest found that the Ledgerwood acci-
dent occurred because, inter alia, the decedent disregarded
an audible, beeping back-up alarm and the operator's warn-
ings." But the actual coroner's testimony cited by Ingersoll-
Rand mentions neither back-up alarms nor operator's warn-
ings:

[Ledgerwood] was working as a sideman on a pavement
grinder, which was preparing the road surface for resur-
facing. At one point he was directed to move out of the
way behind the grinder, which was reversing. He appar-
ently did that. The evidence would indicate that he
placed his shovel in a bracket at the side of the road
grinder, and in moving away he did not move fast
enough, or through inattention or whatever, he did not
observe that the track had pivoted and that his right heel

was too close to the track. The result was that according
to the witness, his heel was pinned by the track and of
course, once he was pinned he would be unable to move
it. Because of the noise of the machine he would not be
able to hear him cry out. The track simply walked up
his leg and ran over his thorax and head. He died as a
result of massive internal and head injuries.

Ingersoll-Rand's argument is flawed both in its premise
and its application. It cannot logically be the case that an
accident, caused either proximately or ultimately by the dan-
gerousness of an instrumentality, is rendered irrelevant as
notice of dangerousness to the manufacturer of that instru-
mentality by the intervening or concurrent negligence of
another, whether the injured party or a third person. How
much warning the manufacturer received from a given inci-
dent may be influenced by the importance of the additional
negligence in a given case, but the relevance per se of the
incident as notice can hardly be extinguished. Further, even
if we were to accept Ingersoll-Rand's shaky premise, it has
not carried its burden of establishing reversible error in the
district court's exclusion of the evidence in the present case.
Granted, the operator of the MT-6520 that killed Ledgerwood
testified that a "back up beeper" went off before the Ledger-
wood accident took place, and that it was his practice to use
hand signals to communicate with his co-workers. But the
fact that the examining coroner did not refer to this testimo-
ny suggests to us that he did not rely on it in reaching his
conclusions.

Furthermore, Ingersoll-Rand's assertion that it "was not
held responsible in any way for the Ledgerwood accident" is
undercut by the recommendations made by the coroner's jury
that investigated Ledgerwood's death. That jury recom-
mended the implementation of certain safety measures (in-
cluding additional ground personnel to oversee the operation
of the MT-6520, and that machine operators should be
trained and licensed), which would hardly seem necessary if
Ledgerwood's negligence indeed was the sole cause of his

death. Perhaps most importantly, the jury specifically rec-
ommended a design modification to the MT-6520: the instal-
lation of an "emergency shut off switch on both sides of the
machine accessible to ground personnel." After considering
the excluded testimony in context, we conclude that it is not
remotely likely that the proffered testimony would have
affected a jury's view of the role of the Ledgerwood incident
as notice of dangerousness to Ingersoll-Rand.

The second question we must answer when weighing
whether error is harmless is whether the issue was central.
Clearly, the issue of Ingersoll-Rand's notice of a design
defect is distinct from the central issue of whether such a
defect existed at all. The district court recognized as much
when it instructed the jury that "the report of the Ledger-
wood accident is not proof of any defect in the machine
involved in the accident." Having said this, we note that this
issue did bear on the jury's consideration of the question of
punitive damages, so that this factor is perhaps more favor-
able to Ingersoll-Rand's position than the first, but hardly
dispositive in its favor.

Finally, we consider whether effective steps were taken to
mitigate the effects of the error. The district court did not
rule out the proffered testimony completely; it only ruled
that it could not be introduced through the Ingersoll-Rand
representative who was on the witness stand at the time.
The district court's ruling specifically allowed for the possibil-
ity of Ingersoll-Rand's introducing this testimony through
the witnesses who actually testified at the Ledgerwood in-
quest. Ingersoll-Rand chose not to pursue this alternative.
The ruling, then, was not an outright ban on the introduction
of the evidence, but was only a limitation as to how that
evidence might be introduced. This strongly suggests that
any error the district court may have made was harmless.

After taking all of the prescribed factors into account, we
arrive at the conclusion that the district court's decision to
exclude testimony from the Ledgerwood inquest, while per-
haps error, does not warrant reversal. See 28 U.S.C. s 2111.

III. Conclusion

Ingersoll-Rand has raised several additional arguments in
addition to those mentioned above. Although we do not deem
it necessary to discuss them here, we have given full consider-
ation to each additional argument, and conclude that all of
them lack merit.

For the foregoing reasons, we affirm the judgment of the
district court.